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MERGER AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
THE LATIN AMERICA EQUITY FUND, INC.
AND
THE LATIN AMERICA INVESTMENT FUND, INC.
DATED AS OF JULY 31, 2000
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TABLE OF CONTENTS
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1. DEFINITIONS..................................................................................................1
2. BASIC TRANSACTION............................................................................................1
2.1. The Merger...........................................................................................1
2.2. Actions at Closing...................................................................................2
2.3. Effect of Merger.....................................................................................2
2.4. Name Change..........................................................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE LATIN AMERICA EQUITY FUND, INC.........................................2
3.1. Organization.........................................................................................2
3.2. Registrations and Qualifications.....................................................................2
3.3. Regulatory Consents and Approvals....................................................................3
3.4. Noncontravention.....................................................................................3
3.5. Financial Statements.................................................................................3
3.6. Annual Report........................................................................................3
3.7. Qualification, Corporate Power, Authorization of Transaction.........................................3
3.8. Legal Compliance.....................................................................................4
3.9. Material Contracts...................................................................................4
3.10. Undisclosed Liabilities..............................................................................4
3.11. Tax Filings..........................................................................................4
3.12. Qualification under Subchapter M.....................................................................4
3.13. Form N-14 and Exemptive Application..................................................................5
3.14. Capitalization.......................................................................................5
3.15. Books and Records....................................................................................5
4. REPRESENTATIONS AND WARRANTIES OF THE LATIN AMERICA INVESTMENT FUND, INC.....................................6
4.1. Organization.........................................................................................6
4.2. Registrations and Qualifications.....................................................................6
4.3. Regulatory Consents and Approvals....................................................................6
4.4. Noncontravention.....................................................................................6
4.5. Financial Statements.................................................................................6
4.6. Annual Report........................................................................................7
4.7. Qualification, Corporate Power, Authorization of Transaction.........................................7
4.8. Legal Compliance.....................................................................................7
4.9. Material Contracts...................................................................................7
4.10. Undisclosed Liabilities..............................................................................7
4.11. Tax Filings..........................................................................................8
4.12. Qualification under Subchapter M.....................................................................8
4.13. Form N-14 and Exemptive Application..................................................................8
4.14. Capitalization.......................................................................................8
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4.15. Issuance of Stock....................................................................................9
4.16. Books and Records....................................................................................9
5. CONVERSION TO LATIN AMERICA INVESTMENT FUND, INC. COMMON STOCK...............................................9
5.1. Conversion...........................................................................................9
5.2. Computation of Net Asset Value.......................................................................9
5.3. Issuance of Latin America Investment Fund, Inc. Common Stock........................................10
5.4. Surrender of Latin America Equity Fund, Inc. Stock Certificates.....................................10
6. COVENANTS OF THE PARTIES....................................................................................10
6.1. Shareholders' Meetings..............................................................................10
6.2. Operations in the Normal Course.....................................................................11
6.3. Articles of Merger..................................................................................11
6.4. Regulatory Filings..................................................................................11
6.5. Preservation of Assets..............................................................................11
6.6. Tax Matters.........................................................................................11
6.7. Shareholder List....................................................................................12
6.8. Delisting, Termination of Registration as an Investment Company.....................................12
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE LATIN AMERICA INVESTMENT, INC. FUND..............................12
7.1. Approval of Merger..................................................................................12
7.2. Certificates and Statements by the Latin America Equity Fund, Inc...................................13
7.3. Absence of Litigation...............................................................................13
7.4. Legal Opinions......................................................................................13
7.5. Auditor's Consent and Certification.................................................................15
7.6. Liabilities.........................................................................................15
7.7. Effectiveness of N-14 Registration Statement........................................................16
7.8. Approval of Exemptive Application; Regulatory Filings...............................................16
7.9. Administrative Rulings, Proceedings.................................................................16
7.10. Satisfaction of the Latin America Investment Fund, Inc..............................................16
