As filed with the Securities and Exchange Commission on March 22, 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. )*
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:
Timothy W. Diggins
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
Telephone: (617) 951-7000
Calculation of Filing Fee
Transaction Valuation |
Amount of Filing Fee |
$12,448,974(a) |
$1,465.24(b) |
(a) Calculated as the aggregate maximum purchase price to be paid for 546,487 shares in the offer, based upon the net asset value per share of $22.78 at March 16, 2005.
(b) Calculated as the Transaction Valuation multiplied by .00011770.
|_| 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:
Form or Registration No.:
Filing Party:
Date Filed:
|_| 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: |_|
Introductory Statement
This Tender Offer Statement on Schedule TO (Schedule TO) relates to an offer by Evergreen Utilities and High Income Fund, a statutory trust organized under the laws of the state of Delaware (the Fund), to purchase for cash up to 5% or 546,487 of the Fund's issued and outstanding common shares, no par value, upon the terms and subject to the conditions contained in the Offer to Purchase dated March 22, 2005 and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the Offer) and are filed as exhibits to this Schedule TO.
Items 1 through 11.
The information in the Offer to Purchase and the related Letter of Transmittal is incorporated herein by reference in answer to Items 1-11 required to be disclosed in this Schedule TO.
Item 12. Exhibits.
(a)(1)(i) |
Offer to Purchase. |
(a)(1)(ii) |
Form of Letter of Transmittal. |
(a)(1)(iii) |
Form of Notice of Guaranteed Delivery. |
(a)(1)(iv) |
Notice of Offer to Purchase. |
(a)(1)(v) |
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
(a)(1)(vi) |
Form of Letter to Clients of Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees including Instructions Regarding the Offer. |
(a)(1)(vii) |
Form of Letter to Shareholders. |
(a)(1)(viii) |
Substitute Form W-9. |
(a)(2) |
None. |
(a)(3) |
Not Applicable. |
(a)(4) |
Not applicable. |
(a)(5)(i) |
Press release issued on February 23, 2005 (Previously filed as a preliminary communication with the Fund's Schedule TO submitted via EDGAR on February 23, 2005). |
(a)(5)(ii) |
Press release issued on March 17, 2005 (Previously filed as a preliminary communication with the Fund's Schedule TO submitted via EDGAR on March 17, 2005). |
(a)(5)(iii) |
Audited Financial Statements of the Fund for the fiscal year ended August 31, 2004. Incorporated herein by reference to the Funds Annual Report for the fiscal year ended August 31, 2004 on Form N-CSR as filed with the Securities and Exchange Commission (SEC) on November 9, 2004. The Funds Annual Report was previously provided to Shareholders. The Report is available on the EDGAR Database on the SECs Web site at http://www.sec.gov. You may also request a copy the Funds Annual Report at no charge by calling 1-800-343-2898 between 8:30 a.m. and 5:30 p.m., Eastern time, on any business day. |
(b) |
None. |
(d) |
Form of Depositary Agreement between the Fund and EquiServe, Inc. and EquiServe Trust Company, N.A. |
(g) |
Evergreen Liquidity Plan: Tender Offer Q&A. |
(h) |
Opinion of Ropes & Gray LLP relating to the tax consequences of the tender |
offer.
Item 13. Information Required by Schedule 13E-3.
Not applicable.
NOTICE
A copy of the Ceritificate of Trust of Evergreen Utilities and High Income Fund (the Trust), together with all amendments thereto, is on file with the Secretary of State of The State of Delaware and notice is hereby given that this instrument is executed on behalf of the Trust by trustees and officers of the Trust as officers and trustees and not individually and that the obligations of or arising out of this instrument are not binding upon any of the officers or trustees of the Trust or shareholders individually but are binding only upon the assets and property of the Trust or the relevant series.
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: March 22, 2005
EXHIBIT INDEX
Exhibit
(a)(1)(i) |
Offer to Purchase. |
(a)(1)(ii) |
Form of Letter of Transmittal. |
(a)(1)(iii) |
Form of Notice of Guaranteed Delivery. |
(a)(1)(iv) |
Notice of Offer to Purchase. |
(a)(1)(v) |
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
(a)(1)(vi) |
Form of Letter to Clients of Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees including Instructions Regarding the Offer. |
(a)(1)(vii) |
Form of Letter to Shareholders. |
(a)(1)(viii) |
Substitute Form W-9. |
(d) |
Form of Depositary Agreement between the Fund and EquiServe, Inc. and EquiServe Trust Company, N.A. |
(g) |
Evergreen Liquidity Plan: Tender Offer Q&A. |
(h) |
Opinion of Ropes & Gray LLP relating to tax consequences of the tender offer. |
EVERGREEN UTILITIES AND HIGH INCOME FUND OFFER TO PURCHASE FOR CASH 546,487 OF ITS ISSUED |
THE OFFER WILL EXPIRE AT 5:00 P.M. EASTERN TIME ON APRIL 20, 2005, UNLESS THE OFFER IS EXTENDED. |
To the Shareholders of Evergreen Utilities and High Income Fund: Evergreen Utilities and High Income Fund, a non-diversified, closed-end management investment company organized as a statutory trust under the laws of the State of Delaware (the Fund), is offering to purchase up to 5%, or 546,487 in the aggregate, of its issued and outstanding common shares, no par value (the Shares), to fulfill an undertaking made in connection with the initial public offering of the Shares. See Section 2. The offer is for cash at a price equal to the net asset value (NAV) per Share determined as of the close of the regular trading session of the New York Stock Exchange (the NYSE), on the day after the date the offer expires, and is upon the terms and subject to the conditions set forth in this Offer to Purchase and the related Letter of Transmittal (together with any amendments or supplements thereto, the Offer). The Offer will expire at 5:00 p.m. Eastern Time on April 20, 2005, unless extended. The Shares are traded on the American Stock Exchange (the AMEX) under the symbol ERH. The NAV as of the close of the regular trading session of the NYSE on March 16, 2005 was $22.78 per Share. During the pendency of the Offer, current NAV quotations can be obtained from various public websites that report prices of mutual funds and stocks. The symbol for obtaining NAV quotations is XERHX. You may also call EquiServe Trust Company, N.A. (the Depositary) at 1-888-396-7866 between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time, Monday through Friday (except holidays). THIS OFFER IS SUBJECT TO CERTAIN CONDITIONS. SEE SECTION 3. IMPORTANT INFORMATION Shareholders who desire to tender their Shares should either: (1) properly complete and sign the enclosed Letter of Transmittal, provide thereon the original of any required signature guarantee(s) and mail or deliver it together with the tendered Shares (in proper certificated or uncertificated form), and any other documents required by the Letter of Transmittal to the address set forth on the back of this Offer; or (2) request their broker, dealer, commercial bank, trust company or other nominee to effect the transaction on their behalf. Shareholders who desire to tender Shares registered in the name of such a firm must contact that firm to effect a tender on their behalf. Tendering Shareholders will not be obligated to pay brokerage commissions in connection with their tender of Shares, but they may be charged a fee by a firm for processing the tender(s). The Fund reserves the absolute right to reject tenders determined not to be in appropriate form. If you do not wish to tender your Shares, you need not take any action. NEITHER THE FUND NOR ITS BOARD OF TRUSTEES NOR EVERGREEN INVESTMENT MANAGEMENT COMPANY, LLC (THE ADVISOR) MAKES ANY RECOMMENDATION TO ANY SHAREHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES. NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION ON BEHALF OF THE FUND, ITS BOARD OF TRUSTEES OR THE ADVISOR AS TO WHETHER SHAREHOLDERS SHOULD TENDER OR REFRAIN FROM TENDERING SHARES PURSUANT TO THE OFFER OR TO MAKE ANY REPRESENTATION OR TO GIVE ANY INFORMATION IN CONNECTION WITH THE OFFER OTHER THAN AS CONTAINED HEREIN OR IN THE LETTER OF TRANSMITTAL. IF MADE OR GIVEN, ANY SUCH RECOMMENDATION, REPRESENTATION OR INFORMATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE FUND, ITS BOARD OF TRUSTEES OR THE ADVISOR. SHAREHOLDERS ARE URGED TO EVALUATE CAREFULLY ALL INFORMATION IN THE OFFER, CONSULT THEIR OWN INVESTMENT AND TAX ADVISORS AND MAKE THEIR OWN DECISIONS WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES. |
[This page left intentionally blank] |
(Section references are to sections of this Offer to Purchase.) This Summary Term Sheet highlights certain information concerning this tender offer. To understand the Offer fully and for a more complete discussion of the terms and conditions of the Offer, you should read carefully the entire Offer to Purchase and the related Letter of Transmittal. What is the tender offer? |
Evergreen Utilities and High Income Fund (the Fund) is offering to purchase 5%, or 546,487
in the aggregate, of its common shares for cash at a price per share equal to the per share net asset
value as of the close of the regular trading session of the New York Stock Exchange (NYSE)
on April 21, 2005 (or, if the Offer is extended, on the date after the date to which the Offer is
extended) upon specified terms and subject to conditions as set forth in the tender offer documents. |
Why is the Fund making this tender offer? |
The Fund is making this tender offer pursuant to the Evergreen Enhanced Liquidity Plan, as described
in the Funds Prospectus dated April 27, 2004 (the Prospectus). In the Prospectus,
the Board of Trustees committed to make tender offers for the Funds common shares under certain
circumstances and subject to certain conditions. Beginning six to eight months after the Funds
commencement of operations (for a total of eight consecutive calendar quarters), in the event that
the Funds common shares trade at a discount to net asset value of greater than 5% for fifteen
of twenty days during a predetermined measurement period, the Fund, under normal circumstances, will
make offers to purchase up to 5% of its outstanding common shares at their net asset value from all
beneficial shareholders. The predetermined measurement period commenced on February 1, 2005 and ended
on March 1, 2005. As of the close of business on February 22, 2005, the Fund had traded at a discount
of greater than 5 percent for at least 15 days during the measurement period. |
When will the tender offer expire, and may the offer be extended? |
The tender offer will expire at 5:00 p.m. Eastern Time on April 20, 2005, unless extended. The Fund
may extend the period of time the offer will be open by issuing a press release or making some other
public announcement by no later than the next business day after the Offer otherwise would have expired.
See Section 15 for more information. |
What is the net asset value per Fund share and the closing sale price on the American Stock Exchange per Fund share as of a recent date? |
As of March 16, 2005, the net asset value per share was $22.78 and the closing sale price per share
was $20.28. See Section 8 for details. During the pendency of the Offer, current net asset value
quotations can be obtained from either: (1) various public websites that report prices of mutual
funds and stocks, under the symbol XERHX or (2) EquiServe Trust Company, N.A. by calling
(888) 396-7866 between 9:00 a.m. and 5:00 p.m. Eastern Time, Monday through Friday (except holidays).
You can find the current market price per share, as quoted on the AMEX, under the symbol ERH. |
Will the net asset value be higher or lower on the date that the price to be paid for tendered shares is to be determined? No one can accurately predict the net asset value at a future date. What happens if I tender my shares and the net asset value on the date of determination of the tender price is lower than the then current market price per share on the AMEX? |
You would receive less money for your shares than if you had sold them on the AMEX. |
i |
How do I tender my shares? |
If your shares are registered in your name, you should obtain the tender offer materials, including
the Offer to Purchase and the related Letter of Transmittal, read them, and if you decide to tender,
complete a Letter of Transmittal and submit any other documents required by the Letter of Transmittal
to the address set forth on the Letter of Transmittal. These materials must be received by EquiServe
Trust Company, N.A., the Depositary, in proper form before 5:00 p.m. Eastern Time on April 20, 2005
(unless the tender offer is extended by the Fund, in which case the new deadline will be as stated
in the public announcement of the extension). | |
If your shares are held by a broker, dealer, commercial bank, trust company or other nominee (i.e.,
in street name), you should contact that firm to obtain the package of information necessary
to make your decision, and you can only tender your shares by directing that firm to complete, compile
and deliver the necessary documents for submission to the Depositary by April 20, 2005 (or if the
offer is extended, the expiration date as extended). See Section 4 for more information. |
Is there any cost to me to tender? |
The Fund will not charge a fee to process a tender. However, your broker, dealer, commercial bank,
trust company or other nominee may charge you fees according to its individual policies. See the
Letter of Transmittal for details. | |
May I withdraw my shares after I have tendered them and, if so, by when? | |
Yes, you may withdraw your shares at any time prior to 5:00 p.m. Eastern Time on April 20, 2005 (or if the Offer is extended, at any time prior to 5:00 p.m. Eastern Time on the new expiration date). Withdrawn shares may be re-tendered by following the tender procedures before the Offer expires (including any extension period). In addition, if shares tendered have not by then been accepted for payment, you may withdraw your tendered shares at any time after May 13, 2005. See Section 5 for more information. |
How do I withdraw tendered shares? |
A notice of withdrawal of tendered shares must be timely received by EquiServe Trust Company, N.A.,
specifying the name of the shareholder who tendered the shares, the number of shares being withdrawn
(which must be all of the shares tendered), and with respect to share certificates which represent
tendered shares that have been delivered or otherwise identified to EquiServe Trust Company, N.A.,
the name of the registered owner of such shares, if different than the person who tendered the shares.
