DEPOSITARY AGREEMENT
Dated: as of February 18, 0000
Xxxxx Xxxxxx Bank and Trust Company
X/X Xxxxxx XxxxXxxxx
000 Xxxxxx Xxxxxx
Mail Stop 45-02-53
Xxxxxx, Xxxxxxxxxxxxx 00000
Gentlemen:
Xxxxxxxx Asian Growth Fund, Inc. a Maryland corporation (the "Company"), is
making a tender offer (hereinafter referred to, together with any amendment or
extensions thereof, as the "Tender Offer") to purchase outstanding shares of
Common Stock, par value of $0.01 per share (the "Shares"), upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated February 19,
1997 (the "Offer to Purchase"), and in the related Letter of Transmittal
("Letter of Transmittal"), including the instructions set forth therein.
Definitive copies of each document being distributed by the Company to its
stockholders in connection with the Tender Offer have been or will be delivered
to you.
The Tender Offer is being made on February 19, 1997, and will expire at 5:00
p.m., New York City time, on March 20, 1997, unless extended by the Company as
provided in the Tender Offer (the last date to which the Tender Offer is
extended and on which it expires is herein referred to as the "Expiration
Date").
This will confirm our agreement with you to act as the Depositary in
connection with the Tender Offer. In such capacity you will receive and make
payment for, on behalf of the Company, Shares tendered pursuant to the terms of
the Tender Offer. In carrying out your duties as the Depositary in connection
with the Tender Offer, you are to act in accordance with the following
instructions:
1. You shall examine the Letters of Transmittal, the certificates for Shares
and the other documents delivered or mailed to you in connection with tenders of
Shares to ascertain whether they are completed and executed in accordance with
the instructions set forth in the Letters of Transmittal. In the event any
Letter of Transmittal has been improperly completed or executed, or the
certificates for Shares accompanying such Letter of Transmittal are not in
proper form for transfer (as required by the aforesaid instructions), or if some
other irregularity in connection with any tender of Shares exists, you shall
endeavor to cause such action to be taken as is necessary to correct such
irregularity. Determination of all questions as to the validity, form,
eligibility (including timeliness of receipt) and acceptance of any Shares
tendered or delivered shall be determined by you on behalf of the Company in the
first instance, but final decisions on all such matters shall be made by the
Company. The Company will reserve in the Tender Offer the absolute right to
reject any or all tenders of any particular Shares not in appropriate form or
the acceptance of which would, in the opinion of the Company's counsel, be
unlawful and to waive any of the conditions of the Tender Offer or any defect or
irregularity in the tender of any Shares, and the Company's interpretation of
the terms and conditions of the Tender Offer will be final. Tendering
shareholders are required to tender all shares actually and constructively owned
as of the date of purchase of Shares by the Company pursuant to the Tender Offer
("complete position tender"). Tenders that are not complete position tenders
shall be considered invalid and, if not corrected by the Expiration Date, shall
be rejected.
2. All Shares must be tendered in accordance with the terms and conditions
set forth in the Tender Offer. Payment for Shares tendered and purchased
pursuant to the Tender Offer shall be made only after deposit, with you of the
certificates therefor, the Letter of Transmittal and any other required
documents.
3. A tendering stockholder may withdraw Shares tendered as set forth in
Section 3 of the Offer to Purchase, in which event you shall, as promptly as
possible after notification of such withdrawal, return such Shares to, or in
accordance with the instruction of, such stockholder and such Shares shall no
longer be considered properly tendered. All questions as to the form and
validity of notices of withdrawal,
including timeliness of receipt, shall be determined by the Company, whose
determination shall be final and binding.
4. On each business day up to and including the Expiration Date (as defined
in Section 1 of the Offer to Purchase), you shall advise by facsimile
transmission, not later than 5:00 p.m., Boston time, the Company and such other
persons as the Company may direct, of the number of Shares which have been duly
tendered on such day, stating separately the number of Shares tendered by
Guarantees of Delivery pursuant to Section 2 of the Offer to Purchase, the
number of Shares tendered about which you have questions concerning validity and
the cumulative number of Shares tendered through time of such facsimile
transmission. You shall also inform the Company, and such other persons as may
be designated by the Company, upon request made from time to time, of such other
information as the Company may request, including, without limitation, the names
and addresses of registered holders of tendered Shares.
5. Letters of Transmittal or facsimile transmissions submitted in lieu
thereof pursuant to Section 2 of the Offer to Purchase shall be stamped by you
as of the date and time of receipt thereof and preserved by you as permanent
records until you are otherwise instructed by the Company. You are to match
Guarantees of Delivery submitted pursuant to Section 2 of the Offer to Purchase
with the Share(s) tendered pursuant thereto. If so instructed by the Company,
you shall telephone Eligible Institutions (as defined in Section 2 of the Offer
to Purchase) which have tendered a significant number of shares by means of the
aforementioned procedures to ascertain information in connection therewith.
6. The Company will notify you of, and confirm in writing, any extension or
amendment of the Tender Offer.
7. You shall follow and act upon any amendments, modifications or
supplements to these instructions, and upon any further instructions in
connection with the Tender Offer, any of which may be given to you by the
Company or such other persons as it may authorize.