7.11. Dividends...........................................................................................16
7.12. Custodian's Certificate.............................................................................16
7.13. Books and Records...................................................................................16
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE LATIN AMERICA EQUITY FUND, INC...............................17
8.1. Approval of Merger..................................................................................17
8.2. Certificates and Statements by the Latin America Investment Fund, Inc...............................17
8.3. Absence of Litigation...............................................................................18
8.4. Legal Opinions......................................................................................18
8.5. Auditor's Consent and Certification.................................................................19
8.6. Effectiveness of N-14 Registration Statement........................................................20
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8.7. Approval of Exemptive Application; Regulatory Filings...............................................20
8.8. Satisfaction of the Latin America Equity Fund, Inc..................................................20
8.9. Dividends...........................................................................................20
9. PAYMENT OF EXPENSES.........................................................................................21
9.1. Allocation..........................................................................................21
10. COOPERATION FOLLOWING EFFECTIVE DATE........................................................................21
11. INDEMNIFICATION.............................................................................................21
11.1. The Latin America Equity Fund, Inc..................................................................21
11.2. The Latin America Investment Fund, Inc..............................................................21
12. TERMINATION, POSTPONEMENT AND WAIVERS.......................................................................22
12.1. Termination.........................................................................................22
12.2. Waiver..............................................................................................22
12.3. Expiration of Representations and Warranties........................................................22
13. MISCELLANEOUS...............................................................................................23
13.1. Transfer Restriction................................................................................23
13.2. Material Provisions.................................................................................23
13.3. Notices.............................................................................................23
13.4. Amendments..........................................................................................25
13.5. Headings............................................................................................25
13.6. Counterparts........................................................................................25
13.7. Enforceability......................................................................................25
13.8. Successors and Assigns..............................................................................25
13.9. Governing Law.......................................................................................25
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THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION (the
"Agreement") is made as of this 31st day of July, 2000, between The Latin
America Equity Fund, Inc. (the "Target Fund" or the "Latin America Equity
Fund"), a Maryland corporation and a registered investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and The Latin
America Investment Fund, Inc. (the "Acquiring Fund" or the "Latin America
Investment Fund"), a Maryland corporation and a registered investment company
under the 1940 Act.
This agreement contemplates a tax-free merger transaction
which qualifies for federal income tax purposes as a reorganization within the
meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended
(the "Code").
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth, the Parties hereto agree as follows:
1. DEFINITIONS
Certain capitalized terms used in this Agreement are
specifically defined herein.
2. BASIC TRANSACTION
2.1. THE MERGER. On and subject to the terms and conditions of this
Agreement, the Target Fund will merge with and into the Acquiring Fund
(the "Merger") at the Effective Date (as defined in Section 2.3 below)
in accordance with the Maryland General Corporation Law ("MGCL"). The
Latin America Investment Fund shall be the surviving investment
company. The Latin America Equity Fund shall cease to exist as a
separate investment company.
Each share of the Latin America Equity Fund will be
converted into an equivalent dollar amount (to the nearest one
ten-thousandth of one cent) of full shares of Common Stock of the
Latin America Investment Fund, with a par value of $0.001 per share,
based on the net asset value per share of each of the Parties at 4:00
p.m. Eastern Time on the Business Day prior to the Effective Date (the
"Valuation Time"). No fractional shares of the Latin America
Investment Fund will be issued to Latin America Equity Fund
shareholders. In lieu thereof, the Latin America Investment Fund's
transfer agent will aggregate all fractional shares of the Latin
America Investment Fund and sell the resulting full shares on the New
York Stock Exchange ("NYSE") at the current market price for shares of
the Latin America Investment Fund for the account of all holders of
fractional interests, and each such holder will receive such holder's
pro rata share of the proceeds of such sale, without interest, upon
surrender of such holder's Latin America Equity Fund Common Stock
certificates pursuant to Article 5 below. The Effective Date and the
Business Day prior to it must each be a day on which the NYSE is open
for trading (a "Business Day").
From and after the Effective Date, the Acquiring
Company shall possess all of the properties, assets, rights,
privileges, powers and shall be subject to all of the restrictions,
liabilities, obligations, disabilities and duties of the Latin America
Equity Fund, all as provided under Maryland law.
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2.2. ACTIONS AT CLOSING. At the closing of the transactions contemplated by
this Agreement (the "Closing") on the date thereof (the "Closing
Date"), (i) the Latin America Equity Fund will deliver to the Latin
America Investment Fund the various certificates and documents
referred to in Article 7 below, (ii) the Latin America Investment Fund
will deliver to the Latin America Equity Fund the various certificates
and documents referred to in Article 8 below, and (iii) the Latin
America Equity Fund and the Latin America Investment Fund will file
jointly with the State Department of Assessments and Taxation of
Maryland (the "Department") articles of merger (the "Articles of
Merger") and make all other filings or recordings required by Maryland
law in connection with the Merger.
