EXHIBIT (c)(1)
DEPOSITARY AGREEMENT
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This Depositary Agreement is entered into as of this 10th day of December
by and between Alliance World Dollar Government Fund, Inc., a Maryland
Corporation (the "Company") and BankBoston, N.A., a national banking association
with its principal offices in Boston, Massachusetts (hereinafter referred to
from time to time as the "Depositary").
WHEREAS, the Company is making a tender offer (hereinafter referred to,
together with any amendment or extensions thereto, as the "Tender Offer") to
purchase 1,297,906 outstanding shares of the Company's Common Stock, par value
$0.01 per share (the "Shares"), upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated December 10, 1997 (the "Offer to
Purchase"), and in the related Letter of Transmittal ("Letter of Transmittal"),
including the instructions set forth therein.
WHEREAS, the Tender Offer is being commenced on December 10, 1997, and will
expire at 12:00 Midnight Eastern time on January 8, 1998, unless extended by the
Company as provided in the Offer to Purchase (the last date to which the Tender
Offer is extended and on which it expires is herein referred to as the
"Expiration Date").
WHEREAS, the Company desires that BankBoston, N.A. act as depositary in
connection with the Tender Offer, and BankBoston, N.A. has indicated its
willingness to do so.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Appointment of Depositary.
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The Company hereby appoints the Depositary to act as such in connection
with the Tender offer. In that capacity the Depositary will receive and make
payment for, on behalf of the Company, Shares tendered pursuant to the terms of
the Tender offer. The Depositary hereby agrees to serve as such, upon the terms
and conditions set forth herein. In connection with such appointment, the
Company has delivered to the Depositary a copy of the Offer to Purchase and the
Letter of Transmittal in connection with the Tender Offer. The Company
agrees to notify the Depositary of, and confirm in writing, any extension or
amendment of the Tender Offer.
2. Concerning the Depositary.
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The Depositary is hereby authorized and directed, and hereby agrees to the
following:
(a) The Depositary shall examine the Letters of Transmittal, the
certificates for Shares and the other documents delivered or mailed to the
Depositary 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, the Depositary shall forward the defective item
back to the shareholder to be corrected. 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 the Depositary 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.
(b) 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 the
Depositary of the certificates therefor, the Letter of Transmittal and any other
required documents.
(c) A tendering stockholder may withdraw Shares tendered, as set forth in
the Tender Offer, in which event the Depositary shall, as promptly as possible
after notification of
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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.
(d) On each business day up to and including the Expiration Date (as
defined in the Tender Offer), the Depositary shall advise by facsimile
transmission, to Xxxxxx X. Xxxxxx, Xx., Xxxx Xxxxxxx, and such other persons as
either of them may direct, of the number of Shares which have been duly tendered
on such day, stating separately the number of Shares tendered by Notices of
Guaranteed Delivery, the number of Shares tendered about which the Depositary
has questions concerning validity, and the cumulative number of Shares tendered
through the time of such facsimile transmission. The Depositary shall also
inform the aforementioned persons, and such other persons as may be designated,
upon request made from time to time, of such other information as he/she may
request, including, without limitation, the names and addresses of registered
holders of tendered Shares.
(e) The Depositary shall stamp as to the date and time of receipt all
Letters of Transmittal or facsimile transmissions submitted in lieu thereof, and
preserve such records in accordance with the Securities Exchange Act of 1934, as
amended, and other applicable law. The Depositary shall match Notices of
Guaranteed delivery submitted pursuant to the Tender Offer with the Share(s)
tendered pursuant thereto. If so instructed by the Company, the Depositary
shall telephone Eligible Institutions (as defined in the Offer to Purchase)
which have tendered a significant number of Shares by means of the
aforementioned procedures to ascertain information in connection therewith.
(f) The Depositary 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 the Depositary by
the Company or such other persons as it may authorize.
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(g) If, pursuant to the Offer to Purchase, the Company instructs the
Depositary not to accept the instructions and/or Shares received from a
tendering stockholder, the Depositary 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 the Depositary.
(h) In addition to the services the Depositary is to perform as provided
for herein, the Depositary shall perform as Depositary such other services as
are required or contemplated to be performed by the Depositary under the Tender
Offer documents, including, but not limited to, making proration computations,
returning to stockholders Shares tendered but not accepted for purchase and
responding to requests for information and documents.
(i) The Depositary:
(1) 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;
(2) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be requested of the
Depositary by the Company with respect to the Tender Offer;
(3) 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 the
Depositary 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;
(4) may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, facsimile transmission,
telegram or other document, or any
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security delivered to it, and reasonably believed by it to be genuine and to
have been signed by the proper party or parties;
(5) may rely on and shall be protected in acting upon written or oral
instructions from the Company with respect to any matter relating to its acting
as Depositary specifically covered by this Depositary Agreement;
(6) may consult with counsel satisfactory to it (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 it hereunder in good faith and in accordance with such advice or
opinion of such counsel;
(7) shall arrange for insurance protecting the Company and itself against
any liability arising out of the non-receipt by shareholders of certificates
sent by the Depositary; and
(8) 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.
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3. Deposits.
