Schedule 13d
| Filed by: | WESTERN INVESTMENT LLC |
| Subject Company: | NEUBERGER BERMAN DIVIDEND ADVANTAGE FUND, INC |
| Filed as of Date: | 12/29/2008 |
| View Original Filing on Edgar's | |
Exhibit
99.1
JOINT
FILING AND SOLICITATION AGREEMENT
WHEREAS,
certain of the undersigned are stockholders, direct or beneficial, of Neuberger
Berman Dividend Advantage Fund Inc., a Maryland corporation (the
“Fund”);
WHEREAS,
Western Investment LLC, a Delaware limited liability company, Arthur D. Lipson,
Western Investment Hedged Partners L.P., a Delaware limited partnership, Western
Investment Activism Partners LLC, a Delaware limited liability company, Western
Investment Total Return Partners L.P., a Delaware limited partnership, Benchmark
Plus Partners, L.L.C, a Delaware limited liability company, Benchmark Plus
Management, L.L.C., a Delaware limited liability company, Scott Franzblau,
Robert Ferguson, Gary G. Schlarbaum, William J. Roberts, Matthew S. Crouse and
Robert A. Wood wish to form a group for the purpose of seeking representation on
the Board of Directors of the Fund at the 2009 annual meeting of stockholders of
the Fund, or any other meeting of stockholders held in lieu thereof, and any
adjournments, postponements, reschedulings or continuations thereof (the “2009
Annual Meeting”) and for the purpose of taking all other action necessary to
achieve the foregoing.
NOW, IT
IS AGREED, this 29th day of December 2008 by the parties hereto:
1. In
accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), each of the undersigned (collectively, the
“Group”) agrees to the joint filing on behalf of each of them of statements on
Schedule 13D, and any amendments thereto, with respect to the securities of the
Fund. Each member of the Group shall be responsible for the accuracy
and completeness of his/its own disclosure therein, and is not responsible for
the accuracy and completeness of the information concerning the other members,
unless such member knows or has reason to know that such information is
inaccurate.
2. So
long as this agreement is in effect, each of the undersigned shall provide
written notice to Olshan Grundman Frome Rosenzweig & Wolosky LLP (“Olshan”)
of (i) any of their purchases or sales of securities of the Fund; or (ii) any
securities of the Fund over which they acquire or dispose of beneficial
ownership. Notice shall be given no later than 24 hours after each
such transaction.
3. Each
of the undersigned agrees to form the Group for the purpose of soliciting
proxies or written consents for the election of the persons nominated by the
Group to the Board of Directors of the Fund at the 2009 Annual Meeting and for
the purpose of taking all other actions incidental to the
foregoing.
4. Western
Investment LLC shall have the right to pre-approve all expenses incurred in
connection with the Group’s activities and agree to pay directly all such
pre-approved expenses.
5. Each
of the undersigned agrees that any SEC filing, press release or stockholder
communication proposed to be made or issued by the Group or any member of the
Group in connection with the Group’s activities set forth in Section 4 shall be
first approved by Western Investment LLC, or its representatives, which approval
shall not be unreasonably withheld.
6. The
relationship of the parties hereto shall be limited to carrying on the business
of the Group in accordance with the terms of this Agreement. Such
relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing
herein shall be construed to authorize any party to act as an agent for any
other party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party’s right to
purchase or sell securities of the Fund, as he/it deems appropriate, in his/its
sole discretion, provided that all such sales are made in compliance with all
applicable securities laws.
7. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, taken together, shall constitute but one and the same
instrument, which may be sufficiently evidenced by one counterpart.
8. In
the event of any dispute arising out of the provisions of this Agreement or
their investment in the Fund, the parties hereto consent and submit to the
exclusive jurisdiction of the Federal and State Courts in the State of New
York.
9. Any
party hereto may terminate his/its obligations under this Agreement on 24 hours’
written notice to all other parties, with a copy by fax to Adam Finerman at
Olshan, Fax No. (212) 451-2222.
10. Each
party acknowledges that Olshan shall act as counsel for both the Group and
Western Investment LLC and its affiliates relating to their investment in the
Fund.
11. Each
of the undersigned parties hereby agrees that this Agreement shall be filed as
an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the
Exchange Act.
2
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first above written.
|
WESTERN
INVESTMENT LLC
|
|||
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By:
|
/s/ Arthur D. Lipson | ||
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Name:
|
Arthur
D. Lipson
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||
|
Title:
|
Managing
Member
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WESTERN
INVESTMENT HEDGED PARTNERS L.P.
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By:
|
Western
Investment LLC
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||
|
General
Partner
|
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By:
|
/s/ Arthur D. Lipson | ||
|
Name:
|
Arthur
D. Lipson
|
||
|
Title:
|
Managing
Member
|
||
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WESTERN
INVESTMENT ACTIVISM PARTNERS LLC
|
|||
|
By:
|
Western
Investment LLC
|
||
|
Managing
Member
|
|||
|
By:
|
/s/ Arthur D. Lipson | ||
|
Name:
|
Arthur
D. Lipson
|
||
|
Title:
|
Managing
Member
|
||
|
WESTERN
INVESTMENT TOTAL RETURN PARTNERS L.P.
|
|||
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By:
|
Western
Investment LLC
|
||
|
General
Partner
|
|||
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By:
|
/s/ Arthur D. Lipson | ||
|
Name:
|
Arthur
D. Lipson
|
||
|
Title:
|
Managing
Member
|
||
| /s/ Arthur D. Lipson | |
|
ARTHUR
D. LIPSON
|
| /s/ Arthur D. Lipson | |
|
ARTHUR
D. LIPSON
As
Attorney-In-Fact for Matthew S.
Crouse
|
3
| /s/ Arthur D. Lipson | |
|
ARTHUR
D. LIPSON
As
Attorney-In-Fact for William J.
Roberts
|
| /s/ Arthur D. Lipson | |
|
ARTHUR
D. LIPSON
As
Attorney-In-Fact for Gary G.
Schlarbaum
|
| /s/ Arthur D. Lipson | |
|
ARTHUR
D. LIPSON
As
Attorney-In-Fact for Robert A. Wood
|
4
|
BENCHMARK
PLUS PARTNERS, L.L.C.
|
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By:
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Benchmark
Plus Management, L.L.C.
|
||
|
Managing
Member
|
|||
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By:
|
/s/ Robert Ferguson | ||
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Name:
|
Robert
Ferguson
|
||
|
Title:
|
Managing
Member
|
||
|
By:
|
|||
|
Name:
|
Scott
Franzblau
|
||
|
Title:
|
Managing
Member
|
||
|
BENCHMARK
PLUS MANAGEMENT, L.L.C.
|
|||
|
By:
|
/s/ Robert Ferguson | ||
|
Name:
|
Robert
Ferguson
|
||
|
Title:
|
Managing
Member
|
||
|
By:
|
/s/ Scott Franzblau | ||
|
Name:
|
Scott
Franzblau
|
||
|
Title:
|
Managing
Member
|
||
| /s/ Robert Ferguson | |
|
ROBERT
FERGUSON
|
| /s/ Scott Franzblau | |
|
SCOTT
FRANZBLAU
|
5
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