SC TO-I/A 1 schedto1a-2.txt SCHEDTO I/A NO. 2 As filed with the Securities and Exchange Commission on January 27, 2005 ------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE TO Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934 (Amendment No. 2) Evergreen Utilities and High Income Fund (Name of Subject Company (Issuer)) Evergreen Utilities and High Income Fund (Name of Filing Persons (Offeror and Issuer)) Common Shares, No Par Value (Title of Class of Securities) 30034Q 10 9 (CUSIP Number of Class of Securities) Michael H. Koonce, Esquire 200 Berkeley Street Boston, Massachusetts 02116-5034 (617) 210-3663 (Name, address, and telephone number of person authorized to receive notices and communications on behalf of filing persons) With a copy to: David C. Mahaffey, Esquire Sullivan & Worcester LLP 1666 K Street, N.W. Washington, D.C. 20006 Calculation of Filing Fee -------------------------------------------- ----------------------------------- Transaction Valuation Amount of Filing Fee -------------------------------------------- ----------------------------------- -------------------------------------------- ----------------------------------- $12,914,362(a) $1,520.02(b) -------------------------------------------- ----------------------------------- (a) Calculated as the aggregate maximum purchase price to be paid for 575,250 shares in the offer, based upon the net asset value per share of $22.45 at December 14, 2004. (b) Calculated as the Transaction Valuation multiplied by .00011770. /X/ Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $1,520.02 Form or Registration No.: Schedule TO Filing Party: Evergreen Utilities and High Income Fund Date Filed: December 20, 2004 / / Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: / / third-party tender offer subject to Rule 14d-1. /x/ issuer tender offer subject to Rule 13e-4. / / going-private transaction subject to Rule 13e-3. / / amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: /x/ Introductory Statement This Amendment No. 2 to the Issuer Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on December 20, 2004 by Evergreen Utilities and High Income Fund, a statutory trust organized under the laws of the state of Delaware (the "Fund"), relating to an offer to purchase for cash (the "Offer") up to 5% or 575,250 of the Fund's issued and outstanding common shares, no par value (the "Shares"), amends such Issuer Tender Offer Statement on Schedule TO to add an additional exhibit in accordance with Rule 13e-4(c)(1) promulgated under the Securities Exchange Act of 1934, as amended, and to add the following information in accordance with Rule 13e-4(c)(4) of the Securities Exchange Act of 1934, as amended, and General Instruction H of Schedule TO: The Offer expired at 5:00 p.m. EST on January 24, 2005. Pursuant to the Offer, 3,799,973 Shares were properly tendered and not withdrawn, and 575,250 of the tendered Shares were accepted by the Fund on January 27, 2005 for purchase at the price of $22.08 per share, which is equal to the net asset value per share determined as of the close of the regular trading session of the New York Stock Exchange on January 25, 2005. Payment for the Shares purchased was made on January 27, 2005. The aggregate purchase price paid by the Fund for the Shares purchased pursuant to the Offer was $12,701,520. Reference is hereby made to the press release issued on January 24, 2005, a copy of which was previously filed with the Securities and Exchange Commission in Amendment No. 1 to the Issuer Tender Offer Statement on Schedule TO on January 25, 2005 and is incorporated herein by reference and to the press release issued on January 27, 2005 a copy of which is attached hereto as Exhibit (a)(5)(v) and is incorporated herein by reference. Item 12. Exhibits. The following material is hereby filed as an additional exhibit to the Fund's Schedule TO: (a)(5)(v) Press release issued on January 27, 2005. SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. EVERGREEN UTILITIES AND HIGH INCOME FUND /s/ Michael H. Koonce Name: Michael H. Koonce Title: Secretary Dated: January 27, 2005 EXHIBIT INDEX Exhibit (a)(5)(v) Press release issued on January 27, 2005.