EXHIBIT (d)(1)
[MELLON GRAPHIC OMITTED]
MELLON INVESTOR SERVICES
A Mellon Financial Company(SM)
DEPOSITARY AND INFORMATION AGENT AGREEMENT
THIS DEPOSITARY AGREEMENT (this "Agreement") between Delaware
Investments Dividend and Income Fund, Inc., a Maryland corporation (the
"Purchaser"), and Mellon Investor Services LLC, a New Jersey limited liability
company ("Mellon"), is dated as of May __, 2005
1. APPOINTMENT.
(a) Purchaser is offering to purchase up to 10% of its issued and
outstanding shares of Common Stock, $0.01 par value (the "Shares"), for cash,
upon the terms and conditions set forth in its Offer to Purchase dated June 3,
2005 (the "Offer to Purchase") and in the related letter of transmittal (which
shall include the Internal Revenue Service Form W-9) (the "Letter of
Transmittal"), copies of which are attached hereto as Exhibits A and B,
respectively, and which together, as they may be amended from time to time,
constitute the "Offer." Purchaser hereby appoints Mellon to act as depositary in
connection with the Offer and Mellon hereby accepts such appointment in
accordance with and subject to the terms and conditions set forth in this
Agreement.
(b) The "Expiration Date" for the Offer shall be 5:00 p.m. New York
City time, on June 29, 2005 unless and until the Purchaser shall have extended
the period of time for which the Offer is open, in which event the term
"Expiration Date" shall mean the latest time and date at which the Offer, as so
extended by the Purchaser from time to time, shall expire. All terms not defined
herein shall have the same meaning as in the Offer.
2. TENDER OF SHARES. Mellon, in its capacity as depositary, will receive
tenders of shares. Subject to the terms and conditions of this Agreement, Mellon
is authorized to accept such tenders of shares in accordance with the Offer, and
to act in accordance with the following instructions:
(a) Shares shall be considered validly tendered to Mellon only if
tenders of shares are made in accordance with the terms and conditions set forth
in the Offer to Purchase, and:
(i) Mellon receives prior to the Expiration Date (x)
certificates for such Shares, (or a Confirmation (as defined in paragraph (b)
below) relating to such Shares) and (y) a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) or an Agent's Message (as defined
in paragraph (b) below) relating thereto; or
(ii) Mellon receives (x) a Notice of Guaranteed Delivery (as
defined in paragraph (b) below) relating to such Shares from an Eligible
Institution (as defined in paragraph (b) below) prior to the Expiration Date and
(y) certificates for such Shares (or a Confirmation relating to such Shares) and
either a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) or an Agent's Message relating thereto at or prior to 5:00
P.M., New York City time, on the third New York Stock Exchange, Inc. (the
"NYSE") trading day after the date of execution of such Notice of Guaranteed
Delivery; and
(iii) in the case of either clause (i) or (ii) above, if
applicable, 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 Mellon on behalf of the Purchaser in the first
instance, but the Purchaser retains full discretion to make a final
determination of the adequacy of the items received, as provided in Section 8
hereof.