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(a) The Company will from time to time deposit or cause to be deposited
with the Depositary, as Depositary and 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 the Depositary then holds. The Company will deposit with the
Depositary or cause to be deposited with the Depositary an amount equal to the
total stock transfer taxes, if any, payable by the Company pursuant to the
instructions to the Letter of Transmittal in respect of the transfer of all the
Shares to be purchased which the Depositary holds. The Depositary 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, and (c) send a check for the
purchase price (less the amount, if any, of any stock transfer taxes and, if
applicable, adjusted in accordance with the provisions of the Tender Offer ) of
the Shares purchased to, or otherwise in accordance with instructions of, each
of the stockholders who has tendered Shares.
(b) It is understood and agreed that the securities, money, assets or
property (the "Property") to be deposited with or received by the Depositary
from the Company shall be held solely for the benefit of the Company and
stockholders tendering Shares, as their interests may appear. The Depositary
hereby waives any and all rights of lien, attachment or set-off whatever, if
any, against the Property so to be deposited, whether such rights arise by
reason of statutory or common law, by contract or otherwise.
4. Compensation of the Depositary by the Company.
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The Company shall pay fees for the services rendered hereunder, as set
forth in the attached Fee and Service Schedule. The Depositary shall also be
entitled to reimbursement from the Company for all reasonable and necessary
expenses paid or incurred by it in connection with the administration by the
Depositary of its duties hereunder.
5. Indemnification.
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The Company covenants and agrees to indemnify and to hold the Depositary
harmless against any costs, expenses (including reasonable fees of its legal
counsel), losses or damages, which may be paid, incurred or suffered by or to
which it may become subject, arising from or out of, directly or indirectly, any
claims or liability resulting from its actions as Depositary pursuant hereto;
provided, that such covenant and agreement does not extend to, and the
Depositary shall not be indemnified with respect to, such costs, expenses,
losses and damages incurred or suffered by the Depositary as a result of, or
arising out of, its negligence, bad faith, or willful misconduct or
willful failure to perform any of the Depositary's obligations hereunder. In no
case will the Company be liable under this indemnity with respect to any claim
against the Depositary unless, promptly after the receipt by the Depositary of
notice of any assertion of demand or claim or the commencement of any action,
suit, proceeding or investigation, or of the service of any summons on the
Depositary, or other first legal process giving information as to the nature
and basis of the claim, the Depositary shall, if a claim in respect thereof is
to be made against the Company, notify the Company thereof in writing. The
Company shall be entitled to participate at its own expense in the defense of
any such claim or proceeding, and, if the Company so elects at any time after
receipt of such notice, it may assume the defense of any suit brought to enforce
any such claim or of any other legal action or proceeding. 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 retained by you. For the purposes
hereof, the term
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"expense or loss" means any amount paid or payable to satisfy
any claim, demand, action, suit or proceeding settled with the express written
consent of the Depositary, and the Company, and all reasonable costs and
expenses, including, but not limited to, reasonable counsel fees and
disbursements, paid or incurred in investigating or defending against any such
claim, demand, action, suit, proceeding or investigation.
6. Further Assurance.
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From time-to-time and after the date hereof, the Company shall deliver or
cause to be delivered to the Depositary such further documents and instruments
and shall do and cause to be done such further acts as the Depositary shall
reasonably request (it being understood that the Depositary shall have no
obligation to make any such request) to carry out more effectively the
provisions and purposes of this Depositary Agreement, to evidence compliance
herewith or to assure itself that it is protected in acting hereunder.
7. Term.
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This Agreement shall remain in effect until terminated on February 15,
1998 (the "Termination Date") or, prior to the Termination Date, upon 30 days'
written notice by either party to the other.
8. Notices.
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Until further notice in writing by either party hereto to the other party,
all written reports, notices and other communications between the Depositary and
the Company required or permitted hereunder shall be delivered or mailed by
first class mail, postage prepaid, addressed as follows:
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If to the Company, to:
Alliance World Dollar Government Fund, Inc.
c/o Alliance Capital Management L.P.
1345 Avenue of the Americas
N.Y., N.Y 10105
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to the Depositary, to:
BankBoston, N.A.
c/o Boston EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Reorganization Department
9. Governing Law.
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.
10. Counterparts.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Depositary Agreement to
be executed by their respective officers, hereunto duly authorized, as of the
day and year first above written.
ALLIANCE WORLD DOLLAR BANKBOSTON, N.A.
GOVERNMENT INCOME FUND, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxxxx
__________________________ __________________________
Xxxxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxxxx
Title: Secretary Title: Administration Manager
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ALLIANCE WORLD DOLLAR GOVERNMENT FUND, INC.
EXHIBIT A
FEE SCHEDULE
Administrative Fee $5,000.00
Midnight Expiration Fee $2,500.00
Letter of Transmittal $7.50 per Letter of Transmittal
Processed Per Registered or
Beneficial Owner
Withdrawal, Defects or $10.00 per item
Guarantees Of Delivery
Per Extension of Offer $1,500.00
Items not included:
All out-of-pocket expenses such as telephone line charges associated with
toll-free telephone calls, requests for and distribution of materials,
overprinting, cost of checks, postage, insurance, stationery, wire transfers,
excess material disposal, etc. will be billed as incurred.
A-1