See Section 5 for more information. |
May I place any conditions on my tender of shares? No. Is there a limit on the number of shares I may tender? |
There is no limit on the number of shares that you may tender. However, if you own fewer than 100 shares
in total, you must tender all of your shares if you choose to participate in the Offer. If you hold
100 or more shares, your tender will be proper only if you tender at least 20% of the Fund shares
you own or which you are considered to own under specified federal tax rules. See Sections 1 and 14. |
What if more than 546,487 shares are tendered (and not timely withdrawn)? |
The Fund will purchase duly tendered shares from tendering shareholders pursuant to the terms and conditions
of the tender offer on a pro rata basis in accordance with the number of shares tendered by each
shareholder (and not timely withdrawn), unless the Fund determines not to purchase any shares. If
a shareholder owns and tenders fewer than 100 shares, the Fund will purchase all shares tendered
by such shareholder, unless the Fund determines not to purchase any shares. The Funds present
intention, if the tender offer is oversubscribed, is not to purchase more than 546,487 shares. See
Section 1 for more details. |
ii |
If I decide not to tender, how will the tender offer affect the Fund shares I hold? |
Your percentage ownership interest in the Fund will increase after completion of the tender offer.
See Section 11. |
Does the Fund have the financial resources to make payment? |
Yes. Although permitted to do so, the Fund does not expect to borrow money to finance the purchase
of any tendered shares. |
If shares I tender are accepted by the Fund, when will payment be made? |
It is contemplated, subject to change, that payment for tendered shares, if accepted, will be made
on or about April 25, 2005. See Section 6. |
Is my sale of shares in the tender offer a taxable transaction? |
It is anticipated that U.S. shareholders (other than those who are tax-exempt) who sell shares in the
tender offer will generally recognize gain or loss for U.S. federal income tax purposes equal to
the difference between the cash they receive for the shares sold and their adjusted basis in the
shares. The sale date for tax purposes will be the date the Fund accepts shares for purchase. See
Section 14 for details, including the nature of the income or loss and the differing rules for U.S.
and non-U.S. shareholders. Because the Fund has been in operation for less than a year, any capital
gains or losses recognized by a shareholder would be short-term capital gains or losses. Please consult
your tax advisor for a more complete discussion of your potential tax consequences. |
Is the Fund required to complete the tender offer and purchase all shares tendered up to the number of shares tendered for? |
Under most circumstances, yes. There are certain circumstances, however, in which the Fund will not
be required to purchase any shares tendered as described in Section 3. |
Is there any reason shares tendered would not be accepted? |
In addition to those circumstances described in Section 3 under which the Fund is not required to accept
tendered shares, the Fund has reserved the right to reject any and all tenders determined by it not
to be in appropriate form. The Fund will reject tenders from any shareholder if it determines that
less than 20% of the shares actually and constructively (as determined under the Internal Revenue
Code) owned by the tendering shareholder are tendered or if the tender does not include original
signature(s) or the original of any required signature guarantee(s). |
How will tendered shares be accepted for payment? |
For purposes of the Offer, the Fund will be deemed to have accepted for payment Shares that are tendered
and not withdrawn when it gives oral or written notice to the EquiServe Trust Company, N.A. of its
acceptance of such Shares for payment pursuant to the Offer. EquiServe Trust Company is thereafter
to make such payment as directed by the Fund with funds to be deposited with it by the Fund. See
Section 6. |
What action need I take if I decide not to tender my shares? None. Does management encourage shareholders to participate in the tender offer, and will they participate in the tender offer? |
No. Neither the Fund, its Board of Trustees nor the Funds investment adviser is making any recommendation
to tender or not to tender shares in the tender offer. No trustee or officer of the Fund intends
to tender shares. See Section 10. |
iii |
Will there be additional opportunities to tender shares to the Fund? |
The Board of Trustees of the Fund (the Board) has committed to potentially making a tender
offer in each of the Funds next six quarters (for a total of eight consecutive quarters) under
certain circumstances and subject to certain conditions. In the event that the common shares of the
Fund trade at a discount to net asset value of greater than 5% for fifteen of twenty days during
a predetermined measurement period in any such quarter, the Fund, under normal circumstances, will
make offers to purchase up to 5% of its outstanding common shares at their net asset value from all
beneficial shareholders. The Fund will not undertake a tender offer if the Funds common shares
are not trading at a discount to net asset value of greater than 5% for the requisite number of days.
Under certain circumstances, the Board may, however, decide that the Fund should not make a tender
offer even if such shares are trading at such discount for the required number of days. See Section 2. |
How do I obtain information? |
Questions and requests for assistance should be directed to EquiServe Trust Company, N.A., the Depositary
for the tender offer, toll free at (888) 396-7866. Requests for additional copies of the Offer to
Purchase, the Letter of Transmittal and all other tender offer documents should be directed to EquiServe
Trust Company, N.A., the Distribution Agent for the tender offer, at (732) 417-2653. If you do not
own shares directly, you should obtain this information and the documents from your broker, dealer,
commercial bank, trust company or other nominee, as applicable. |
iv |
1 |
2 |
3 |
4 |
5 |
states that (1) DTC has received an express acknowledgment from the DTC participant tendering the Shares that are the subject of the Book-Entry Confirmation, (2) the DTC participant has received and agrees to be bound by the terms of the Letter of Transmittal, and (3) the Fund may enforce such agreement against the DTC participant. Delivery of documents to DTC in accordance with DTCs procedures does not constitute delivery to the Depositary. Notwithstanding the foregoing, if a Shareholder desires to tender Shares pursuant to the Offer and the certificates for the Shares to be tendered are not immediately available, or time will not permit the Letter of Transmittal and all documents required by the Letter of Transmittal to reach the Depositary prior to 5:00 p.m. Eastern Time on the Expiration Date, or a Shareholder cannot complete the procedures for delivery by book-entry transfer on a timely basis, then such Shareholders Shares may nevertheless be tendered, provided that all of the following conditions are satisfied: |
(1) | the tender is made by or through an Eligible Institution; and |
|
(2) | a properly completed and duly executed Notice of Guaranteed Delivery in the form provided by the Fund is received by the Depositary prior to 5:00 pm Eastern Time on the Expiration Date; and |
|
(3) | the certificates for all such tendered Shares, in proper form for transfer, or a Book-Entry Confirmation with respect to such Shares, as the case may be, together with a Letter of Transmittal properly completed and bearing original signature(s) and the original of any required signature guarantee(s) (or, in the case of a book-entry transfer, an Agents Message), and any documents required by the Letter of Transmittal, are received by the Depositary prior to 5:00 P.M. Eastern Time on the second AMEX trading day after the date of execution of the Notice of Guaranteed Delivery. |
6 |
7 |
8 |
Net Asset Value
|
Market Price
|
Dividends/ Distributions |
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
High | Low | High | Low | ||||||||||||
Fiscal Year (ending August 31, 2004) | |||||||||||||||
1st Quarter | N/A | * | N/A | * | N/A | * | N/A | * | N/A | * | |||||
2nd Quarter | N/A | * | N/A | * | N/A | * | N/A | * | N/A | * | |||||
3rd Quarter | $ | 18.95 | $ | 18.25 | $ | 20.01 | $ | 20.00 | $ | | |||||
4th Quarter | $ | 19.76 | $ | 18.76 | $ | 19.76 | $ | 17.00 | $ | 0.3000 | |||||
Fiscal Year (ending August 31, 2005) | |||||||||||||||
1st Quarter | $ | 22.31 | $ | 19.81 | $ | 19.81 | $ | 18.01 | $ | 0.3000 | |||||
2nd Quarter | $ | 23.54 | $ | 22.02 | $ | 20.89 | $ | 19.78 | $ | 0.6600 |
|
*The Fund commenced operations on April 30, 2004.
As of the close of business on March 16, 2005, the Funds NAV was $22.78 per Share, and the high, low and closing prices per Share on the AMEX on that date were $20.45, $20.27 and $20.28, respectively. During the time the Offer is pending, current NAV quotations can be obtained by contacting the Depositary in the manner indicated in Section 1. The tendering of Shares, unless and until Shares tendered are accepted for payment and purchase, will not affect the record ownership of any such tendered Shares for purposes of entitlement to any dividends payable by the Fund. |
9 |
Year Ended August 31, 2004 (Audited) |
|||
---|---|---|---|
STATEMENT OF ASSETS AND LIABILITIES | |||
(AT END OF PERIOD) | |||
Total assets | $ | 348,443,690 | |
Total liabilities | $ | 41,060,232 | |
Preferred shares at redemption value | $ | 80,055,663 | |
Net assets | $ | 227,327,795 | |
Net asset value per Share | $ | 19.76 | |
Shares outstanding | 11,505,000 | ||
STATEMENT OF OPERATIONS | |||
Investment income | $ | 9,907,003 | |
Net expenses | $ | (968,720 | ) |
Net investment income | $ | 8,938,283 | |
Net gain (loss) on investment transactions | $ | 3,776,166 | |
Dividends to preferred shareholders | $ | 237,018 | |
Net increase (decrease) in net assets from operations (a) | $ | 12,477,431 | |
10 |
SELECTED DATA FOR A SHARE OF COMMON STOCK
OUTSTANDING THROUGHOUT EACH PERIOD (a) |
Income From Investment Operations | |||
Net investment income | $ | 0.77 | |
Net realized and unrealized gain (loss) on investment transactions | 0.32 | ||
Net increase (decrease) in net asset value from operations | 1.09 | ||
Dividends and Distributions | |||
Dividends from net investment income | (0.30 | ) | |
Total dividends and distributions | (0.30 | ) | |
Offering costs charged to capital | (0.13 | ) | |
Net asset value, end of period | $ | 19.76 | |
Market value, end of period | $ | 18.29 | |
RATIOS | |||
Expenses to average net assets (c) | 1.31 | %(e) | |
Expenses to average net assets excluding interest expense (d) | 1.02 | %(e) | |
Net investment income to average net assets | 12.05 | %(e) | |
TOTAL INVESTMENT RETURN | |||
Total investment return based on: | |||
Market value (b) | (7.05 | %) |
| |
(a) | For the period from April 30, 2004 (commencement of operations), to August 31, 2004. |
(b) | Total return is calculated assuming a purchase of common stock on the first day and a sale of common
stock on the last day of the period reported. Dividends and distributions are assumed for the purposes
of these calculations to be reinvested at prices obtained under the Funds Automatic Dividend
Reinvestment Plan. Total return does not reflect brokerage commissions or sales charges. |
(c) | The ratio of expenses to average net assets excludes expense reductions. |
(d) | The ratio of expenses to average net assets excludes interest expense and expense reductions. |
(e) | Annualized |
11 |
Name and Position
|
Number of Shares Beneficially Owned |
Percentage of Shares Beneficially Owned |
|||||
---|---|---|---|---|---|---|---|
Gerald M. McDonnell, Trustee | 100 | 0.001% | |||||
Richard J. Shima, Trustee | 800 | 0.007% | |||||
David M. Richardson, Trustee | 2,040 | 0.019% | |||||
Richard K. Wagoner, Trustee | 100 | 0.001% |
12 |
13 |
14 |
control all substantial decisions of the trust. The term Non-U.S. Shareholder refers to a Shareholder who is not a U.S. Shareholder. Based on the foregoing and subject to the limitations stated, it is the opinion of Ropes & Gray LLP that the following discussion of federal income tax consequences of selling Shares to the Fund pursuant to the Offer is materially accurate. U.S. Shareholders. A U.S. Shareholder who tenders at least 20% of the Shares owned by such Shareholder (or attributed to the Shareholder under Section 318 of the Code) should realize capital gain or loss on sale of the Shares tendered so long as (A) the Shareholder holds such Shares as capital assets and (B) the Shareholders percentage ownership of the Fund (determined after applying the ownership attribution rules under Section 318 of the Code) is less than 5% after the tender and is reduced as a result of the tender. Such gain or loss will equal the difference between the price paid by the Fund for the Shares sold by the Shareholder pursuant to the Offer and the Shareholders adjusted tax basis in such Shares. The sale date of such Shares for tax purposes should be the date the Fund accepts Shares for purchase. The gain or loss will be treated as either long-term, if the Shares have been held at that time for more than one year, or short-term if the Shares have been held for one year or less. Any such long-term capital gain realized by a non-corporate U.S. Shareholder will be taxed at a maximum federal income tax rate of 15%. This discussion does not address the tax treatment of a tendering Shareholder whose percentage ownership of the Fund (determined after applying the ownership attribution rules under Section 318 of the Code) immediately after the tender is 5% or more. Those Shareholders should consult their own tax advisors on the specific tax consequences to them of participating or not participating in the Offer. In the unlikely event that a tendering Shareholders proportionate ownership of the Fund (determined after applying the ownership attribution rules under Section 318 of the Code) is not reduced as a result of the tender, such Shareholder would be deemed to receive a distribution from the Fund with respect to the Shares held (or deemed held under Section 318 of the Code) by the Shareholder after the tender. The amount of this distribution would equal the price paid by the Fund to such Shareholder for the Shares sold. The distribution would be taxable as a dividend, i.e., as ordinary income, to the extent of the Funds current or accumulated earnings and profits allocable to such distribution. The adjusted basis of the Shares held (or deemed held under Section 318 of the Code) by the Shareholder after the tender will be increased by the Shareholders adjusted tax basis in the Shares sold in the tender and decreased by the portion of such distribution not treated as a dividend. If the portion of the distribution not treated as a dividend exceeds the adjusted tax basis of the Shares held (or deemed held under Section 318 of the Code) by the Shareholder after