(b) For the purpose of this Agreement:
(i) a "Confirmation" shall be a confirmation of book-entry
transfer of Shares into a Mellon account at The Depository Trust Company (the
"Book-Entry Transfer Facility") to be established and maintained by Mellon in
accordance with Section 3 hereof;
(ii) a "Notice of Guaranteed Delivery" shall be a notice of
guaranteed delivery substantially in the form attached as Exhibit C hereto or a
telegram, telex, facsimile transmission or letter substantially in such form, or
if sent by a Book-Entry Transfer Facility, a message transmitted through
electronic means in accordance with the usual procedures of such Book-Entry
Transfer Facility and Mellon substantially in such form; provided, however, that
if such notice is sent by a Book-Entry Transfer Facility through electronic
means, it must state that such Book-Entry Transfer Facility has received an
express acknowledgment from the participant on whose behalf such notice is given
that such participant has received and agrees to be bound by the form of such
notice;
(iii) an "Eligible Institution" shall be a member firm of a
national securities exchange registered with the Securities and Exchange
Commission or of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in the United
States; and
(iv) an "Agent's Message" shall be a message transmitted
through electronic means by a Book-Entry Transfer Facility, in accordance with
the normal procedures of such Book-Entry Transfer Facility and Mellon, to and
received by Mellon and forming part of a Confirmation, which states that such
Book-Entry Transfer Facility has received an express acknowledgment from the
participant in such Book-Entry Transfer Facility tendering the Shares which are
the subject of such Confirmation that such participant has received and agrees
to be bound by the terms of the Letter of Transmittal, and that the Purchaser
may enforce such agreement against such participant. The term Agent's Message
shall also include any hard copy printout evidencing such message generated by a
computer terminal maintained at Mellon's office.
(c) Purchaser acknowledges that, in connection with the Offer, Mellon
may enter into agreements or arrangements with a Book-Entry Transfer Facility
that, among other things, provide that (i) delivery of an Agent's Message will
satisfy the terms of the Offer with respect to the Letter of Transmittal, (ii)
such agreements or arrangements are enforceable against the Purchaser by such
Book-Entry Transfer Facility or participants therein and (iii) Mellon, as
depositary, is authorized to enter into such agreements or arrangements on
behalf of the Purchaser. Without limiting any other provision of this Agreement,
Mellon is expressly authorized to enter into any such agreements or arrangements
on behalf of the Purchaser and to make any necessary representations or
warranties in connection thereunder, and any such agreement or arrangement shall
be enforceable against the Purchaser.
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3. BOOK-ENTRY ACCOUNT. Mellon shall take all commercially reasonable steps
to establish and, subject to such establishment, maintain an account at each
Book-Entry Transfer Facility for book-entry transfers of Shares, as set forth in
the Letter of Transmittal and the Offer to Purchase. Mellon will maintain the
Book Entry account until all Shares tendered pursuant to the Offer shall have
been subject to payment or returned.
4. PROCEDURE FOR DISCREPANCIES. Mellon shall follow its regular procedures
to attempt to reconcile any discrepancies between the number of Shares that any
Letter of Transmittal may indicate are owned by a surrendering stockholder and
the number that the Record Stockholders List indicates such stockholder owned of
record as of the Expiration Date. In any instance where Mellon cannot reconcile
such discrepancies by following such procedures, Mellon will consult with the
Purchaser for instructions as to the number of Shares, if any, Mellon is
authorized to accept for exchange. In the absence of such instructions, Mellon
is authorized not to accept any such Shares for exchange and will return to the
surrendering stockholder (at Mellon's option by either first class mail under a
blanket surety bond or insurance protecting Mellon and the Purchaser from losses
or liabilities arising out of the non-receipt or non-delivery of Shares or by
registered mail insured separately for the value of such Shares), to such
stockholder's address as set forth in the Letter of Transmittal, any
certificates for Shares surrendered in connection therewith, the related Letters
of Transmittal and any other documents received with such Shares.
5. LOST CERTIFICATES. If any holder of Shares as of the Expiration Date
reports to Mellon that his or her failure to surrender a certificate
representing any Shares registered in his or her name at the Expiration Date
according to the Record Stockholders List is due to the theft, loss or
destruction of such certificate, upon receipt from such stockholder of an
affidavit of such theft, loss or destruction and a bond of indemnity, both in
form and substance satisfactory to Mellon and in compliance with any other
applicable requirements, Mellon will effect issuance of certificates for new
Shares to the former stockholder as though the certificate for Shares had been
surrendered.
6. TREATMENT OF RESTRICTIVE LEGENDS. All certificates representing Shares
are eligible to make a tender of those shares pursuant to Section 2 hereof.