2.3. EFFECT OF MERGER. Subject to the requisite approvals of the
shareholders of the Parties, and to the other terms and conditions
described herein, the Merger shall become effective at such time as
the Articles of Merger are accepted for record by the Department or at
such later time as is specified in the Articles of Merger (the
"Effective Date") and the separate corporate existence of the Latin
America Equity Fund shall cease. As promptly as practicable after the
Merger, the Latin America Equity Fund shall delist its shares from the
NYSE and its registration under the 1940 Act shall be terminated. Any
reporting responsibility of the Latin America Equity Fund is, and
shall remain, the responsibility of the Latin America Equity Fund up
to and including the Effective Date.
2.4. NAME CHANGE. Upon the Effective Date, the name of the Acquiring Fund
shall be changed to "The Latin America Equity Fund, Inc."
3. REPRESENTATIONS AND WARRANTIES OF THE LATIN AMERICA EQUITY FUND, INC.
The Latin America Equity Fund represents and
warrants to the Latin America Investment Fund that the statements
contained in this Article 3 are correct and complete in all material
respects as of the execution of this Agreement on the date hereof. The
Latin America Equity Fund represents and warrants to, and agrees with,
the Latin America Investment Fund that:
3.1. ORGANIZATION. The Latin America Equity Fund is a corporation duly
organized, validly existing under the laws of the State of Maryland
and is in good standing with the Department, and has the power to own
all of its assets and to carry on its business as it is now being
conducted and to carry out this Agreement.
3.2. REGISTRATIONS AND QUALIFICATIONS. The Latin America Equity Fund is
duly registered under the 1940 Act as a closed-end, non-diversified
management investment company (File No. 811-06413), and such
registration has not been revoked or rescinded and is in full force
and effect. The Latin America Equity Fund has elected and qualified
for the special tax treatment afforded regulated investment companies
("RICs") under Sections 851-855 of the Code at all times since its
inception. The Latin America Equity Fund is qualified as a foreign
corporation in every jurisdiction where required, except to the extent
that failure to so qualify would not have a material adverse effect on
the Latin America Equity Fund.
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3.3. REGULATORY CONSENTS AND APPROVALS. No consent, approval,
authorization, or order of any court or governmental authority is
required for the consummation by the Latin America Equity Fund of the
transactions contemplated herein, except (i) such as have been
obtained or applied for under the Securities Act of 1933, as amended
(the "1933 Act"), the Securities Exchange Act of 1934 (the "1934
Act"), and the 1940 Act, (ii) such as may be required by state
securities laws and (iii) such as may be required under Maryland law
for the acceptance for record of the Articles of Merger by the
Department.
3.4. NONCONTRAVENTION. The Latin America Equity Fund is not, and the
execution, delivery and performance of this Agreement by the Latin
America Equity Fund will not result, in violation of the laws of the
State of Maryland or of the Articles of Incorporation or the By-laws
of the Latin America Equity Fund, or of any material agreement,
indenture, instrument, contract, lease or other undertaking to which
the Latin America Equity Fund is a party or by which it is bound, and
the execution, delivery and performance of this Agreement by the Latin
America Equity Fund will not result in the acceleration of any
obligation, or the imposition of any penalty, under any agreement,
indenture, instrument, contract, lease, judgment or decree to which
the Latin America Equity Fund is a party or by which it is bound.
3.5. FINANCIAL STATEMENTS. The Latin America Investment Fund has been
furnished with a statement of assets, liabilities and capital and a
schedule of investments of the Latin America Equity Fund, each as of
December 31, 1999, said financial statements having been examined by
PricewaterhouseCoopers LLP, independent public accountants. These
financial statements are in accordance with generally accepted
accounting principles applied on a consistent basis ("GAAP") and
present fairly, in all material respects, the financial position of
the Latin America Equity Fund as of such date in accordance with GAAP,
and there are no known contingent liabilities of the Latin America
Equity Fund required to be reflected on a balance sheet (including the
notes thereto) in accordance with GAAP as of such date not disclosed
therein.
The Latin America Investment Fund has been furnished with an unaudited
statement of assets, liabilities and capital and a schedule of
investments of the Latin America Equity Fund, each as of June 30,
2000. This financial statement and the schedule of investments are in
accordance with GAAP and present fairly, in all material respects, the
financial position of the Latin America Equity Fund as of such date in
accordance with GAAP, and there are no known contingent liabilities of
the Latin America Equity Fund required to be reflected on a balance
sheet (including the notes thereto) in accordance with GAAP as of such
date not disclosed therein.
3.6. ANNUAL REPORT. The Latin America Investment Fund has been furnished
with the Latin America Equity Fund's Annual Report to Shareholders for
the year ended December 31, 1999.