the tender (determined after increasing such basis by the adjusted tax basis of the Shares sold in the tender), such excess portion of the distribution will be a capital gain in the hands of the Shareholder. In the case of a tendering U.S. Shareholder that is a corporation treated as receiving a distribution from the Fund pursuant to the Offer, special basis adjustments may also apply with respect to any Shares of such U.S. Shareholder not repurchased pursuant to the Offer. Provided that no tendering Shareholder is treated as receiving a dividend as a result of selling Shares pursuant to the Offer, Shareholders who do not sell Shares pursuant to the Offer will not realize constructive distributions on their Shares as a result of other Shareholders selling Shares in the Offer. In the event that any tendering Shareholder is deemed to receive a dividend, Shareholders whose proportionate ownership of the Fund increases as a result of the tender may be deemed to receive a constructive distribution in an amount equal to the increase in their proportionate ownership of the Fund as a result of the tender. Such constructive distribution will be treated as a dividend to the extent of current or accumulated earnings and profits allocable to it. Under the wash sale rules under the Code, a loss recognized on Shares sold pursuant to the Offer will ordinarily be disallowed to the extent a U.S. Shareholder acquires Shares within 30 days before or after the date the Shares are sold pursuant to the Offer and, in that event, the basis and holding period of the Shares acquired will be adjusted to reflect the disallowed loss. The Depositary may be required to withhold 28% of the gross proceeds paid to a U.S. Shareholder or other payee pursuant to the Offer unless either: (a) the U.S. Shareholder has completed and submitted to the Depositary a Form W-9 (or Substitute Form W-9), providing the U.S. Shareholders employer identification number or social security number as applicable, and certifying under penalties of perjury that: (a) such number is correct; (b) either (i) the U.S. Shareholder is exempt from backup withholding, (ii) the U.S. Shareholder has not been notified by the IRS that the U.S. Shareholder is subject to backup withholding as a result of an under-reporting of interest or |
15 |
EVERGREEN UTILITIES AND HIGH INCOME FUND March 22, 2005 |
16 |
EQUISERVE TRUST COMPANY, N.A., DEPOSITARY Telephone Number: (888) 396-7866 |
By First Class Mail: | By Registered, Certified Or Express Mail or Overnight Courier: |
By Hand: | ||
EquiServe Trust Company, N.A. | EquiServe Trust Company, N.A. | EquiServe Trust Company, N.A. | ||
Attn: Corporate Actions | Attn: Corporate Actions | 17 Battery Park Place | ||
P.O. Box 43014 | 161 Baystate Drive | 11th Floor | ||
Providence, RI 02940-3014 | Braintree, MA 02184 | New York, NY 10004 |
EQUISERVE TRUST COMPANY, N.A., DISTRIBUTION AGENT Telephone Number: (732) 417-2653 EquiServe Trust Company, N.A. EVERGREEN UTILITIES AND HIGH INCOME FUND March 22, 2005 |
LETTER OF TRANSMITTAL to Accompany Common Shares, No Par Value of EVERGREEN UTILITIES AND HIGH INCOME FUND Tendered Pursuant to the Offer to Purchase Dated March 22, 2005 |
THE OFFER WILL EXPIRE AT 5:00 P.M. EASTERN TIME ON APRIL 20, 2005, UNLESS THE OFFER IS EXTENDED. SHARES MAY BE WITHDRAWN AT ANY TIME BEFORE THE OFFER EXPIRES. |
Depositary Telephone Number: (888) 396-7866 Depositary Addresses: |
By First Class Mail: | By Registered, Certified Or Express Mail or Overnight Courier: |
By Hand: | ||
EquiServe Trust Company, N.A. Attn: Corporate Actions P.O. Box 43014 Providence, RI 02940-3014 |
EquiServe Trust Company, N.A. Attn: Corporate Actions 161 Baystate Drive Braintree, MA 02184 |
EquiServe Trust Company, N.A. 17 Battery Park Place 11th Floor New York, NY 10004 |
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. |
DESCRIPTION OF SHARES TENDERED (See Instructions 3 and 4) | |||
Name(s) and Address(es) of Registered Owner(s) (Please fill in, if blank, exactly the name(s) in which shares are registered) |
Shares Tendered* (Attach Additional Signed List, if Necessary) |
Certificate Number(s)* Total Shares Tendered |
Total Number of Shares Represented by Certificate(s) |
Number of Shares Tendered** |
|
Total Shares Owned ______ | |||
Tendered of Total Shares Owned ______% |
* | Need not be completed by Shareholders who tender Shares by book-entry transfer. | |||
** | If the Shares tendered hereby are in certificate form, the certificates representing such Shares MUST be returned together with this Letter of Transmittal. Unless otherwise indicated, it will be assumed that all Shares evidenced by certificates delivered to the Depositary are being tendered. |
This Letter of Transmittal is to be used (a) if you desire to effect the tender transaction yourself, (b) if you intend to request your broker, dealer, commercial bank, trust company or other nominee to effect the transaction for you and the Shares are not registered in the name of such broker, dealer, commercial bank, trust company or other nominee, and (c) by a broker, dealer, commercial bank, trust company or other nominee effecting the transaction as a registered owner or on behalf of a registered owner. To accept the Offer in accordance with its terms, a Letter of Transmittal properly completed and bearing original signature(s) and the original of any required signature guarantee(s), any certificates representing Shares tendered, and any other documents required by this Letter of Transmittal, must be mailed or delivered to EquiServe Trust Company, N.A. (the Depositary) at an appropriate address set forth above and must be received by the Depositary prior to 5:00 p.m. Eastern Time on April 20, 2005, or such later time and date to which the Offer is extended, unless the tendering party has satisfied the conditions for guaranteed delivery described in Section 4(e) of the Offer to Purchase. Delivery of documents to a book-entry transfer facility does not constitute delivery to the Depositary. THE UNDERSIGNED ALSO TENDERS UNCERTIFICATED SHARES HELD IN THE NAME(S) OF THE UNDERSIGNED BY THE FUNDS TRANSFER AGENT PURSUANT TO THE FUNDS DIVIDEND REINVESTMENT PLAN, IF ANY. CHECK THIS BOX IF THERE ARE ANY SUCH SHARES. |
THIS BOX SHOULD BE CHECKED IF, IN ADDITION TO SHARES TENDERED HEREBY, SHARES ARE ALSO CONSTRUCTIVELY OWNED BY THE UNDERSIGNED AS DETERMINED UNDER SECTION 318 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. |
A SEPARATE LETTER OF TRANSMITTAL MUST BE SUBMITTED BY EACH REGISTERED OWNER OF SHARES WHICH ARE CONSIDERED TO BE CONSTRUCTIVELY OWNED BY THE UNDERSIGNED. The boxes below are to be checked by eligible institutions only. |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE DEPOSITORY TRUST COMPANY (DTC) AND COMPLETE THE FOLLOWING: |
NAME OF TENDERING INSTITUTION: |
DTC PARTICIPANT NUMBER: |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: |
NAME(S) OF REGISTERED HOLDER(S): |
WINDOW TICKET NUMBER (IF ANY): |
DATE OF EXECUTION OF NOTICE OF GUARANTEED DELIVERY: |
NAME OF ELIGIBLE INSTITUTION WHICH GUARANTEED DELIVERY: |
DTC PARTICIPANT NUMBER (IF DELIVERED BY BOOK-ENTRY TRANSFER): |
NOTE: SIGNATURE(S) MUST BE PROVIDED BELOW. |
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. Ladies and Gentlemen: The person(s) signing this Letter of Transmittal (the Signor) hereby tender(s) to Evergreen Utilities and High Income Fund, a non-diversified, closed-end management investment company organized as a statutory trust under the laws of the State of Delaware (the Fund), the above-described common shares, no par value (the Shares), of the Fund, for purchase by the Fund at a price (the Purchase Price) equal to the net asset value (NAV) per Share determined as of the close of the regular trading session of the New York Stock Exchange on April 21, 2005 (or, if the Offer as defined below is extended, on the date after the Expiration Date as defined in the Offer to Purchase) in cash, under the terms and subject to the conditions set forth in the Offer to Purchase dated March 22, 2005, receipt of which is hereby acknowledged, and in this Letter of Transmittal (which Offer to Purchase and Letter of Transmittal, together with any amendments or supplements thereto, collectively constitute the Offer). Subject to, and effective upon, acceptance for payment of, or payment for, Shares tendered herewith in accordance with the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms or conditions of any such extension or amendment), the Signor hereby sells, assigns and transfers to, or upon the order of, the Fund, all right, title and interest in and to all of the Shares that are being tendered hereby that are purchased pursuant to the Offer, and hereby irrevocably constitutes and appoints EquiServe Trust Company, N.A. (the Depositary) as attorney-in-fact of the Signor with respect to such Shares, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (i) present certificate(s) for such Shares, if any, for cancellation and transfer on the Funds books and (ii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares, subject to the next paragraph, all in accordance with the terms and subject to the conditions set forth in the Offer. The Signor hereby represents and warrants that (i) the Signor, if a broker, dealer, commercial bank, trust company or other nominee, has obtained the tendering Shareholders instructions to tender pursuant to the terms and conditions of this Offer in accordance with the letter from the Fund to brokers, dealers, commercial banks, trust companies and other nominees; (ii) when and to the extent the Fund accepts the Shares for purchase, the Fund will acquire good, marketable and unencumbered title thereto, free and clear of all security interests, liens, restrictions, charges, encumbrances, conditional sales agreements or other obligations relating to their sale or transfer, and not subject to any adverse claim; (iii) on request, the Signor will execute and deliver any additional documents that the Depositary or the Fund deems necessary or desirable to complete the assignment, transfer and purchase of the Shares tendered hereby; and (iv) the Signor has read and agrees to all of the terms and conditions of the Offer. The name(s) and address(es) of the registered owner(s) should be printed as on the registration of the Shares. If the Shares tendered hereby are in certificate form, the certificate(s) representing such Shares must be returned together with this Letter of Transmittal. The Signor recognizes that, under certain circumstances as set forth in the Offer to Purchase, the Fund may amend, extend or terminate the Offer or may not be required to purchase any of the Shares tendered hereby. In any such event, the Signor understands that certificate(s) for the Shares not purchased, if any, will be returned to the Signor at its registered address unless otherwise indicated under the Special Delivery Instructions below. The Signor recognizes that the Fund has no obligation, pursuant to the Special Payment Instructions set forth below, to transfer any Shares from the name of the registered owner thereof if the Fund purchases none of such Shares. The Signor understands that acceptance of Shares by the Fund for payment will constitute a binding agreement between the Signor and the Fund upon the terms and subject to the conditions of the Offer. |
The check for the purchase price of the tendered Shares purchased will be issued to the order of the Signor and mailed to the address indicated, unless otherwise indicated below in the box titled Special Payment Instructions or the box titled Special Delivery Instructions. The Fund will not pay interest on the purchase price under any circumstances. All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the Signor and all obligations of the Signor hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the Signor. Except as stated in the Offer, this tender is irrevocable. Unless otherwise indicated herein under Special Payment Instructions, please issue the check for the purchase price and/or return any Share certificates not accepted for payment in the name(s) of the registered holder(s) appearing above under Description of Shares Tendered. Similarly, unless otherwise indicated under Special Delivery Instructions, please mail the check for the purchase price for any Shares purchased and/or return any Share certificates not accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing under Description of Shares Tendered. In the event that both the Special Payment Instructions and the Special Delivery Instructions are completed, please issue the check for the purchase price and/or return any Share certificates not accepted for payment in the name of, and deliver such check and/or return any such Share certificates to, the person(s) so indicated. The undersigned recognizes that the Fund has no obligation pursuant to the Special Payment Instructions to transfer any Shares from the name of the registered holder thereof if the Fund does not accept for payment any of the Shares tendered hereby. |
SPECIAL PAYMENT INSTRUCTIONS (See Instructions 1, 5, 6 and 7) |
SPECIAL PAYMENT INSTRUCTIONS (See Instructions 1, 5, 6 and 7) |
|||||||
To be completed ONLY if any certificate for Shares not purchased, and/or a check for the purchase price of Shares accepted for payment, is to be issued in the name of someone other than the undersigned. | To be completed ONLY if any certificate for Shares not purchased, and/or a check for the purchase price of Shares accepted for payment and issued in the name of the registered owner(s), is to be sent to someone other than the registered owner(s) or to the registered owner(s) at an address other than that shown above. | |||||||
Issue: | Check to: | |||||||
Certificate(s) to: | Mail: | Check to: | ||||||
Name(s)_____________________________________________ | Certificate(s) to: | |||||||
(Please Print) | Name(s)_____________________________________________ | |||||||
Address(es)__________________________________________ | (Please Print) | |||||||
___________________________________________________ | Address(es)__________________________________________ | |||||||
___________________________________________________ | ___________________________________________________ | |||||||
(Include Zip Code) |
___________________________________________________ | |||||||
(Include Zip Code) | ||||||||
___________________________________________________ | ||||||||
(Tax Identification or Social Security Number(s)) | ___________________________________________________ | |||||||
(Tax Identification or Social Security Number(s)) |
SHAREHOLDER(S) SIGN HERE (See Instructions 1 and 5) (Please See Substitute Form W-9) (Please Print Except for Signature) |
||
Must be signed by registered owner(s) exactly as Shares are registered. If signature is by an attorney-in-fact, executor, administrator, trustee, guardian, officer of a corporation or another acting in a fiduciary or representative capacity, please set forth the full title. See Instruction 5. Signature guarantees are required in certain circumstances. See Instruction 1. By signing this Letter of Transmittal, you represent that you have read the entire Letter of Transmittal. |