7. DATE/TIME STAMP. Each document received by Mellon relating to its
duties hereunder shall be dated and time stamped when received.
8. PROCEDURE FOR DEFICIENT ITEMS.
(a) Mellon will examine any certificate representing Shares, Letter of
Transmittal (or facsimile thereof), Notice of Guaranteed Delivery or Agent's
Message and any other document (including any checks or money orders payable to
the Purchaser) required by the Letter of Transmittal received by Mellon to
determine whether any tender may be defective. In the event Mellon concludes
that (i) any Letter of Transmittal, Notice of Guaranteed Delivery, Agent's
Message or other document has been improperly completed, executed or
transmitted, (ii) any of the certificates for Shares is not in proper form for
transfer (as required by the aforesaid instructions) (iii) service fee checks or
money orders ("service fee checks") are not properly executed or timely
received, or (iv) if some other irregularity in connection with the tender of
Shares exists, then Mellon is authorized, subject to subsection (b) below, to
advise the tendering stockholder, or transmitting Book-Entry Transfer Facility,
as the case may be, of the existence of the irregularity, but Mellon is not
authorized to accept any tender not in accordance with the terms and subject to
the conditions set forth in the Offer, or any other tender which Mellon deems to
be defective, unless Mellon shall have received from the Purchaser the Letter of
Transmittal that was surrendered (or if the tender was made by means of a
Confirmation containing an Agent's Message, a written notice), duly dated and
signed by an authorized officer of the Purchaser, indicating that any defect or
irregularity in such tender has been cured or waived and that such tender has
been accepted by the Purchaser.
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(b) Promptly upon concluding that any tender is defective, Mellon
shall, after consultation with Purchaser, use reasonable efforts in accordance
with Mellon's regular procedures to notify the person tendering such Shares, or
Book-Entry Transfer Facility transmitting the Agent's Message, as the case may
be, of such determination and, when necessary, return the certificates and/or
service fee checks involved to such person in the manner described in Section 12
hereof. The Purchaser shall have full discretion to determine whether any tender
is complete and proper and shall have the absolute right to reject any or all
tenders of any particular Shares determined by it not to be in proper form and
to determine whether the acceptance of or payment for such tenders may, in the
opinion of counsel for the Purchaser, be unlawful; it being specifically agreed
that Mellon shall have neither discretion nor responsibility with respect to
these determinations. To the extent permitted by applicable law, the Purchaser
also reserves the absolute right to waive any of the conditions of the Offer or
any defect or irregularity in the tender of any particular Shares. The
interpretation by the Purchaser of the terms and conditions of the Offer to
Purchase, the Letter of Transmittal and the instructions thereto, a Notice of
Guaranteed Delivery or an Agent's Message (including without limitation the
determination of whether any tender is complete and proper) shall be final and
binding.
(c) If less than all of the Shares validly tendered pursuant to the
Offer are to be accepted because the Offer is oversubscribed by the Expiration
Date, Mellon shall pro rate the Shares pursuant to (i) the terms and conditions
of the Offer to Purchase and (ii) any instructions provided to Mellon by
Purchaser regarding such proration. Mellon shall maintain accurate records as to
all Shares tendered prior to or on the Expiration Date.
9. REPORT OF TENDER ACTIVITY. At 11:00 a.m. New York City time, or as
promptly as practicable thereafter on each business day, or more frequently if
reasonably requested as to major tally figures, Mellon shall advise each of the
parties named below by telephone as to, based upon a preliminary review (and at
all times subject to final determination by Purchaser), as of the close of
business on the preceding business day or the most recent practicable time prior
to such request, as the case may be: (i) the number of Shares duly tendered on
such day; (ii) the number of Shares duly tendered represented by certificates
physically held by Mellon on such day; (iii) the number of Shares represented by
Notices of Guaranteed Delivery on such day; (iv) the number of Shares withdrawn
on such day; and (v) the cumulative totals of Shares in categories (i) through
(iv) above:
(a) ▇.▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Delaware Investments - Legal Department,
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇, 215.255.1591.