8. The Company will from time to time deposit or cause to be deposited with
you, as agent for tendering holders of Shares, within a reasonable time after
the Company's acceptance for purchase of tendered Shares, an amount equal to the
aggregate purchase price of all Shares to be purchased which you then hold. The
Company will deposit with you or cause to be deposited with you an amount equal
to the total stock transfer taxes, if any, payable by the Company pursuant to
the provisions of Instruction 6 of the Letter of Transmittal in respect of the
transfer of all the Shares to be purchased which you hold. You shall thereupon,
as promptly as possible, (a) purchase and affix appropriate stock transfer tax
stamps, (b) cause the tendered Shares which have been thus paid for to be
transferred and delivered to the Company by you, and (c) send a check for the
purchase price (less the amount, if any, of any stock transfer taxes which under
Instruction 6 of the Letter of Transmittal are to be deducted from the purchase
price and, if applicable, adjusted in accordance with the provisions of the
Tender Offer) of the Shares purchased to, or in accordance with the instruction
of, each of the stockholders who has tendered Shares deposited with you.
9. If, pursuant to the provisions of Instruction 4 of the Letter of
Transmittal, fewer than all the Shares evidenced by any certificate submitted to
you are purchased pursuant to the Tender Offer, you shall, promptly after the
Expiration Date, return or cause to be returned a new certificate for the
remainder of Shares not being tendered to, or in accordance with the instruction
of, each of such stockholders who has made a partial tender of Shares deposited
with you.
10. If, pursuant to the Tender Offer, the Company does not accept the
receipt of instructions from a tendering stockholder, you shall return the
certificates for such shares to, or in accordance with the instructions of, the
persons who deposited the same, together with a letter of notice, in form
satisfactory to the Company, explaining why the deposited Shares are being
returned, and return to the Company any surplus funds deposited by the Company
with you.
11. As Depositary you:
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(a) shall have no obligation to make payment for any tendered Shares
unless the Company shall have provided the necessary funds to pay in full
all amounts due and payable with respect thereto;
(b) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be requested of you by the Company
with respect to the Tender Offer;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any stock certificates or the Shares represented thereby deposited with you
pursuant to the Tender Offer and will not be required and will make no
representations as to the validity, value or genuineness of the Tender
Offer;
(d) shall not initiate any legal action hereunder without written
approval of the Company and then only upon such reasonable indemnity as you
may request;
(e) may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, letter, facsimile transmission, telegram or
other document, or any security delivered to you, and reasonably believed by
you to be genuine and to have been signed by the proper party or parties;
(f) may rely on and shall be protected in acting upon written or oral
instructions with respect to any matter relating to your acting as
Depositary specifically covered by this Depositary Agreement, or
supplementing or qualifying any such action, of the Company; or
(g) may consult with counsel satisfactory to you (including counsel for
the Company) and the written advice or opinion of such counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in accordance with
such advice or opinion of such counsel;
(h) shall arrange for insurance protecting the Company and yourself
against any liability arising out of the loss, destruction or non-delivery
of checks or certificates for any cause; and
(i) shall not at any time advise any person as to the wisdom of making
any tender pursuant to the Tender Offer, the value of the Shares or as to
any other financial or legal aspect of the Tender Offer or any transaction
related thereto.
12. It is understood and agreed that the securities, money, assets or
property (the "Property") to be deposited with or received by you as Depositary
from the Company constitute a special, segregated account, held solely for the
benefit of the Company and stockholders tendering Shares, as their interests may
appear, and the Property shall not be commingled with the securities, money,
assets or properties of you or any other person, firm or corporation. You hereby
waive any and all rights of lien, attachment or set-off whatsoever, if any,
against the Property so to be deposited, whether such rights arise by reason of
statutory or common law, by contract or otherwise.
13. For services rendered as Depositary hereunder, you shall be entitled to
payment of a $6,000 Flat Fee, which does not include out of pocket expenses,
such as, but not limited to postage, form cost, printing, and envelopes. Out of
pocket expenses will be billed to the Company as incurred.
14. The Company covenants and agrees to indemnify and to hold you harmless
against any costs, expenses (including reasonable fees of your legal counsel),
losses or damages, which may be paid, incurred or suffered by or to which you
may become subject, arising from or out of, directly or indirectly, any claims
or liability resulting from your actions as Depositary pursuant hereto; PROVIDED
that such covenant and agreement does not extend to, and you shall not be
indemnified with respect to, such costs, expenses, losses and damages incurred
or suffered by you as a result of, or arising out of, your negligence, bad
faith, or willful failure to perform any of your obligations hereunder. In no
case will the Company be liable under this indemnity with respect to any claim
against you unless, promptly after you have received any written assertion of a
claim or have been served with summons or other first legal process giving
information as to the nature and basis of the claim, you notify the Company, by
letter or by cable or telex confirmed by letter,
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of the written assertion of such claim against you or of any action commenced
against you or of the service of any summons on you, or other first legal
process giving information as to nature and basis of the claim. The Company will
be entitled to participate as its own expense in the defense of any such claim.
If the Company so elects at any time after receipt of such notices and agrees in
writing that such claim is a claim for which you are entitled to be indemnified
and held harmless hereunder or if you in such notice request and the Company
agrees, the Company will assume the defense of any suit brought to enforce any
such claim. In the event the Company assumes the defense of any such suit, the
Company may select counsel of its own choosing for such purpose and the Company
will not be liable for the fees and expenses of any additional counsel
thereafter retained by you.
15. This Depositary Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts and shall inure to
the benefit of and the obligations created hereby shall be binding upon the
successors and assigns of the parties hereto. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto and
their respective heirs, successors and permitted assigns.
16. This Depositary Agreement may be executed in separate counterparts, each
of which when executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
If the foregoing is acceptable to you, please acknowledge receipt of this
letter and confirm the arrangements herein provided by signing and returning the
enclosed copy.
Very truly yours,
By: /s/ Xxxxxxxxx Xxx
Assistant Secretary
ACCEPTANCE AS OF THE DATE HEREOF:
By: /s/ Xxxxxxx Xxxxxxxx
Title: Administration Manager
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