||
(Signature(s) Exactly as Shares Are Registered) |
Dated | , 2005 |
Name(s) | |||
(Please Print Name(s) of Owner(s) Exactly as Shares Are Registered) |
(Tax Identification or Social Security Number(s)) | |||
Daytime Telephone Number, including Area Code | |||
GUARANTEE OF SIGNATURE(S) (See Instructions 1 and 5) (Please Print Except for Signature) |
Authorized Signature |
Name |
Title |
Name of Firm |
Address | |||
(Include Zip Code) |
Telephone Number, including Area Code |
Dated | , 2005 | |||
INSTRUCTIONS Forming Part of the Terms and Conditions of the Offer |
1. Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal if (a) this Letter of Transmittal is signed by the registered holder(s) of Shares tendered hereby (including, for purposes of this document, any participant in the book-entry transfer facility of The Depository Trust Company (DTC) whose name appears on DTCs security position listing as the owner of Shares), unless such holder(s) has completed either the box entitled Special Payment Instructions or the box entitled Special Delivery Instructions included in this Letter of Transmittal, or (b) the Shares are tendered for the account of a firm (an Eligible Institution) which is a broker, dealer, commercial bank, credit union, savings association or other entity which is a member in good standing of a stock transfer associations approved medallion program (such as STAMP, SEMP or MSP). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5. 2. Delivery of Letter of Transmittal and Certificates. This Letter of Transmittal is to be used (a) if Shares are to be forwarded herewith, (b) if uncertificated Shares held by the Funds transfer agent pursuant to the Funds Dividend Reinvestment Plan are to be tendered, or (c) if tenders are to be made by book-entry transfer to the account maintained by the Depositary pursuant to the procedure set forth in Section 4 of the Offer to Purchase. THE METHOD OF DELIVERY OF ANY DOCUMENTS, INCLUDING SHARE CERTIFICATES, THIS LETTER OF TRANSMITTAL, AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY IS AT THE OPTION AND SOLE RISK OF THE TENDERING SHAREHOLDER. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. Delivery will be deemed made only when actually received by the Depositary. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. Shareholders have the responsibility to cause their Shares (in proper certificated or uncertificated form), this Letter of Transmittal properly completed and bearing original signature(s) and the original of any required signature guarantee(s) and any other documents required by this Letter of Transmittal to be timely delivered in accordance with the Offer. The Fund will not accept any alternative, conditional or contingent tenders. All tendering Shareholders, brokers, dealers, commercial banks, trust companies and other nominees, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance of their tender. 3. Inadequate Space. If the space provided in any of the boxes to be completed is inadequate, the necessary information should be listed on a separate schedule signed by all of the required signatories and attached hereto. 4. Tender of All Shares Held by the Stockholder. A Shareholder wishing to accept the Offer must tender, or cause the tender of, at least 20% of the Shares owned by the Shareholder and the Shares attributed to the Shareholder for federal income tax purposes under Section 318 of the Internal Revenue Code of 1986, as amended, as of the date of purchase of Shares pursuant to the Offer. Shareholders should consult their tax advisors as to the application of the constructive ownership rules of Section 318. If more than 546,487 Shares are duly tendered prior to the expiration of the Offer (and not timely withdrawn), the Fund will purchase Shares from tendering Shareholders in accordance with the terms and subject to the conditions specified in the Offer to Purchase, on a pro rata basis in accordance with the number of Shares duly tendered by each Shareholder during the period the Offer is open (and not timely withdrawn), unless the Fund determines not to purchase any Shares. Certificates representing Shares tendered but not purchased will be returned promptly following the termination, expiration or withdrawal of the Offer, without further expense to the tendering Shareholder. However, the Fund will accept all Shares tendered by any Shareholder who owns, beneficially or of record, an aggregate of not more than 99 Shares and who tenders all such Shares by means of the Letter of Transmittal tendered by or on behalf of that Shareholder. 5. Signatures on Letter of Transmittal, Authorizations and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificate(s) for the Shares tendered without alteration, enlargement or any change whatsoever. If any of the Shares tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal. If any of the tendered Shares are registered in different names (including Shares attributed to the tendering Shareholder for Federal income tax purposes under Section 318 of the Code) on several certificates, it is necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations. If this Letter of Transmittal or any certificate for Shares tendered or stock powers relating to Shares tendered are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Fund of their authority so to act must be submitted. If this Letter of Transmittal is signed by the registered holder(s) of the Shares transmitted hereby, no endorsements of certificates or separate stock powers are required unless payment is to be made to, or certificates for Shares not purchased are to be issued in the name of, a person other than the registered holder(s). Signatures on such certificates or stock powers must be guaranteed by an Eligible Institution. |
If this Letter of Transmittal is signed by a person other than the registered holder(s) of the certificate(s) listed thereon, the certificate(s) must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear(s) on the certificate(s) for the Shares involved. Signatures on such certificates or stock powers must be guaranteed by an Eligible Institution. 6. Transfer Taxes. The Fund will pay any transfer taxes payable on the transfer to it of Shares purchased pursuant to the Offer, provided, however, that if (a) payment of the Purchase Price is to be made to, or (in the circumstances permitted by the Offer) unpurchased Shares are to be registered in the name(s) of, any person(s) other than the registered owner(s), or (b) if any tendered certificate(s) are registered, or the Shares tendered are otherwise held, in the name(s) of any person(s) other than the registered owner, the amount of any transfer taxes (whether imposed on the registered owner(s) or such other person(s)) payable on account of the transfer to such person(s) will be deducted from the Purchase Price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted herewith. 7. Special Payment and Delivery Instructions. If certificate(s) for unpurchased Shares and/or check(s) are to be issued in the name of a person other than the registered owner(s) or if such certificate(s) and/or check(s) are to be sent to someone other than the registered owner(s) or to the registered owner(s) at a different address, the captioned boxes Special Payment Instructions and/or Special Delivery Instructions in this Letter of Transmittal must be completed. Please note that in the case of issuance in a different name, the tax identification number of the person named must also be indicated. 8. Determinations of Validity. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of tenders will be determined by the Fund, in its sole discretion, which determination shall be final and binding. The Fund reserves the absolute right to reject any or all tenders determined not to be in appropriate form or to refuse to accept for payment, purchase or pay for, any Shares if, in the opinion of the Funds counsel, accepting, purchasing or paying for such Shares would be unlawful. The Fund also reserves the absolute right to waive any of the conditions of the Offer or any defect in any tender, whether generally or with respect to any particular Share(s) or Shareholder(s). The Funds interpretations of the terms and conditions of the Offer (including these instructions) shall be final and binding. NEITHER THE FUND, ITS BOARD OF TRUSTEES, THE ADVISOR, THE DEPOSITARY NOR ANY OTHER PERSON IS OR WILL BE OBLIGATED TO GIVE ANY NOTICE OF ANY DEFECT OR IRREGULARITY IN ANY TENDER, AND NONE OF THEM WILL INCUR ANY LIABILITY FOR FAILURE TO GIVE ANY SUCH NOTICE. 9. Questions and Requests for Assistance and Additional Copies. Questions and requests for assistance may be directed to the Depositary at the mailing address provided above or by telephoning (888) 396-7866. Requests for additional copies of the Offer to Purchase and this Letter of Transmittal may be directed to EquiServe Trust Company, N.A., the Distribution Agent, by telephoning (732) 417-2653. Shareholders who do not own Shares directly may also obtain such information and copies from their broker, dealer, commercial bank, trust company or other nominee. Shareholders who do not own Shares directly are required to tender their Shares through their broker, dealer, commercial bank, trust company or other nominee and should NOT submit this Letter of Transmittal to the Depositary. 10. Restriction on Short Sales. Section 14(e) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and Rule 14e-4 promulgated thereunder, make it unlawful for any person, acting alone or in concert with others, to tender Shares in a partial tender offer for such persons own account unless at the time of tender, and at the time the Shares are accepted for payment, the person tendering has a net long position equal to or greater than the amount tendered in (a) Shares, and will deliver or cause to be delivered such Shares for the purpose of tender to the person making the Offer within the period specified in the Offer, or (b) an equivalent security and, upon acceptance of his or her tender, will acquire Shares by conversion, exchange, or exercise of such equivalent security to the extent required by the terms of the Offer, and will deliver or cause to be delivered the Shares so acquired for the purpose of tender to the Fund prior to or on the Expiration Date. Section 14(e) and Rule 14e-4 provide a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. The acceptance of Shares by the Fund for payment will constitute a binding agreement between the tendering Shareholder and the Fund upon the terms and subject to the conditions of the Offer, including the tendering Shareholders representation that the Shareholder has a net long position in the Shares being tendered within the meaning of Rule 14e-4 and that the tender of such Shares complies with Rule 14e-4. 11. Backup Withholding Tax. Under the U.S. federal income tax laws, the Depositary may be required to withhold 28% of the amount of any payment made to certain holders pursuant to the Offer. In order to avoid such backup withholding tax, each tendering U.S. Shareholder who has not already submitted a correct, completed and signed Form W-9 or Substitute Form W-9 to the Fund should provide the Depositary with the Shareholders correct taxpayer identification number (TIN) by completing a Substitute Form W-9, a copy of which is included in this Letter of Transmittal. In general, if a U.S. Shareholder is an individual, the TIN is the individuals Social Security number. If the Depositary is not provided with the correct TIN, the U.S. Shareholder may be subject to a penalty imposed by the Internal Revenue Service. Certain U.S. Shareholders (including, among others, all U.S. corporations) are not subject to these backup withholding and reporting requirements, but should nonetheless complete a Substitute Form W-9 to avoid the possible erroneous imposition of a backup withholding tax. In order for a non-U.S. Shareholder to avoid the 28% backup withholding tax, the non-U.S. Shareholder must submit a statement to the Depositary signed under penalties of perjury attesting as to its non-U.S. status. A copy of Form W-8BEN and Form W-8IMY and instructions for completing those forms are enclosed for such Shareholders. |
Backup withholding tax is not an additional federal income tax. Rather, the federal income tax liability of a person subject to backup withholding tax will be reduced by the amount of tax withheld. If backup withholding results in an overpayment of taxes, the Shareholder may claim a refund from the Internal Revenue Service. All Shareholders are urged to consult their own tax advisors as to the specific tax consequences to them of the Offer. The tax information set forth above is included for general information only and may not be applicable to the situations of certain taxpayers. 12. Withdrawal Rights. At any time prior to 5:00 p.m. Eastern Time on the Expiration Date, and, if the Shares have not by then been accepted for payment by the Fund, at any time after May 13, 2005, any Shareholder may withdraw all, but not fewer than all, of the Shares that the Shareholder has tendered. To be effective, a written notice of withdrawal of Shares tendered must be timely received by the Depositary at the appropriate address set forth on the first page of this Letter of Transmittal. Shareholders may also send a facsimile transmission notice of withdrawal, which must be timely received by the Depositary at (781) 380-3388 (confirm by telephone at (781) 843-1833 extension 200), and the original notice of withdrawal must be delivered to the Depositary by overnight courier or by hand the next day. Any notice of withdrawal must specify the name(s) of the person having tendered the Shares to be withdrawn, the number of Shares to be withdrawn and, if one or more certificates representing such Shares have been delivered or otherwise identified to the Depositary, the name(s) of the registered owner(s) of such Shares as set forth in such certificate(s) if different from the name(s) of the person tendering the Shares. If one or more certificates have been delivered to the Depositary, then, prior to the release of such certificate(s), the certificate number(s) shown on the particular certificate(s) evidencing such Shares must also be submitted and the signature on the notice of withdrawal must be guaranteed by an Eligible Institution. All questions as to the validity, form and eligibility (including time of receipt) of notices of withdrawal will be determined by the Fund in its sole discretion, which determination shall be final and binding. Shares properly withdrawn will not thereafter be deemed to be tendered for purposes of the Offer. Withdrawn Shares, however, may be re-tendered by following the procedures described in Section 4 prior to 5:00 p.m. Eastern Time on the Expiration Date. Except as otherwise provided in the Offer to Purchase, tenders of Shares made pursuant to the Offer will be irrevocable. NEITHER THE FUND, ITS BOARD OF TRUSTEES, THE ADVISOR, THE DEPOSITARY NOR ANY OTHER PERSON IS OR WILL BE OBLIGATED TO GIVE ANY NOTICE OF ANY DEFECT OR IRREGULARITY IN ANY NOTICE OF WITHDRAWAL, NOR SHALL ANY OF THEM INCUR ANY LIABILITY FOR FAILURE TO GIVE ANY SUCH NOTICE. 