(b) ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Delaware Investments - T/A Systems Control
Project Manager, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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Mellon shall furnish to each of the above-named persons a written report
confirming the above information that has been communicated orally on the day
following such oral communication as well as any other information reasonably
requested from time to time. Mellon shall furnish to the Dealer-Manager (as
defined in the Offer to Purchase) and the Purchaser, such reasonable
information, to the extent such information has been furnished to Mellon, on the
tendering stockholders as may be requested from time to time.
Mellon shall furnish to the Purchaser, upon request, master lists of
Shares tendered for purchase, including an A-to-Z list of the tendering
stockholders.
10. INSTRUCTIONS. Any instructions given to Mellon orally, as permitted by
any provision of this Agreement, shall be confirmed in writing by the Purchaser
or the Dealer-Manager, as the case may be, as soon as practicable. Mellon shall
not be liable or responsible and shall be fully authorized and protected for
acting, or failing to act, in accordance with any oral instructions which do not
conform with the written confirmation received in accordance with this Section.
11. NOTICE OF WITHDRAWAL. In accordance with the following conditions,
Mellon will return to any person tendering Shares, in the manner described in
Section 12 hereof, any certificates representing Shares (and, if a complete
withdrawal, the service fee checks) tendered by such person but duly withdrawn
pursuant to the Offer to Purchase. To be effective, a written, telegraphic,
telex or facsimile transmission notice of withdrawal must be received by Mellon,
within the time period specified for withdrawal in the Offer to Purchase, at
Mellon's address set forth on the back page of the Offer to Purchase. Any notice
of withdrawal must specify the name of the person having deposited the Shares to
be withdrawn, the number of Shares to be withdrawn and, if the certificates
representing such Shares have been delivered or otherwise identified to Mellon,
the name of the registered holder(s) of such Shares as set forth in such
certificates. If the certificates have been delivered to Mellon, then prior to
the release of such certificates the tendering stockholder must also submit the
certificate number(s) shown on the particular certificates evidencing such
Shares and the signature on the notice of withdrawal must be guaranteed by an
Eligible Institution. Mellon is authorized and directed to examine any notice of
withdrawal to determine whether it believes any such notice may be defective. In
the event Mellon concludes that any such notice is defective it shall, after
consultation with and on the instructions of the Purchaser, use reasonable
efforts in accordance with its regular procedures to notify the person
delivering such notice of such determination. All questions as to the form and
validity (including time of receipt) of notices of withdrawal will be determined
by the Purchaser in its sole discretion, whose determination shall be final and
binding. Any Shares so withdrawn shall no longer be considered to be properly
tendered unless such Shares are re-tendered prior to the Expiration Date
pursuant to Section 2 hereof.
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12. RETURN OF SHARES. If, pursuant to the terms and conditions of the
Offer, the Purchaser has notified Mellon that it does not accept certain of the
Shares tendered or purported to be tendered or a stockholder withdraws any
tendered Shares, Mellon shall promptly return the deposited certificates (and,
if a complete withdrawal, the service fee checks) for such Shares, together with
any other documents received, to the person who deposited the same. Certificates
for such unpurchased Shares shall be forwarded by Mellon, at its option, by: (i)
first class mail under a blanket surety bond protecting Mellon and the Purchaser
from losses or liabilities arising out of the non-receipt or non-delivery of
such Shares; or (ii) registered mail insured separately for the value of such
Shares. If any such Shares were tendered or purported to be tendered by means of
a Confirmation containing an Agent's Message, Mellon shall notify the Book-Entry
Transfer Facility that transmitted said Confirmation of the Purchaser's decision
not to accept the Shares.