3.7. QUALIFICATION, CORPORATE POWER, AUTHORIZATION OF TRANSACTION. The
Latin America Equity Fund has full power and authority to enter into
and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement has been duly authorized by
all necessary action of its Board of Directors, and, subject to
shareholder approval, this Agreement constitutes a valid and binding
contract enforceable in accordance with its terms, subject to the
effects of
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bankruptcy, insolvency, moratorium, fraudulent conveyance and similar
laws relating to or affecting creditors' rights generally and court
decisions with respect thereto.
3.8. LEGAL COMPLIANCE. No material litigation or administrative proceeding
or investigation of or before any court or governmental body is
presently pending (in which service of process has been received) or
to its knowledge threatened against the Latin America Equity Fund or
any properties or assets held by it. The Latin America Equity Fund
knows of no facts which might form the basis for the institution of
such proceedings which would materially and adversely affect its
business and is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body which
materially and adversely affects its business or its ability to
consummate the transactions herein contemplated.
3.9. MATERIAL CONTRACTS. There are no material contracts outstanding to
which the Latin America Equity Fund is a party that have not been
disclosed in the N-14 Registration Statement (as defined in Section
3.13 below) or will not be otherwise disclosed to the Latin America
Investment Fund prior to the Effective Date.
3.10. UNDISCLOSED LIABILITIES. Since December 31, 1999, there has not been
any material adverse change in the Latin America Equity Fund's
financial condition, assets, liabilities or business and the Latin
America Equity Fund has no known liabilities of a material amount,
contingent or otherwise, required to be disclosed in a balance sheet
in accordance with GAAP other than those shown on the Latin America
Equity Fund's statements of assets, liabilities and capital referred
to above, those incurred in the ordinary course of its business as an
investment company since January 1, 2000, and those incurred in
connection with the Merger. Prior to the Effective Date, the Latin
America Equity Fund will advise the Latin America Investment Fund in
writing of all known liabilities, contingent or otherwise, whether or
not incurred in the ordinary course of business, existing or accrued.
For purposes of this Section 3.10, a decline in net asset value per
share of the Latin America Equity Fund due to declines in market
values of securities in the Latin America Equity Fund's portfolio or
the discharge of Latin America Equity Fund liabilities will not
constitute a material adverse change.
3.11. TAX FILINGS. All federal and other tax returns and information reports
of the Latin America Equity Fund required by law to have been filed
shall have been filed and are or will be correct in all material
respects, and all federal and other taxes shown as due or required to
be shown as due on said returns and reports shall have been paid or
provision shall have been made for the payment thereof, and, to the
best of the Latin America Equity Fund's knowledge, no such return is
currently under audit and no assessment has been asserted with respect
to such returns. All tax liabilities of the Latin America Equity Fund
have been adequately provided for on its books, and no tax deficiency
or liability of the Latin America Equity Fund has been asserted and no
question with respect thereto has been raised by the Internal Revenue
Service or by any state or local tax authority for taxes in excess of
those already paid, up to and including the taxable year in which the
Effective Date occurs.
3.12. QUALIFICATION UNDER SUBCHAPTER M. For each taxable year of its
operation (including the taxable year ending on the Effective Date),
the Latin America Equity Fund has met the requirements of
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Subchapter M of the Code for qualification as a RIC and has elected to
be treated as such, has been eligible to and has computed its federal
income tax under Section 852 of the Code, and will have distributed
substantially all of its investment company taxable income and net
realized capital gain (as defined in the Code) that has accrued
through the Effective Date.
3.13 FORM N-14 AND EXEMPTIVE APPLICATION. The exemptive application to be
filed with the Securities and Exchange Commission (the "SEC") by the
Parties regarding the Merger (the "Exemptive Application") and the
registration statement to be filed by the Latin America Investment
Fund on Form N-14 relating to the Latin America Investment Fund Common
Stock to be issued pursuant to this Agreement, and any supplement or
amendment thereto or to the documents therein (as amended, the "N-14
Registration Statement"), on the effective date of the N-14
Registration Statement, at the time of the shareholders' meetings
referred to in Article 6 of this Agreement and at the Effective Date,
insofar as it relates to the Latin America Equity Fund (i) shall have
complied or will comply in all material respects with the provisions
of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and the prospectus included therein did not or
will not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the representations and warranties in this
Section 3.13 shall only apply to statements in, or omissions from, the
N-14 Registration Statement made in reliance upon and in conformity
with information furnished by the Latin America Investment Fund for
use in the N-14 Registration Statement.