13. Certain Conditions of the Offer. Notwithstanding any other provision of the Offer or the Funds Prospectus dated April 27, 2004, the policy of the Board of Trustees of the Fund (the Board), which may be changed by the Board, is that the Fund will not purchase Shares pursuant to the Offer if (a) such purchases would impair the Funds status as a regulated investment company under the Federal tax laws (which would make the Fund a taxable entity, causing the Funds income to be taxed at the corporate level in addition to the taxation of Shareholders who receive dividends from the Fund); (b) the Fund would not be able to liquidate portfolio securities in a manner that is orderly and consistent with the Funds investment objective and policies in order to purchase tendered common shares; (c) such action would result in the Fund failing to satisfy the American Stock Exchanges (the AMEX) minimum listing requirements (the market value of the outstanding publicly held Shares must be at least $10,000,000 and the Evergreen closed-end funds that are listed on the AMEX as a group (including the Fund) must have an average market value of publicly held shares or net assets of at least $15,000,000 and a total market value of publicly held shares or net assets as a group of at least $75,000,000); or (d) there is, in the judgment of the Board, any (1) legal action or proceeding instituted or threatened challenging the tender offer or otherwise materially adversely affecting the Fund; (2) declaration of a banking moratorium by Federal or state authorities or any suspension of payment by banks in the United States, which is material to the Fund; (3) limitation imposed by Federal or state authorities on the extension of credit by lending institutions; (4) commencement of war, armed hostilities or other international or national calamity directly or indirectly involving the United States which is material to the Fund; (5) suspension of or limitation on prices for trading securities generally on the AMEX or any foreign exchange on which portfolio securities of the Fund are traded; (6) other event or condition that would have a material adverse effect on the Fund or its shareholders if tendered common shares were purchased; or (7) the Board determines that effecting the transaction would constitute a breach of their fiduciary duty owed the Fund or its stockholders. Thus, there can be no assurance that the Board of Trustees will proceed with any tender offer. The Board of Trustees may modify these conditions at any time. The foregoing conditions are for the Funds sole benefit and may be asserted by the Fund regardless of the circumstances giving rise to any such condition (including any action or inaction of the Fund), and any such condition may be waived by the Fund, in whole or in part, at any time and from time to time in its reasonable judgment. The Funds failure at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right; the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts or circumstances; and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Fund concerning the events described in the Offer to Purchase shall be final and binding. The Fund reserves the right, at any time during the duration of the Offer, to amend, extend or terminate the Offer in any respect. * * * * * * IMPORTANT: THIS LETTER OF TRANSMITTAL PROPERLY COMPLETED AND BEARING ORIGINAL SIGNATURE(S) AND THE ORIGINAL OF ANY REQUIRED SIGNATURE GUARANTEE(S), SHARES (IN PROPER CERTIFICATED OR UNCERTIFICATED FORM) AND OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE DEPOSITARY, OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION OF THE OFFER. |
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Notice of Guaranteed Delivery Regarding the Offer by EVERGREEN UTILITIES AND HIGH INCOME FUND |
To Purchase for Cash 546,487 of Its Issued and Outstanding Shares at Net Asset Value Per Share
This form must be used to accept the Offer (as defined below) if a Shareholders certificates for Shares are not immediately available, if applicable, or if time will not permit the Letter of Transmittal and other required documents to reach the Depositary on or before the Expiration Date. Each term used in this form that is not otherwise defined herein shall have the meaning specified in the Offer to Purchase dated March 22, 2005. This form must be signed by the Shareholder and sent to the Depositary by hand, overnight courier, mail or facsimile at the appropriate address or facsimile number set forth below. Tenders using this form may be made only by or through an Eligible Institution as defined in Section 4(b) of the Offer to Purchase. Depositary Addresses: |
By First Class Mail: | By Registered, Certified Or Express Mail or Overnight Courier: |
By Hand: | ||
EquiServe Trust Company, N.A. Attn: Corporate Actions P.O. Box 43014 Providence, RI 02940-3014 |
EquiServe Trust Company, N.A. Attn: Corporate Actions 161 Baystate Drive Braintree, MA 02184 |
EquiServe Trust Company, N.A. 17 Battery Park Place 11th Floor New York, NY 10004 |
By Facsimile: EquiServe Trust Company, N.A. DELIVERY OF THIS INSTRUMENT OTHER THAN AS SET FORTH ABOVE DOES NOT |
Ladies and Gentlemen:
The undersigned hereby tenders to Evergreen Utilities and High Income Fund (the Fund), upon the terms and subject to the conditions set forth in its Offer to Purchase dated March 22, 2005 and the related Letter of Transmittal (which together with any amendments or supplements thereto collectively constitute the Offer), receipt of which are hereby acknowledged, (i) the number of Shares specified below pursuant to the guaranteed delivery procedures set forth in Section 4(e) of the Offer to Purchase and (ii) the number of Shares specified below held in the name(s) of the registered holder(s) by the Funds transfer agent pursuant to the Funds Dividend Reinvestment Plan. (Please Print Except for Signature(s)): |
Number of Shares Tendered: ______________ Certificate Nos. (if available): ______________ If Shares will be tendered by book-entry transfer to The Depository Trust Company, please check box: DTC Participant Number: _________________ Name(s) of Record Holder(s): ______________ Address: _____________________________ Telephone Number, including Area Code: ____________________________________ If the undersigned is the beneficial owner of the Shares being tendered, the undersigned hereby represents and warrants that at least 20% of the Shares owned by the undersigned as of the date of purchase of Shares by the Fund pursuant to the Offer and all Shares attributed to the undersigned for Federal income tax purposes as of such date under Section 318 of the Internal Revenue Code of 1986, as amended, have been or will be tendered pursuant to the Offer. Dated: __________________________, 2005 |
Individual(s): _________________________ _____________________________________ _____________________________________ _____________________________________ Signature(s):___________________________ _____________________________________ _____________________________________ _____________________________________ Entity:________________________________ Name of Firm: _________________________ _____________________________________ Authorized Signature:____________________ Name:________________________________ Title:_________________________________ |
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GUARANTEE | ||
The undersigned, an Eligible Institution as defined in Section 4(b) of the Offer to Purchase, hereby, with respect to the Shares tendered hereby pursuant to the guaranteed delivery procedures set forth in Section 4(e) of the Offer to Purchase: (a) represents that the person(s) named on the previous page own(s) such Shares within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended; (b) represents that the tender of such Shares complies with Rule 14e-4; and (c) guarantees to deliver to the Depositary certificates representing such Shares, in proper form for transfer (or to tender Shares pursuant to the procedure for book-entry transfer into the Depositarys account at The Depository Trust Company if so specified on the foregoing page), together with a properly completed and duly executed Letter of Transmittal with any required signature guarantees, and any other required documents, prior to 5:00 P.M. Eastern Time on the second American Stock Exchange trading day after the date of execution of this Guarantee. (Please Print Except for Signature) |
Name of Firm: | ||||||
Authorized Signature: |
Name: | Title: |
Address: | Telephone Number, including Area Code: |
(Include Zip Code) | ||||
Dated: ___________________, 2005 |
DO NOT SEND SHARE CERTIFICATES WITH THIS FORM. YOUR SHARE CERTIFICATES MUST BE SENT WITH THE LETTER OF TRANSMITTAL. |
This announcement is not an offer to purchase or a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made only by the Offer to Purchase dated March 22, 2005 and the related Letter of Transmittal and is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which making or accepting the Offer would violate that jurisdiction's laws. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of the Fund (as defined below) by one or more registered brokers or dealers licensed under that jurisdiction's laws.
EVERGREEN UTILITIES AND HIGH INCOME FUND
200 Berkeley Street
Boston, Massachusetts 02116-5034
Notice of Offer to Purchase for Cash 546,487 of Its Issued and Outstanding Common Shares
at Net Asset Value Per Share
THE OFFER WILL EXPIRE AT 5:00 P.M. EASTERN TIME ON APRIL 20, 2005,
UNLESS THE OFFER IS EXTENDED.
Evergreen Utilities and High Income Fund, a non-diversified, closed-end management investment company organized under the laws of the State of Delaware as a statutory trust (the "Fund"), is offering to purchase for cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 22, 2005 and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") up to 5% or 546,487 in the aggregate of its issued and outstanding common shares, no par value ("Shares") at a price equal to the net asset value ("NAV") per Share determined as of the close of the regular trading session of the New York Stock Exchange (the "NYSE") on April 21, 2005, or, if the Offer is extended by the Board of Trustees of the Fund, on the day after the date to which the Offer is extended. The Offer will expire at 5:00 p.m. Eastern Time on April 20, 2005, unless extended. An extension would be communicated by issuance of a press release or other public announcement. The NAV as of the close of the regular trading session of the NYSE on March 16, 2005 was $22.78 per Share. The purpose of the Offer is to fulfill an undertaking made by the Fund pursuant to the Evergreen Enhanced Liquidity Plan as described in the Funds Prospectus, dated April 27, 2004. The Offer is not conditioned upon shareholders tendering in the aggregate any minimum number of Shares. However, Shareholders must tender at least 20% of the Shares owned by such Shareholder or attributed to it under Section 318 of the Internal Revenue Code.
If more than 546,487 Shares are duly tendered prior to the expiration of the Offer, including any extension (and not timely withdrawn), unless the Fund determines not to purchase any Shares, the Fund will purchase 546,487 Shares on a pro rata basis in accordance with the number of Shares tendered by or on behalf of each shareholder during the period the Offer is open (and not timely withdrawn). However, the Fund will accept all Shares tendered by any shareholder who owns, beneficially or of record, an aggregate of not more than 99 Shares and who tenders all such Shares by means of the Letter of Transmittal tendered by or on behalf of that Shareholder. The Fund does not contemplate extending the Offer and increasing the number of Shares covered thereby by reason of more than 546,487 Shares having been tendered. The acceptance of tendered Shares for payment and purchase will be by action of the Fund's Board of Trustees with notice thereof to the Depositary. The Fund will deposit the aggregate purchase price with the Depositary, which will make payment to shareholders in accordance with the Offer. For taxable shareholders, the sale of Shares pursuant to the Offer will be a taxable transaction for federal income tax purposes and may also be a taxable transaction under applicable state, local and foreign tax laws.
Shareholders may tender Shares registered in their names only by completing a Letter of Transmittal and submitting it and any other documents required by the Letter of Transmittal in proper form to the Depositary at the appropriate address set forth in the Offer before the Offer expires, including any extension. Shareholders whose Shares are held by a broker, dealer, commercial bank, trust company or other nominee (e.g., in "street name") can only tender their Shares by directing that firm to properly complete, compile and deliver the necessary documents on a timely basis to the Depositary. Shares tendered pursuant to the Offer may be withdrawn by written or facsimile notice received by the Depositary at the appropriate address at any time prior to 5:00 p.m. Eastern Time on April 20, 2005 (or, if the Offer is extended, at any time prior to 5:00 p.m. Eastern Time on the new expiration date), and, if Shares tendered have not by then been accepted for payment by the Fund, the Shares may also be withdrawn at any time after May 13, 2005. The notice is to specify the name of the shareholder who tendered the Shares, the number of Shares being withdrawn (which must be all of the Shares tendered) and, as regards Share certificates which represent tendered Shares that have been delivered or otherwise identified to the Depositary, the name of the registered owner(s) of such Shares if different than the person who tendered the Shares.
The information required to be disclosed by paragraph (d)(1) of Rule 13e-4 under the Securities Exchange Act of 1934, as amended, is contained in the Offer to Purchase and is incorporated herein by reference.
The Offer to Purchase and the related Letter of Transmittal contain important information that should be read carefully before any decision is made with respect to the Offer.
Requests for copies of the Offer to Purchase, the related Letter of Transmittal and any other tender offer documents should be directed to the Distribution Agent at the Distribution Agent's address or telephone number below between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time, Monday through Friday (except holidays). Copies of these documents will be furnished promptly to shareholders upon request at no expense to them. Shareholders who do not own Shares directly may also obtain such documents from the broker, dealer, commercial bank, trust company or other nominee that holds their Shares. Questions and requests for assistance and for current NAV quotations may be directed to the Depositary at the Depositary's address and telephone number below, also between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time, Monday through Friday (except holidays).