13. AMENDMENT/EXTENSION OF OFFER. Any amendment to or extension of the
Offer, as the Purchaser shall from time to time determine, shall be effective
upon notice to Mellon from the Purchaser given prior to the time the Offer would
otherwise have expired, and shall be promptly confirmed by the Purchaser in
writing; provided that Mellon may rely on and shall be authorized and protected
in acting or failing to act upon any such notice even if such notice is not
confirmed in writing or such confirmation conflicts with such notice. If at any
time the Offer shall be terminated as permitted by the terms thereof, the
Purchaser shall promptly notify Mellon of such termination.
14. DISTRIBUTION OF ENTITLEMENTS.
(a) If under the terms and conditions set forth in the Offer to
Purchase the Purchaser becomes obligated to accept and pay for Shares tendered,
upon instruction by the Purchaser and as promptly as practicable, but in any
event not later than 5:00 p.m., New York City time, on the fifth NYSE trading
day after the latest of: (i) the Expiration Date; (ii) the physical receipt by
Mellon of a certificate or certificates representing tendered Shares (in proper
form for transfer by delivery), a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof) or a Confirmation including an Agent's
Message and any other documents required by the Letter of Transmittal; and (iii)
the deposit by the Purchaser with Mellon of sufficient federal or other
immediately available funds to pay, subject to the terms and conditions of the
Offer, all stockholders for whom checks representing payment for Shares are to
be drawn, less any adjustments required by the terms of the Offer, and all
applicable tax withholdings, Mellon shall deliver or cause to be delivered to
the tendering stockholders and designated payees, consistent with this Agreement
and the Letter of Transmittal, official bank checks of Mellon, as agent for the
Purchaser, and payable through Mellon in the amount of the applicable purchase
price specified in the Offer (less any applicable tax withholding) for the
Shares theretofore properly tendered and purchased under the terms and
conditions of the Offer. The Purchaser will also deposit with Mellon, upon
request, federal or other immediately available funds in an amount equal to the
total stock transfer taxes or other governmental charges, if any, payable in
respect of the transfer or issuance to the Purchaser or its nominee or nominees
of all Shares so purchased. Mellon shall apply to the proper authorities for the
refund of money paid on account of such transfer taxes or other governmental
charges. On receipt of such refund, Mellon will promptly pay over to the
Purchaser all money refunded.
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(b) At such time as the Purchaser shall notify Mellon, Mellon shall
request the transfer agent for the Shares to cancel and retire all Shares
purchased pursuant to the Offer.
(c) Mellon hereby waives any and all rights of lien, attachment or set
off whatsoever, if any, against the securities, money, assets or property that
are deposited with or received by Mellon from Purchaser, whether such rights
arise by reason of statutory or common law, by contract or otherwise.
15. INFORMATION AGENT. In Mellon's capacity as Information Agent, Mellon
shall:
(i) Assist in the coordination of all printing activities and
advertisement placement, if required, in connection with the
Offer.
(ii) Establish contacts with brokers, dealers, banks and other
nominees on Purchaser's behalf in accordance with Rule 13e-4
under the Securities Exchange Act of 1934, as amended.
(iii) Determine the material requirements necessary to fulfill
mailing requirements to all registered and "street" holders
and other interested parties.
(iv) Assist with document review in a timely manner, including, but
not limited to, the following documents: Offer to Purchase,
Letter of Transmittal (including Certification of Taxpayer
Identification Number on Substitute Form W-9), Notice of
Guaranteed Delivery and Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees and Letter to
Clients of Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees ("Offering Materials").
(v) Facilitate the distribution of materials to the registered and
beneficial owners of Purchaser's common stock and to other
interested parties.
(vi) Provide a dedicated toll-free line for all shareholder
inquiries from 9:00 a.m. to 6:00 p.m. ET each business day.
(vii) Provide status reporting to management upon commencement of
activity and continuing daily including total shares presented
and tendered.
