EXHIBIT (c)(1)
Depositary Agreement
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This Depositary Agreement is entered into as of this 19th day of
May by and between The Southern Africa Fund, Inc., a Maryland corporation (the
"Company"), and BankBoston, N.A., a national banking association with its
principal offices in Boston, Massachusetts (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 1,201,420 outstanding shares of the Company's 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 May 19, 1999 (the "Offer to
Purchase"), and in the related Letter of Transmittal including the instructions
set forth therein (the "Letter of Transmittal") (the Offer to Purchase and the
"Letter of Transmittal" being collectively referred to as the "Tender Offer
Documents").
WHEREAS, the Tender Offer is being commenced on May 19, 1999, and
will expire at 12:00 Midnight Eastern Time, on June 16, 1999, 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 for the purpose of receiving and making payment
for, on behalf of the Company, Shares tendered pursuant to the terms of the
Tender Offer Documents. The Depositary hereby agrees to serve as such, upon the
terms and conditions set forth herein. In connection with such
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appointment, the Company has delivered to the Depositary a copy of the Tender
Offer Documents. The Company agrees to notify the Depositary of, and confirm
in writing, any extension or amendment of the Tender Offer or the Tender Offer
Documents.
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 stockholder 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; provided that the Company has reserved in the Tender
Offer Documents 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 Documents. Payment for Shares
tendered and purchased pursuant to the Tender Offer Documents shall be made only
after deposit with the Depositary of the certificates therefor, the Letter of
Transmittal and any other required documents.
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(c) A tendering stockholder may withdraw Shares tendered as
set forth in the Tender Offer Documents, in which event the Depositary 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.
(d) On each business day up to and including the Expiration
Date (as defined in the Offer to Purchase), the Depositary shall advise by
facsimile transmission to Xxxxxx X. Xxxxxxx, Xxxx X. 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 time of such facsimile transmission. The Depositary
shall also inform the aforementioned person, 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 date and time stamp 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 Notice of Guaranteed
Delivery submitted 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.
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(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.
(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 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
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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 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 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.
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 it an amount equal to
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the total stock transfer taxes, if any, payable by the Company pursuant to the
instructions of 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
Documents) of the Shares purchased to, or otherwise pursuant to the 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, which such rights arise by reason of
statutory or common law, by contract or otherwise.
4. Compensation 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 Schedule which fees shall include the compensation
of all subcontractors referred to in Section 11(B). The Depositary shall also be
entitled to reimbursement from the Company for all reasonable and necessary out-
of-pocket 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
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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, willful
misconduct or willful failure to perform any of the Depositary's obligation
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 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 as its own expense in the defense of
any such claim or proceeding, and, if it 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. 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 of this Section 5, the
term "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
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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 August
6, 1999 (the "Termination Date") or, prior to the Termination Date, upon 30
days' written notice by either party to the other. Upon termination of this
Agreement, all canceled certificates for Shares and related documentation will
be returned to the Company or agent designated by the Company
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:
If to the Company, to:
The Southern Africa Fund, Inc.
c/o Alliance Capital Management L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
XX, XX 00000
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
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9. Governing Law.
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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.
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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.
11. Assignment.
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A. Except as provided in Section 1O(B) below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
B. The Depositary may, without further consent on the part of
the Company, (i) subcontract for the performance hereof with Boston EquiServe
Limited Partnership or (ii) subcontract with other subcontractors for systems,
processing, and telephone and distribution services as may be required from time
to time; provided, however, that the Depositary shall be as fully responsible to
the Company for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
C. Except as explicitly stated elsewhere in this Agreement,
nothing under this Agreement shall be construed to give any rights or benefits
in this Agreement to anyone other than the Depositary and the Company, and the
duties and responsibilities undertaken pursuant to this Agreement shall be for
the sole and exclusive benefit of the Depositary and the Company. This Agreement
shall inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
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12. Third Party Beneficiaries
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This Agreement does not constitute an agreement for a
partnership or joint venture between the Depositary and the Company. Neither
party shall make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
13. Force Majeure
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In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage or other cause reasonably beyond its control,
such party shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such causes.
Performance under this Agreement shall resume when the affected party or parties
are able to perform substantially that party's duties.
14. Consequential Damages
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Neither party to this Agreement shall be liable to the other
party for any consequential, indirect, special or incidental damages under any
provision of this Agreement or for any consequential, indirect special or
incidental damages arising out of any act or failure to act hereunder even if
that party has been advised of or has foreseen the possibility of such damages.
15. Severability
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If any provision of this Agreement shall be held invalid,
unlawful or unenforceable the validity, legality and enforceability of the
remaining provisions shall not thereby in any be affected or impaired.
16. Confidentiality
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The Depositary and the Company agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement, and shall not be voluntarily disclosed to any other person, except as
may be required by law.
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17. Merger of Agreement
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This Agreement constitutes the entire agreement between the
parties hereto with respect to such subject matter, and supersedes any prior
agreement whether oral or written.
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.
THE SOUTHERN AFRICA BANKBOSTON, N.A.
FUND, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx XxXxxxx
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Xxxxxx X. Xxxxxx, Xx. Xxxxxx XxXxxxx
Title: Secretary Title: Managing Director
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Xxx Xxxxxxxx Xxxxxx Fund, Inc.
Exhibit A
Fee Schedule
Project Management $11,500.00
Per Letter of Transmittal for $ 9.00
Registered/Beneficial Holders
Per Letter of Transmittal Withdrawal $10.00
Per Guarantee of Delivery $15.00
Per Extension of Tender Offer $ 1,500.00
Items Not Covered
. All out-of-pocket expenses such as telephone line charges associated
with toll-free telephone calls, certificates, checks, postage,
stationery, wire transfers and excess material disposal will be billed
as incurred.
. Services not specified in the Depository Agreements, including any
services associated with new duties, legislation or regulatory front
which become effective after May 19, 1999.
. Reasonable legal review fees if referred to outside counsel.
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