Distribution Agent:
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Depositary: |
EquiServe Trust Company, N.A. Attn: Corporate Actions P.O. Box 43014 Providence, RI 02940-3014 Telephone Number: (732) 417-2653 |
EquiServe Trust Company, N.A. Attn: Corporate Actions P.O. Box 43014 Providence, RI 02940-3014 Telephone Number: (888) 396-7866
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March 22, 2005
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees Regarding the Offer by |
EVERGREEN UTILITIES AND HIGH INCOME FUND |
To Purchase for Cash 546,487 of its Issued and Outstanding Shares at Net Asset Value Per Share To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We are enclosing the material listed below relating to the offer by Evergreen Utilities and High Income Fund (the Fund) to purchase up to 5% or 546,487 in the aggregate of its issued and outstanding common shares, no par value (the Shares), for cash at a price equal to their net asset value (NAV) determined as of the close of the regular trading session of the New York Stock Exchange (NYSE) on April 21, 2005 upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 25, 2005 and the related Letter of Transmittal (which together with any amendments or supplements thereto collectively constitute the Offer). THE OFFER EXPIRES AT 5:00 P.M. EASTERN TIME ON APRIL 20, 2005, UNLESS EXTENDED BY THE FUND (THE EXPIRATION DATE). If the Offer is extended beyond April 20, 2005, the purchase price for Shares will be their NAV determined as of the close of the regular trading session of the NYSE on the date after the new Expiration Date. |
The following documents are enclosed: | |
(1) Offer to Purchase dated March 22, 2005; | |
(2) Letter of Transmittal to be used to tender all Shares; | |
(3) Notice of Guaranteed Delivery; and | |
(4) Form of Letter to Clients, which may be sent upon request for information by your clients for whose account you hold shares registered in your name (or in the name of your nominee). |
No fees or commissions will be payable to brokers, dealers or other persons for soliciting tenders of Shares pursuant to the Offer. The Fund will pay all transfer taxes on its purchase of Shares, subject to Instruction 6 of the Letter of Transmittal. Backup withholding tax at a 28% rate may be required unless an exemption is proved or unless the required taxpayer identification information is or has previously been provided to the Fund or the Depositary. Certain withholdings may also apply with respect to payments to non-U.S. Shareholders. See Instruction 11 of the Letter of Transmittal. The Offer is not being made to (nor will tenders be accepted from or on behalf of) Shareholders in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the laws of such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the |
Offer shall be deemed to be made on behalf of the Fund by one or more registered brokers or dealers licensed under the laws of that jurisdiction. If a client instructs you by telephone to tender Shares, please record the telephone conversation (in accordance with applicable law) and ask the client to affirm that at least 20% of the Shares owned by such client as of the date of purchase of Shares pursuant to the Offer and of Shares attributed to such client for Federal income tax purposes as of such date under Section 318 of the Internal Revenue Code of 1986, as amended, have been or will be tendered pursuant to the Offer. Additional copies of the enclosed material may be obtained from EquiServe Trust Company, N.A., the Distribution Agent, in the manner indicated in the Offer to Purchase. Any questions you have with respect to the Offer should be directed to EquiServe Trust Company, N.A., the Depositary, at (888) 396-7866. |
Very truly yours, EVERGREEN UTILITIES AND HIGH INCOME FUND |
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS THE AGENT OF EITHER THE FUND OR THE DEPOSITARY OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENTS WITH RESPECT TO THE OFFER, OTHER THAN THE STATEMENTS SPECIFICALLY SET FORTH IN THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL, OR TO DISTRIBUTE ANY MATERIAL WITH RESPECT TO THE OFFER OTHER THAN AS SPECIFICALLY AUTHORIZED HEREIN. |
Form of Letter to Clients of Brokers, Dealers, EVERGREEN UTILITIES AND HIGH INCOME FUND To Purchase for Cash 546,487 of Its Issued and Outstanding Shares at Net Asset Value Per Share To Our Clients: Enclosed for your consideration are the Offer to Purchase dated March 22, 2005 of Evergreen Utilities and High Income Fund (the Fund) and the related Letter of Transmittal pursuant to which the Fund is offering to purchase up to 5% or 546,487 shares in the aggregate of its issued and outstanding common shares, no par value (the Shares), for cash at a price equal to their net asset value (NAV) determined as of the close of the regular trading session of the New York Stock Exchange (NYSE) on April 21, 2005, upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 22, 2005 and the related Letter of Transmittal (which together with any amendments or supplements thereto collectively constitute the Offer). THE OFFER EXPIRES AT 5:00 P.M. EASTERN TIME ON APRIL 20, 2005, UNLESS EXTENDED BY THE FUND (THE EXPIRATION DATE). If the Offer is extended beyond April 20, 2005, the purchase price for Shares will be their NAV determined as of the close of the regular trading session of the NYSE on the date after the new Expiration Date, as extended. The purpose of the Offer is to fulfill an undertaking made by the Fund pursuant to the Evergreen Enhanced Liquidity Plan as described in the Funds Prospectus, dated April 27, 2004. Information regarding this undertaking, as well as information regarding possible future tender offers by the Fund, is set forth in the Offer to Purchase. The Offer to Purchase and the Letter of Transmittal are being forwarded to you as the beneficial owner of Shares held by us for your account but not registered in your name. We are sending you the Letter of Transmittal for your information only; you cannot use it to tender Shares we hold for your account. A tender of such Shares can be made only by us as the holder of record and only pursuant to your instructions. Your attention is called to the following: |
1. Unless extended, the Offer expires at 5:00 p.m. Eastern Time on April 20, 2005 and withdrawal rights expire at 5:00 P.M. Eastern Time on April 20, 2005. |
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2. The Offer is subject to certain conditions set forth in the Offer to Purchase. Under certain circumstances, the Fund will not be required to accept for payment, purchase or pay for any Shares tendered, and the Fund may also amend, extend or terminate the Offer. |
3. A Shareholder who owns fewer than 100 shares in total wishing to accept the Offer, must tender, or cause the tender of, all of their shares. A Shareholder who owns 100 or more shares wishing to accept the Offer must tender, or cause the tender of, at least 20% of the Shares owned by the Shareholder and attributed to the Shareholder for federal income tax purposes under Section 318 of the Internal Revenue Code of 1986, as amended, as of the date of purchase of Shares pursuant to the Offer. Shareholders should consult their tax advisors as to the application of the constructive ownership rules of Section 318. |
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4. If more than 546,487 Shares are duly tendered (and not timely withdrawn), the Fund will purchase Shares from tendering Shareholders, in accordance with the terms and subject to the conditions specified in the Offer to Purchase, on a pro rata basis in accordance with the number of Shares duly tendered by each Shareholder during the period the Offer is open and not timely withdrawn), unless the Fund determines not to purchase any Shares. However, the Fund will accept all Shares tendered by any Shareholder who owns, beneficially or of record, an aggregate of not more than 99 Shares and who tenders all such Shares by means of the Letter of Transmittal tendered by or on behalf of that Shareholder. |
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5. A broker, dealer, commercial bank, trust company or other nominee may charge a fee for processing transactions on behalf of a Shareholder. Tendering Shareholders are not obligated to pay brokerage commissions or, subject to Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of Shares of the Fund pursuant to the Offer. |
IF YOU WISH TO HAVE US TENDER YOUR SHARES, PLEASE SO INSTRUCT US BY COMPLETING, EXECUTING AND RETURNING TO US THE ATTACHED INSTRUCTION FORM. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF ON OR BEFORE THE EXPIRATION OF THE OFFER. THE OFFER EXPIRES AT 5:00 P.M. EASTERN TIME ON APRIL 20, 2005, UNLESS EXTENDED BY THE FUND. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the Offer or its acceptance would violate the laws of such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of the Fund by one or more registered brokers or dealers licensed under the laws of that jurisdiction. Very truly yours, |
Instructions Regarding the Offer by EVERGREEN UTILITIES AND HIGH INCOME FUND To Purchase for Cash 546,487 of Its Issued and Outstanding Shares at Net Asset Value Per Share THIS FORM IS NOT TO BE USED TO TENDER SHARES DIRECTLY TO THE DEPOSITARY. IT SHOULD BE SENT TO YOUR BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE IF THAT FIRM IS THE HOLDER OF RECORD OF YOUR SHARES AND WILL BE EFFECTING THE TENDER ON YOUR BEHALF. |
DO NOT COMPLETE THIS FORM IF YOU HAVE DECIDED NOT TO TENDER YOUR SHARES. |
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The undersigned acknowledge(s) receipt of your letter and the accompanying Offer to Purchase dated March 22, 2005 and the related Letter of Transmittal (which together with any amendments or supplements thereto collectively constitute the Offer) in connection with the Offer by Evergreen Utilities and High Income Fund (the Fund) to purchase 546,487 shares of its issued and outstanding common shares, no par value (the Shares), at the net asset value per Share as of the close of the regular trading session of the New York Stock Exchange on the date after the Expiration Date (as defined in the Offer to Purchase), on the terms and subject to the conditions of the Offer. |
The undersigned hereby instructs you to tender to the Fund the number of Shares specified below that are held by you for the account of the undersigned, upon the terms and subject to the conditions of the Offer. The undersigned hereby represents and warrants that: (i) at least 20% of all Shares owned by the undersigned as of the date of purchase of Shares pursuant to the Offer and attributed to the undersigned for Federal income tax purposes as of such date under Section 318 of the Internal Revenue Code of 1986, as amended, have been or will be tendered pursuant to the Offer; (ii) the undersigned has a net long position in such Shares within the meaning of Rule 14e-4 promulgated under the Securities Exchange Act of 1934, as amended; and (iii) the tender of such Shares complies with Rule 14e-4. (Please Print Except for Signature(s)) Account Number: Number of Shares Tendered: Name(s) and Tax Identification or Social Security Number(s) of Beneficial Owner(s): Address: |
Telephone Number(s) including Area Code(s): | |
(Signature of beneficial owner) | (Signature of additional beneficial owner, if any) |
Dated: _______________________, 2005 |
Dear Shareholder:
Enclosed for your consideration are the Offer to Purchase dated March 22, 2005 of Evergreen Utilities and High Income Fund (the Fund) and the related Letter of Transmittal pursuant to which the Fund is offering to purchase up to 5% or, in the aggregate, 546,487 shares of its issued and outstanding common shares, no par value (the Shares), for cash at a price equal to their net asset value (NAV) determined as of the close of the regular trading session of the New York Stock Exchange (NYSE) on April 21, 2005, upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 22, 2005 and the related Letter of Transmittal (which together with any amendments or supplements thereto collectively constitute the Offer). THE OFFER EXPIRES AT 5:00 P.M. EASTERN TIME ON APRIL 20, 2005, UNLESS EXTENDED BY THE FUND (THE EXPIRATION DATE). If the Offer is extended beyond April 20, 2005, the purchase price for Shares will be their NAV determined as of the close of the regular trading session of the NYSE on the date after the new Expiration Date, as extended.
Neither the Fund nor its Board of Trustees nor Evergreen Investment Management Company, LLC (the Funds investment adviser) is making any recommendation to any holder of Shares as to whether to tender Shares. Each Shareholder is urged to consult the Shareholders own investment and tax advisors before deciding whether to tender Shares. If, after considering the Offer to Purchase and Letter of Transmittal, you wish to tender your Shares pursuant to the Offer, if you are the record owner of Shares, you should follow the instructions contained in the Offer to Purchase and Letter of Transmittal, and, if the Shares are held of record in the name of a broker, dealer, commercial bank, trust company or other nominee, you should contact that firm to effect the tender for you.
Your attention is called to the following:
1. Unless extended, the Offer expires at 5:00 p.m. Eastern Time on April 20, 2005 and withdrawal rights expire at 5:00 P.M. Eastern Time on April 20, 2005.
2. The Offer is subject to certain conditions set forth in the Offer to Purchase. Under certain circumstances, the Fund will not be required to accept for payment, purchase or pay for any Shares tendered, and the Fund may also amend, extend or terminate the Offer.
3. A Shareholder who owns fewer than 100 shares in total wishing to accept the Offer, must tender, or cause the tender of, all of their shares. A Shareholder who owns 100 or more shares wishing to accept the Offer must tender, or cause the tender of, at least 20% of the Shares owned by the Shareholder and attributed to the Shareholder for federal income tax purposes under Section 318 of the Internal Revenue Code of 1986, as amended, as of the date of purchase of Shares pursuant to the Offer. Shareholders should consult their tax advisors as to the application of the constructive ownership rules of Section 318.
4. If more than 546,487 Shares are duly tendered (and not timely withdrawn), the Fund will purchase Shares from tendering Shareholders, in accordance with the terms and subject to the conditions specified in the Offer to Purchase, on a pro rata basis in accordance with the number of Shares duly tendered by each Stockholder during the period the Offer is open (and not timely withdrawn), unless the Fund determines not to purchase any Shares. However, the Fund will accept all Shares tendered by any Shareholder who owns, beneficially or of record, an aggregate of not more than 99 Shares and who tenders all such Shares by means of the Letter of Transmittal tendered by or on behalf of that Shareholder.
5. A broker, dealer, commercial bank, trust company or other nominee may charge a fee for processing transactions on behalf of a Shareholder. Tendering Shareholders are not obligated to pay brokerage commissions or, subject to Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of Shares by the Fund pursuant to the Offer.
The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the Offer or its acceptance would violate the laws of such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of the Fund by one or more registered brokers or dealers licensed under the laws of that jurisdiction.
Should you have any other questions concerning the enclosed material, please contact your broker, dealer, commercial bank, trust company or other nominee, or call the Depositary at the number indicated in the Offer to Purchase.