(viii) Facilitate payment of all broker forwarding invoices, subject
to collection from Purchaser of monies for this purpose.
(ix) Build and maintain a current file of eligible participants,
including registered holders and beneficial holders identified
through Mellon's research.
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16. TAX REPORTING.
(a) On or before January 31st of the year following the year in which
the Purchaser accepts Shares for payment, Mellon shall prepare and mail to each
tendering stockholder whose Shares were accepted, other than stockholders who
demonstrate their status as nonresident aliens in accordance with United States
Treasury Regulations ("Foreign Stockholders"), a Form 1099-B reporting the
purchase of Shares as of the date such Shares are accepted for payment. Mellon
shall also prepare and file copies of such Forms 1099-B by magnetic tape with
the Internal Revenue Service in accordance with Treasury Regulations on or
before February 28th of the year following the year in which the Shares are
accepted for payment.
(b) Mellon shall deduct and withhold the appropriate backup withholding
tax from the purchase price payable with respect to Shares tendered by any
stockholder, other than a Foreign Stockholder, who has not properly provided
Mellon with a taxpayer identification number, in accordance with Treasury
Regulations. Mellon shall forward such withholding taxes to the Internal Revenue
Service with the appropriate required documentation customarily required to
discharge the Purchaser's applicable withholding obligation with respect to such
transactions.
(c) Should any issue arise regarding federal income tax reporting or
withholding, Mellon shall take such action as the Purchaser may reasonably
request in writing. Such action may be subject to additional fees.
17. AUTHORIZATIONS AND PROTECTIONS. As depositary hereunder Mellon:
(a) shall have no duties or obligations other than those specifically
set forth herein (including any exhibits hereto), or as may subsequently be
agreed to in writing by Mellon and the Purchaser;
(b) shall have no obligation to make payment for any tendered Shares
unless the Purchaser shall have provided the necessary federal or other
immediately available funds to pay in full amounts due and payable with respect
thereto;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of any
certificates or the Shares represented thereby deposited with Mellon or tendered
through an Agent's Message hereunder and will not be required to and will make
no representations as to or be responsible for the validity, sufficiency, value,
or genuineness of the Offer;
(d) shall not be obligated to take any legal action hereunder; if,
however, Mellon determines to take any legal action hereunder, and, where the
taking of such action might in Mellon's judgment subject or expose it to any
expense or liability, Mellon shall not be required to act unless it shall have
been furnished with an indemnity reasonably satisfactory to it;
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(e) may rely on and shall be authorized and protected in acting or
failing to act upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission, Agent's Message or other document or
security delivered to Mellon and reasonably believed by Mellon to be genuine and
to have been signed by the proper party or parties;
(f) may rely on and shall be authorized and protected in acting or
failing to act upon the written, telephonic, electronic and oral instructions,
with respect to any matter relating to Mellon's actions as depositary
specifically covered by this Agreement (or supplementing or qualifying any such
actions) of officers of the Purchaser;
(g) may consult counsel satisfactory to it, and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered, or omitted by Mellon hereunder in good faith and in
accordance with the advice of such counsel;
(h) shall not be called upon at any time to, and shall not, advise any
person tendering or considering tendering pursuant to the Offer as to the wisdom
of making such tender or as to the market value of any security tendered
thereunder or as to any other financial or legal aspect of the Offer or any
transactions related thereto;
(i) may perform any of its duties hereunder either directly or by or
through agents or attorneys;
(j) shall not be liable or responsible for any recital or statement
contained in the Offer or any other documents relating thereto;
(k) shall not be liable or responsible for any failure of the Purchaser
to comply with any of their respective obligations relating to the Offer,
including without limitation obligations under applicable securities laws;
(l) is not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person, including without limitation
the Dealer-Manager; and
(m) shall not be liable or responsible for any delay, failure,
malfunction, interruption or error in the transmission or receipt of
communications or messages through electronic means to or from a Book-Entry
Transfer Facility, or for the actions of any other person in connection with any
such message or communication.
18. INDEMNIFICATION. The Purchaser agrees to indemnify Mellon for, and hold
it harmless from and against, any loss, liability, claim or expense ("Loss")
arising out of or in connection with its duties under this Agreement or this
appointment, including the costs and expenses of defending itself against any
Loss or enforcing this Agreement, except to the extent that such Loss shall have
been determined by a court of competent jurisdiction to be a result of Mellon's
gross negligence or intentional misconduct.
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19. LIMITATION OF LIABILITY.
(a) In the absence of gross negligence or intentional misconduct on its
or its agent's or attorney's part, Mellon shall not be liable for any action
taken, suffered, or omitted by it or its agents or attorneys or for any error of
judgment made by it or its agents or attorneys in the performance of its or its
agent's or attorney's duties under this Agreement. Anything in this agreement to
the contrary notwithstanding, in no event shall Mellon be liable for special,
indirect, incidental or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if Mellon has been advised of
the likelihood of such damages and regardless of the form of action. Any
liability of Mellon will be limited to the amount of fees paid by Purchaser
hereunder.
(b) In the event any question or dispute arises with respect to the
proper interpretation of this Agreement or Mellon's duties hereunder or the
rights of the Purchaser or of any stockholders surrendering certificates for
Shares pursuant to the Offer, Mellon shall not be required to act and shall not
be held liable or responsible for refusing to act until the question or dispute
has been judicially settled (and Mellon may, if it deems it advisable, but shall
not be obligated to, file a suit in interpleader or for a declaratory judgment
for such purpose) by final judgment rendered by a court of competent
jurisdiction, binding on all stockholders and parties interested in the matter,
which is no longer subject to review or appeal, or settled by a written document
in form and substance satisfactory to Mellon and executed by the Purchaser and
each such stockholder and party. In addition, Mellon may require for such
purpose, but shall not be obligated to require, the execution of such written
settlement by all the stockholders and all other parties that may have an
interest in the settlement.
20. REPRESENTATIONS, WARRANTIES AND COVENANTS. Purchaser represents,
warrants and covenants that (a) it is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation, (b) the
making and consummation of the Offer and the execution, delivery and performance
of all transactions contemplated thereby (including without limitation this
Agreement) have been duly authorized by all necessary corporate action and will
not result in a breach of or constitute a default under the charter or bylaws of
the Purchaser or any indenture, agreement or instrument to which it is a party
or is bound, (c) this Agreement has been duly executed and delivered by the
Purchaser and constitutes the legal, valid, binding and enforceable obligation
of Purchaser, (d) the Offer will comply in all material respects with all
applicable requirements of law and (e) to the best of its knowledge, there is no
material litigation pending or threatened as of the date hereof in connection
with the Offer.
21. NOTICES. All notices, demands and other communications given pursuant
to the terms and provisions hereof shall be in writing, shall be deemed
effective on the date of receipt, and may be sent by facsimile, overnight
delivery services, or by certified or registered mail, return receipt requested
to:
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If to Purchaser : with an additional copy to:
Delaware Investments Dividend and ▇▇▇▇▇▇▇▇ ▇. Maestro, Esquire
Income Fund, Inc. General Counsel
One Commerce Square Delaware Management Company
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ One Commerce Square
Attn: ▇.▇. ▇▇▇▇▇▇▇▇▇▇, Esq. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇.▇▇▇.▇▇▇▇ Tel: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇ Fax: 215.255. 1640
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
If to Mellon: with an additional copy to:
Mellon Investor Services LLC Mellon Investor Services LLC
Overpeck Centre Overpeck ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Relationship Administrator Attn: Legal Department
Tel: Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: Fax: ▇▇▇-▇▇▇-▇▇▇▇
22. SPECIMEN SIGNATURES. Set forth in Exhibit E hereto is a list of the
names and specimen signatures of the persons authorized to act for the Purchaser
under this Agreement. The Secretary or any Assistant Secretary of the Purchaser
shall, from time to time, certify to Mellon the names and signatures of any
other persons authorized to act for the Purchaser under this Agreement.