Very truly yours,
EVERGREEN UTILITIES AND HIGH INCOME FUNDGUIDELINES FOR CERTIFICATION OF Guidelines for Determining the Proper Identification Number for the Payee (You) to Give the Payer.Social Security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer. All Section references are to the Internal Revenue Code of 1986, as amended. IRS is the Internal Revenue Service. |
For this type of account: | Give the name and social security number of |
For this type of account: | Give the name and employer identification number of |
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1. | Individual | The individual | 6. | Sole proprietorship | The owner3 | |||
2. | Two or more individuals (joint account) | The actual owner of the account or, if combined funds, the first individual on the account1 |
7. | A valid trust, estate, or pension trust | The legal entity4 | |||
8. | Corporate | The corporation | ||||||
9. | Association, club, religious, charitable, educational, or other tax-exempt organization |
The organization | ||||||
3. | Custodian account of a minor (Uniform Gift to Minors Act) |
The minor2 | ||||||
10. | Partnership | The partnership | ||||||
4. | a. The usual revocable savings trust (grantor is also trustee) |
The grantor-trustee1 | 11. | A broker or registered nominee | The broker or nominee |
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12. | Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments |
The public entity | ||||||
b. So-called trust account that is not a legal or valid trust under state law |
The actual owner1 | |||||||
5. | Sole proprietorship | The owner3 | ||||||
1 | List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that persons number must be furnished. |
2 | Circle the minors name and furnish the minors social security number. |
3 | You must show your individual name, but you may also enter your business or doing business as name. You may use either your social security number or your employer identification number (if you have one). |
4 | List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) |
NOTE: | If no name is circled when there is more than one name listed, the number will be considered to be that of the first name listed. |
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION Page 2 Obtaining a Number If you dont have a taxpayer identification number, obtain Form SS-5, Application for a Social Security Card at the local Social Security Administration office, or Form SS-4, Application for Employer Identification Number, by calling 1 (800) TAX-FORM, and apply for a number. Payees Exempt From Backup Withholding Payees specifically exempted from withholding include: |
| An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7) if the account satisfies the requirements of Section 401(f)(2). | |
| The United States or any of its agencies or instrumentalities. | |
| A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities. | |
| A foreign government or any of its political subdivisions, agencies or instrumentality. | |
| An international organization or any agency or instrumentality thereof. |
Payees that may be exempt from backup withholding include: |
| A corporation. | |
| A foreign central bank of issue. | |
| A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. | |
| A futures commission merchant registered with the Commodity Futures Trading Commission. | |
| A real estate investment trust. | |
| An entity registered at all times during the tax year under the Investment Company Act of 1940. | |
| A common trust fund operated by a bank under Section 584(a). | |
| A financial institution. | |
| A middleman known in the investment community as a nominee or custodian. | |
| A trust exempt from tax under Section 664 or described in Section 4947. |
Payments of dividends and patronage dividends generally exempt from backup withholding include: |
| Payments to nonresident aliens subject to withholding under Section 1441. | |
| Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident alien partner. | |
| Payments of patronage dividends not paid in money. | |
| Payments made by certain foreign organizations. | |
| Section 404(k) distributions made by an ESOP. |
Payments of interest generally exempt from backup withholding include: |
| Payments of tax-exempt interest (including exempt-interest dividends under Section 852). | |
| Payments described in Section 6049(b)(5) to nonresident aliens. | |
| Payments on tax-free covenant bonds under Section 1451. | |
| Payments made by certain foreign organizations. |
Certain payments, other than payments of interest, dividends, and patronage dividends, that are exempt from information reporting are also exempt from backup withholding. For details, see Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N and the regulations thereunder. Exempt payees should complete a substitute Form W-9 to avoid possible erroneous backup withholding. Furnish your taxpayer identification number, check the box in Part 2 on the form, sign and date the form and return it to the payer. Non-U.S. payees who are not subject to backup withholding should complete a W-8BEN and return it to the payer. Privacy Act Notice. Section 6109 requires you to provide your correct taxpayer identification number to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes and to help verify the accuracy of your return and may also provide this information to various government agencies for tax enforcement or litigation purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold at the current tax rate of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. Penalties (1) Failure to Furnish Taxpayer Identification Number. If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) Civil Penalty for False Information with Respect to Withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. (3) Criminal Penalty for Falsifying Information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. (4) Misuse of TINs. If the requester discloses or uses TINs in violation of Federal law, the requester may be subject to civil and criminal penalties. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. |
-2- |
PAYERS NAME: EquiServe LP | ||||
SUBSTITUTE Payers Request for |
Part 1 PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW |
Social Security # Employer I.D.# |
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Part 2CertificatesUnder penalties of perjury, I certify that: | ||||
(1) | The number on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me) and |
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(2) | I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding. |
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Certification InstructionsYou must cross out Item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out Item (2). |
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SIGNATURE |
Part 3 Awaiting TIN |
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NOTE: | FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY CASH PAYMENT (IF ANY) MADE TO YOU IN LIEU OF FRACTIONAL SHARES OF MOLECULAR. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. |
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. | |
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER | |
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (b) I intend to mail or deliver an application in the near future. I understand that because I have not provided a taxpayer identification number, 28% of all reportable payments made to me thereafter will be withheld until I provide a number. If I provide a properly certified taxpayer identification number within 60 days, you will refund the tax if I so request. |
|
, 20 | |
Signature | Date |
FORM OF DEPOSITARY AGREEMENT
This Depositary Agreement is entered into as of this ___ day of ____ by and between Evergreen Utilities and High Income Fund, a company organized and existing under the laws of the State of Delaware (the Company), EquiServe, Inc., a Delaware corporation and its fully owned subsidiary EquiServe Trust Company, N.A., national banking association (collectively, the Depositary or individually EQI and the Trust Company, respectively).
WHEREAS, the Company is making a tender offer (hereinafter referred to, together with any amendment or extensions thereto, as the Tender Offer) to purchase 546,487 outstanding shares of Evergreen Utilities and High Income Fund Common Stock, par value of _______ per share (the "Shares"), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 22, 2005 (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 made on March 22, 2005, and will expire at 5:00 p.m., New York City time, on April 20, 2005, 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 the Trust Company and EQI act as Depositary in connection with the Tender Offer, and that EQI acts as the paying agent, and EQI and the Trust Company have indicated their willingness to do so.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. |
Appointment of Depositary. |
The Company hereby appoints the Depositary to act as such for the purpose of receiving and making payment for, on behalf of the Company, Shares tendered pursuant to the terms of the Offer to Purchase. 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 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 or the Offer to Purchase.
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2. |
Concerning the Depositary. |
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 (Certificates) 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. The Company, however, will reserve in the Offer to Purchase 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 Offer to Purchase or any defect or irregularity in the tender of any Shares, and the Company's interpretation of the terms and conditions of the Offer to Purchase will be final.
B. All Shares must be tendered in accordance with the terms and conditions set forth in the Offer to Purchase. Payment for Shares tendered and purchased pursuant to the Offer to Purchase shall be made only after deposit with the Depositary of the certificates therefor, the Letter of Transmittal and any other required documents.
C. If the Offer to Purchase allows a tendering shareholder to withdraw Shares tendered, the Depositary shall, as promptly as possible after notification of such withdrawal, return such Shares to, or in accordance with the instruction of, such shareholder 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 ___________________, and such other persons as he/she 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, 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.
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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 guarantees of 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.
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 instructions of the Letter of Transmittal, fewer than all the Shares evidenced by any certificate submitted to the Depositary are to be tendered, the Depositary 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 shareholders who has made a partial tender of Shares deposited with the Depositary.
H. If, pursuant to the Offer to Purchase, the Company instructs the Depositary not to accept the instructions and/or Shares received from a tendering shareholder, 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 EQI.
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 and agreed upon by the Depositary;
(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;
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(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. |
A. The Company will from time to time deposit or cause to be deposited with EQI, 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 EQI then holds. The Company will deposit with the EQI or cause to be deposited with it an amount equal to 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 EQI holds. EQI 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 Offer to Purchase) of the Shares to each of the shareholders who has tendered Shares, pursuant to the instruction of such shareholders.
B. It is understood and agreed that the securities, money, assets or property to be deposited with or received by EQI from the Company shall be held solely for the benefit of the Company and shareholders tendering Shares, as their interests may appear.
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C. Funds furnished to EQI to make cash payments shall be held without interest to the Company or shareholders.
D. EQI shall arrange for the issuance of a single check for the cash payment (the Cash Payment) for all the shares of Company Common Stock to which each shareholder is entitled, unless such shareholder has attached written instructions to the contrary to his or her Letter of Transmittal.
E. EQI shall, if appropriate, deliver the Cash Payment by first class mail under the provisions of the Depositarys first class mail bond protecting the Depositary from loss or liability arising out of the non-receipt or non-delivery of such Cash Payment or arising out of the replacement thereof, for any deliveries where market value does not exceed the amount of the Depositarys first class mail bond. Any mail delivery exceeding such amount shall be delivered by registered mail or overnight mail and shall be insured separately for the replacement value of its contents at the time of mailing.
F. EQI shall pay principal cash without earnings or interest to holders of Certificates as is provided for in the Offer to Purchase.
G. EQI shall provide the Company with an estimate of the funds required to make the Cash Payments. The Company will furnish to EQI the funds estimated necessary to enable EQI to make such payments. From time to time thereafter, EQI may request additional funding to cover the Cash Payment. EQI shall have no obligation to make Cash Payments unless the Company shall have provided the necessary funds to pay in full all amounts due and payable with respect thereto. Funds furnished to make payments shall be held without interest to the Company or shareholders.
H. EQI shall prepare and file with the appropriate governmental agency and shareholder all appropriate tax information forms, including but not limited to Forms 1099B, covering dividend payments, or any other distributions made by EQI pursuant to this Agreement, to any shareholder of the Company during each calendar year, or any portion thereof, during which EQI performs services hereunder.
I. The Company acknowledges that the bank accounts maintained by EQI in connection with the services provided under this Agreement will be in its name and that EQI may receive investment earnings in connection with the investment at EQIs risk and for its benefit of funds held in those accounts from time to time.
4. |
Compensation of the Depositary by the Company. |
The Company shall pay fees for the services rendered hereunder, as set forth in the attached Fee 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.
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5. |
Indemnification/Limitation of Liability. |
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 gross negligence, bad faith, or willful misconduct.
Promptly after the receipt by the Depositary of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, 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. 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 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.
Depositary shall be responsible for and shall indemnify and hold the Company harmless from and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to Depositarys refusal or failure to comply with the terms of this Agreement, or which arise out of Depositarys negligence or willful misconduct or which arise out of the breach of any representation or warranty of Depositary hereunder, for which Depositary is not entitled to indemnification under this Agreement; provided, however, that Depositarys aggregate liability during any term of this Agreement with respect to , arising from, or in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the Company to Depositary as fees and charges, but not including reimbursable expenses, during the twelve (12) calendar months immediately preceding the event for which recovery from the Depositary is being sought
6. |
Further Assurance. |
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.
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7. |
Term and Termination. |
This Agreement shall remain in effect until (a) all checks for Cash Payments have been reported as unclaimed property to the appropriate states; (b) it is terminated by either party upon a material breach of this Agreement which remains uncured for 30 days after written notice of such breach has been provided; or (c) 30 days written notice has been provided by either party to the other. Upon termination of the Agreement, the Depositary shall retain all canceled Certificates and related documentation as required by applicable law.
8. |
Notices. |
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, telecopier or overnight courier guaranteeing next day delivery, addressed as follows:
If to the Company, to: |
If to the Depositary, to: |
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
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150 Royall Street |
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Canton, MA 02021 |
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Attn: Reorganization Department | |||||
or |
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525 Washington Boulevard |
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Jersey City, NJ 07310 |
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Attn: Reorganization Department | |||||
9. |
Escrow Agent. |
In the event that the Tender Offer does not name an escrow agent to provide escrow services in connection with the services rendered by the Depostiary under this Agreement, the Company agrees that either the Depositary shall act as escrow agent or escrow agent services shall be exclusively coordinated through the Depositary using an escrow agent appointed by the Company with the consent of the Depositary. In the event Depositary acts as escrow agent hereunder, the fees and detailed services shall be as agreed upon in writing by the parties.
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10. |
Unclaimed Property and Lost Shareholders. |
The Depositary shall report unclaimed property to each state in compliance with state laws and shall comply with Section 17Ad-17 of the Securities Exchange Act of 1934, as amended (the Exchange Act), for lost shareholders. The Depositary will charge the Company its standard fees plus out-of-pocket expenses (including the cost of due diligence mailings) for such services.
11. |
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 permitted assigns of the parties hereto.
12. |
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.
13. |
Assignment. |
A. Except as provided in Section 13(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, subcontract with other subcontractors for systems, processing, telephone and mailing services, and post-merger clean up activities, 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.
14. |
Third Party Beneficiaries. |
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 partys prior written consent.
15. |
Force Majeure. |
In the event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, terrorist acts, equipment or transmission failure or damage reasonably beyond its control, or other cause reasonably beyond its
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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 partys duties. |
16. |
Consequential Damages. |
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.
17. |
Severability. |
If any provision of this Agreement shall be held invalid, unlawful, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.
18. |
Confidentiality. |
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 including the fees for services set forth in the attached schedule shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law.
19. |
Survival. |
All provisions of Paragraphs 5, 8, 10, 11 and 15 20 shall survive any termination, for any reason, of this Agreement.
20. |
Merger of Agreement. |
This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement with respect to the subject matter hereof whether oral or written.
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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.
EQUISERVE TRUST COMPANY, N.A. |
EVERGREEN UTILITIES AND HIGH INCOME FUND |
By:_________________________ |
By:__________________________ |
Title:________________________ |
Title:_________________________ |
Date:________________________ |
Date:_________________________ |
EQUISERVE, INC.