23. FEES. Whether or not any Shares are tendered or the Offer is
consummated, for Mellon's services as depositary hereunder Purchaser shall pay
to Mellon compensation in accordance with the fee schedule attached as Exhibit F
hereto, together with reimbursement for reasonable out-of-pocket expenses. All
amounts owed to Mellon hereunder are due upon receipt of the invoice. Delinquent
payments are subject to a late payment charge of one and one half percent
commencing forty-five days from the invoice date.
24. TERMINATION. Either party may terminate this Agreement upon 30 days
prior written notice to the other party. Unless so terminated, this Agreement
shall continue in effect until all Shares have been received and paid for. In
the event of such termination, the Purchaser will appoint a successor depositary
and inform Mellon of the name and address of any successor depositary so
appointed, provided that no failure by the Purchaser to appoint such a successor
depositary shall affect the termination of this Agreement or the discharge of
Mellon as depositary hereunder. Upon any such termination, Mellon shall be
relieved and discharged of any further responsibilities with respect to its
duties hereunder. Upon payment of all outstanding fees and expenses hereunder,
Mellon shall promptly forward to the Purchaser or its designee any certificate
for Shares, Letter of Transmittal or other document that Mellon may hold or
receive.
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25. FORCE MAJEURE. Mellon shall not be liable for any failure or delay
arising out of conditions beyond its reasonable control including, but not
limited to, work stoppages, fires, civil disobedience, riots, rebellions,
storms, electrical, mechanical, computer or communications facilities failures,
acts of God or similar occurrences.
25A. DISASTER RECOVERY. During the term of this Agreement, Mellon shall
maintain commercially reasonable disaster recovery facilities and procedures.
26. MISCELLANEOUS.
a) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to conflict of laws
rules or principles.
b) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
c) In the event that any claim of inconsistency between this Agreement
and the terms of the Offer arise, as they may from time to time be amended, the
terms of the Offer shall control, except with respect to Mellon's duties,
liabilities and rights, including without limitation compensation and
indemnification, which shall be controlled by the terms of this Agreement.
d) If any provision of this Agreement shall be held illegal, invalid,
or unenforceable by any court, this Agreement shall be construed and enforced as
if such provision had not been contained herein and shall be deemed an Agreement
among the parties hereto to the full extent permitted by applicable law.
e) This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by, the respective successors and assigns of the parties hereto.
f) This Agreement may not be assigned by any party without the prior
written consent of all parties.
g) Sections 17, 18, 19, and 23 hereof shall survive termination of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized officers as of the day and year above written.
DELAWARE INVESTMENTS DIVIDEND
AND INCOME FUND, INC.
By: __________________________________
Name:
Title:
MELLON INVESTOR SERVICES LLC
By: __________________________________
Name:
Title:
Exhibit A Offer to Purchase
Exhibit B Letter of Transmittal
Exhibit C Notice of Guaranteed Delivery
Exhibit D List of Affiliates
Exhibit E List of Authorized Representatives
Exhibit F Schedule of Fees
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EXHIBIT A
OFFER TO PURCHASE
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EXHIBIT B
LETTER OF TRANSMITTAL
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EXHIBIT C
NOTICE OF GUARANTEED DELIVERY
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EXHIBIT D
LIST OF AFFILIATES
Shareholder Certificate Numbers of Shares
----------- -----------------------------
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EXHIBIT E
LIST OF AUTHORIZED REPRESENTATIVES
Name Title Specimen Signature
---- ----- ------------------
__________________ ____________________ __________________
__________________ ____________________ __________________
__________________ ____________________ __________________
__________________ ____________________ __________________
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EXHIBIT F
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