By:_________________________
Title:_______________________
Date:_______________________
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FEE SCHEDULE
EQUISERVE TRUST COMPANY
SCHEDULE OF FEES
TO PROVIDE DEPOSITARY SERVICES
FOR
EVERGREEN UTILITIES AND HIGH INCOME FUND
A. | FEE FOR SERVICES |
$15,000.00 | Project Management Fee* | |||
$ 9.50 | Per Letter of Transmittal for registered/beneficial holders | |||
$ 12.50 | Per Letter of Transmittal withdrawal | |||
$ 12,.50 | Per Guarantee of Delivery | |||
$ 2,000.00 | Per Extension | |||
$ 2,500.00 | New York window staffing fee (for midnight expiration) | |||
$ 5,000.00 | Minimum
charge should the project be canceled for any reason prior to the mailing of the Letter of Transmittal |
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* excludes out-of-pocket expenses as described in Section C Items Not Covered |
B. |
SERVICES COVERED |
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Designating a project manager to carry out Depositary Agent duties, including document review and execution of legal agreement, review of letters of transmittal and communication materials, project management, and on-going project updates and reporting |
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Enclosing and mailing offering materials to registered shareholders |
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Requesting banks/brokers/dealers listing from the Depositary Trust Company (DTC) |
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Contacting banks/brokers/dealers to inform them of the offering and requesting the number of sets of materials they will require to distribute to their shareholders |
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Distributing requested materials to banks/brokers/dealers |
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Establishing fulfillment telephone number to be include in the prospectus and DTCs electronic notice to banks/brokers/dealers |
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Distributing additional sets of materials as requested through the fulfillment number |
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Establishing toll-free number to be include in the prospectus and DTCs electronic notice to banks/brokers/dealers to facilitate banks/brokers/dealers/shareholders telephone inquiries |
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Responding to banks/brokers/dealers/shareholders telephone and correspondence inquiries |
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Tracking and reporting the number of telephone calls received and their nature |
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Receiving, opening and processing returned LT |
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Curing defective LT, including telephoning and writing shareholders in connection with unsigned or improperly executed LT |
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Mailing proper documentation to shareholders whose certificates are alleged to have been lost, stolen, or destroyed, in order to effect the tender without certificate surrender |
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Canceling surrendered certificates |
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Tracking and reporting the number of shares submitted |
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Calculating, prorating, issuing and reconciling checks and share certifctaes |
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Issuing tax forms and filing tax information with the IRS, as required |
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Enclosing and mailing checks, Forms 1099-B, share certificates and letters or notices to shareholders at the conclusion of the Tender Offer |
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Replacing checks alleged to have been lost or destroyed |
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C. |
ITEMS NOT COVERED |
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Services associated with new duties, legislation or regulatory fiat which become effective after the date of this proposal (these will be provided on an appraisal basis) | ||
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All out-of-pocket expenses such as telephone line charges, overprinting, certificates, checks, postage, stationery, wire transfers, and excess material disposal (these will be billed as incurred) | ||
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Overtime charges assessed in the event of late delivery of material for mailings unless the target mail date is rescheduled | ||
D. |
LIMITATIONS |
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Agreement based upon document review and information known at this time about the transaction |
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Significant changes made in the terms or requirements of this transaction could require modifications to this Agreement |
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This agreement must be executed prior to the mailing of the LTs |
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Material to be mailed to shareholders must be received no less than five (5) business days prior to the start of the mailing project |
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No interest shall accrue to the shareholder or company |
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Proposal based upon 8 registered and 9,700 beneficial shareholders |
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This proposal is valid for sixty (60) days |
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This proposal is valid for futrue offerings during the 2005 calendar year |
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E. |
PAYMENT FOR SERVICES |
It is agreed that an invoice for the Project Management Fee will be rendered and payable on the effective date of the transaction. An invoice for any out-of-pockets and per item fees realized will be rendered and payable on a monthly basis, except for postage expenses in excess of $5,000. Funds for such mailing expenses must be received one (1) business day prior to the scheduled mailing date.
EQUISERVE TRUST COMPANY, N.A | EVERGREEN FUNDS, INC. | ||
By: |
By: |
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Erik Schwendenman | |||
Title: Director,
Business Development |
Title: |
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Date: |
Date: |
11
EVERGREEN LIQUIDITY PLAN: TENDER OFFER
Q&A
BACKGROUND:
As described in the Evergreen Utility and High Income Fund prospectus dated April 27, 2004, under the Enhanced Liquidity Plan, the Board is required to consider repurchasing shares in the event that the funds common shares trade at a discount to net asset value of greater than 5 percent for at least 15 out of 20 trading days during a predetermined measurement period. This tender offer is limited to 5% of the Funds outstanding shares. The plan allows shareholders to tender fund shares at their full net asset value (NAV) through this tender offer process. Shareholders must tender at least 20% of their shares. The tender offer is subject to proration if the offer is oversubscribed.
The provision is designed to give shareholders an alternative to selling fund shares at only the market price, which may be lower than the NAV.
The tender offer:
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Will take place for 8 consecutive quarters following the Funds IPO |
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Is subject to approval by the Funds Board of Trustees |
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Requires that the discount (market price relative to Fund NAV) exceeds 5% for 15 of the 20 days in the test period |
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It is important to note that the NAV that will be paid to shareholders who tender shares will be the NAV on the day following the close of the tender offer period. The tender offer for this quarter will close on April 20, 2005. This means that the NAV paid to tender offer participants will be the NAV as of the close of business on April 21, 2005. As a result, there can be no assurance of the NAV the shareholder will receive.
The Fund completed the first tender offer earlier this year. The second testing period was recently completed, with results indicating that the funds common shares traded at a discount to net asset value of greater than 5 percent for at least 15 out of 20 trading days. Subsequently, the Board of Trustees has approved a second tender offer. Please refer to the details below in addressing questions with clients.
History of the first tender offer:
Discount Test Period: October 29 November 26, 2004
Offer Period Commencement: December 20, 2004
Repurchase Deadline: January 24, 2005
Date the NAV was calculated: January 25, 2005
Total Shares Tendered: 3,799,973
Shares for Payment: 575,250
Date of Payment: January 27, 2005
FOR INTERNAL USE ONLY. NOT TO BE DISTRIBUTED OR SHOWN TO PUBLIC
Page 1 of 5
Relevant Dates for the current tender offer:
Discount Test Period: February 1 March 1, 2005
Offer Period Commencement: March 22, 2005
Repurchase Deadline: 5:00 p.m. on April 20, 2005
Date the NAV will be calculated: End of Day April 21, 2005
Press Release
Evergreen Investments issued a press release on 2/22/05 announcing that it would propose to the Board of Trustees of the Evergreen Utilities and High Income Fund (AMEX:ERH) that the fund make a tender offer to repurchase up to 5 percent of the funds outstanding shares at net asset value. A second press release, announcing the Boards approval and details of the tender offer, was distributed on 3/17/05.
Board of Trustees Approval |
The Board of Trustees of the Fund approved the tender offer in a meeting on March 17, 2005.
NAV Paid as of |
The NAV that will be paid to shareholders who properly tender shares will be the NAV on the day following the close of the tender offer period. In this case, the last day of the tender offer period will be April 20, 2005. This means that that NAV paid to tender offer participants will be the NAV as of the close of the New York Stock Exchange on April 21, 2005.
Discount Test Requirements
The discount must exceed 5% for at least 15 of the 20 days of the test period based on average volume-weighted daily price.
Who Qualifies
All Fund shareholders qualify for the tender offer. Because there is no record date for a tender offer, any shareholder can tender shares back to the Fund until the close of the tender offer period.
Shareholder Communication
Notification of the repurchase offer will be mailed to shareholders and Broker/Dealers following commencement of the tender offer period on or about March 22, 2005. The Broker/Dealers are then responsible for mailing the materials to individual shareholders. Shareholders will have 21 days to return their materials to their brokerage firm.
FOR INTERNAL USE ONLY. NOT TO BE DISTRIBUTED OR SHOWN TO PUBLIC
Page 2 of 5
10% Limitation
Evergreen had requested from the SEC the ability to limit the amount any one shareholder could receive in the tender offer process to 10% of the amount tendered by the fund. The SEC has not granted this request.
Tax Treatment of the Tender
A funds redemption of a shareholders shares is generally treated as a sale and given cap gain or loss treatment. However, when multiple shareholders are tendering shares for redemption there is a risk that the total share price of an individuals redemption could be treated for tax purposes as a dividend, if that shareholders percentage interest in the fund does not go down in connection with the redemption. To avoid dividend treatment, the redeeming shareholders percentage interest in the fund must go down.
To increase the likelihood that each tendering shareholders percentage interest in the fund will decrease in connection with the redemption, Evergreen required each shareholder who elected to participate in the tender offer to tender of at least 20% of such shareholders shares of the fund. All redemptions will be reported as sales for year-end tax reporting purposes.
Minimum Tender Amounts
Shareholders must have tendered a minimum of 20% of their shares of the fund. Shareholders with fewer than 100 shares must tender all or none of their shares.
Odd Lot Provision
If a shareholder owns and tenders fewer than 100 shares, the fund will purchase all shares tendered by that shareholder. These shareholders will not be subject to the pro rata reduction if more than 5% of the shares of the fund are tendered in the tender offer.
Commissions & Fees
Tendering shareholders will not be obligated to pay brokerage commissions in connection with their tender, but may have to pay transaction costs in accordance with the policies of their brokerage firms.
Over Subscription
The tender offer is limited to 5% of the Funds outstanding shares. Should requests exceed 5% of Fund shares, shareholder requests will be fulfilled on a pro rata basis, meaning that each shareholder will receive the same percentage amount of their request. EquiServe will conduct the proration calculation. This pro rata reduction does not apply to holders of 99 or fewer shares because those holders will have all of their shares redeemed.
FOR INTERNAL USE ONLY. NOT TO BE DISTRIBUTED OR SHOWN TO PUBLIC
Page 3 of 5
What was the proration percentage for ERHs first tender offer?
Per the press release issued at close of business on January 27, the proration percentage was 11.163%.
What did this actually mean to the shareholder?
Heres an example based on the estimated proration percentage:
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If a shareholder tendered 1000 shares, the following happened: | |||
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They received 111 shares multiplied by the NAV cut at the close of business on January 25 and received these proceeds in their brokerage account. | |||
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They had 889 shares returned to their brokerage account. | |||
What happened if a shareholder tendered fewer than 100 shares?
Any shareholder tendering less than 100 shares (odd lots) was not subject to the proration. The full number of shares tendered was cashed out.
Can the estimated number of shares and proration in the press release containing the preliminary results change?
Yes. Under certain circumstances, shares can be presented for the tender by Notice of Guaranteed Delivery which must be received by the close of the tender offer. This means that the shares were not available to be tendered at the close of the tender offer, but that the brokerage firm guarantees that they will have the shares available to be sent to EquiServe no later than 2 days after the execution of the Notice of Guaranteed Delivery which can be as late as two days after the close of the tender offer. If the brokerage firm cant produce the shares by that time, then this is not considered a proper tender and they are removed from the offer. This could change the proration percentage. The final results will be included in a press release containing definitive results.
When will the money be sent out and the shares not accepted in the tender credited back to the brokerage accounts?
We anticipate that both the cash and shares not accepted will go out through DTC 5 business days following the close of the tender offer. The exact date is contained in the Offer to Purchase.
What is Evergreens position on the first tender offer?
Evergreen believes that it was a successful tender offer, since it was conducted within the guidelines of our original prospectus and marketing material from when the fund was launched in April of 2004. We are prepared to recommend that the Board make
FOR INTERNAL USE ONLY. NOT TO BE DISTRIBUTED OR SHOWN TO PUBLIC
Page 4 of 5
additional tender offers if the criteria as stated in the prospectus is met. Evergreen does not have a position on whether shareholders should participate in any tender offer.
Additional Information
We will provide additional information about the structure of the tender offer as it becomes available and is approved for distribution.
FOR INTERNAL USE ONLY. NOT TO BE DISTRIBUTED OR SHOWN TO PUBLIC
Page 5 of 5
Exhibit (h)
[Ropes & Gray LLP Letterhead]
March 22, 2005
Evergreen Utilities and
High Income Fund
200 Berkeley Street
Boston, Massachusetts 02116
Re: | Evergreen Utilities and High Income Fund Tender Offer and Tender Offer Letter dated March 22, 2005 |
Ladies and Gentlemen:
We have acted as counsel to Evergreen Utilities and High Income Fund (the Fund) in connection with a tender offer to purchase for cash 546,487 of the Funds issued and outstanding shares (the Shares) at net asset value per share, which offer will expire at 5:00 PM Eastern time on April 20, 2005, unless the offer is extended (the Tender Offer). In that connection, we are furnishing you our opinion on certain federal income tax consequences of the sale of Shares to the Fund pursuant to the Tender Offer.
In rendering our opinion, we have examined the originals or copies, certified or otherwise identified to our satisfaction, of the Companys formal tender offer letter to be filed with the United States Securities and Exchange Commission (the SEC) on or about March 22, 2005 (the Tender Offer Letter), and made such inquiries and examined such other documents as were necessary or appropriate to enable us to render this opinion. With your permission, we have assumed that the Tender Offer will be cosnducted and the Shares purchased in accordance with the terms of the Tender Offer Letter.
Based on the foregoing, we hereby confirm that the discussion of certain United States federal income tax consequences of the sale of Shares to the Fund pursuant to the Tender Offer in section 14 of the Tender Offer Letter, entitled Certain Federal Income Tax Consequences, is materially accurate, subject to the limitations there stated.
We hereby consent to the use of our name under the caption Certain Federal Income Tax Consequences in the Tender Offer Letter. In giving this consent we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the 1933 Act, or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
Ropes & Gray LLP