3.14 CAPITALIZATION.
(a) All issued and outstanding shares of the Latin America Equity
Fund (i) have been offered and sold in compliance in all
material respects with applicable registration requirements of
the 1933 Act and state securities laws, (ii) are, and on the
Effective Date will be, duly and validly issued and
outstanding, fully paid and non-assessable, and (iii) will be
held at the time of the Closing by the persons and in the
amounts set forth in the records of the transfer agent as
provided in Section 6.7. The Latin America Equity Fund does
not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Latin America Equity Fund
shares, nor is there outstanding any security convertible
into, or exchangeable for, any of the Latin America Equity
Fund shares.
(b) The Latin America Equity Fund is authorized to issue
100,000,000 shares of stock, par value $0.001 per share, all
of which shares are classified as Common Stock and each
outstanding share of which is fully paid, non-assessable and
has full voting rights.
3.15 BOOKS AND RECORDS. The books and records of the Latin America Equity
Fund made available to the Latin America Investment Fund are
substantially true and correct and contain no material misstatements
or omissions with respect to the operations of the Latin America
Equity Fund.
4. REPRESENTATIONS AND WARRANTIES OF THE LATIN AMERICA INVESTMENT
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FUND, INC.
The Latin America Investment Fund represents and
warrants to the Latin America Equity Fund that the statements
contained in this Article 4 are correct and complete in all material
respects as of the execution of this Agreement on the date hereof. The
Latin America Investment Fund represents and warrants to, and agrees
with, the Latin America Equity Fund that:
4.1. ORGANIZATION. The Latin America Investment Fund is a corporation duly
organized, validly existing under the laws of the State of Maryland
and is in good standing with the Department, and has the power to own
all of its assets and to carry on its business as it is now being
conducted and to carry out this Agreement.
4.2. REGISTRATIONS AND QUALIFICATIONS. The Latin America Investment Fund is
duly registered under the 1940 Act as a closed-end, non-diversified
management investment company (File No. 811-06094) and such
registration has not been revoked or rescinded and is in full force
and effect. The Latin America Investment Fund has elected and
qualified for the special tax treatment afforded RICs under Sections
851-855 of the Code at all times since its inception. The Latin
America Investment Fund is qualified as a foreign corporation in every
jurisdiction where required, except to the extent that failure to so
qualify would not have a material adverse effect on the Latin America
Investment Fund.
4.3. REGULATORY CONSENTS AND APPROVALS. No consent, approval,
authorization, or order of any court or governmental authority is
required for the consummation by the Latin America Investment Fund of
the transactions contemplated herein, except (i) such as have been
obtained or applied for under the 1933 Act, the 1934 Act and the 1940
Act, (ii) such as may be required by state securities laws and (iii)
such as may be required under Maryland law for the acceptance for
record of the Articles of Merger by the Department.
4.4. NONCONTRAVENTION. The Latin America Investment Fund is not, and the
execution, delivery and performance of this Agreement by the Latin
America Investment Fund will not result, in violation of the laws of
the State of Maryland or of the Articles of Incorporation or the
By-laws of the Latin America Investment Fund, or of any material
agreement, indenture, instrument, contract, lease or other undertaking
to which the Latin America Investment Fund is a party or by which it
is bound, and the execution, delivery and performance of this
Agreement by the Latin America Investment Fund will not result in the
acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Latin America Investment Fund is a party or by
which it is bound.
4.5. FINANCIAL STATEMENTS. The Latin America Equity Fund has been furnished
with a statement of assets, liabilities and capital and a schedule of
investments of the Latin America Investment Fund, each as of December
31, 1999, said financial statements having been examined by
PricewaterhouseCoopers LLP, independent public accountants. These
financial statements are in accordance with GAAP and present fairly,
in all material respects, the financial position of the Latin America
Investment Fund as of such date in accordance with GAAP, and there are
no
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known contingent liabilities of the Latin America Investment Fund
required to be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of such date not disclosed therein.
The Latin America Equity Fund has been furnished
with an unaudited statement of assets, liabilities and capital and a
schedule of investments of the Latin America Investment Fund, each as
of June 30, 2000. This financial statement and schedule of investments
are in accordance with GAAP and present fairly, in all material
respects the financial position of the Latin America Investment Fund
as of such date in accordance with GAAP, and there are no known
contingent liabilities of the Latin America Investment Fund required
to be reflected on a balance sheet (including the notes thereto) in
accordance with GAAP as of such date not disclosed therein.
4.6. ANNUAL REPORT. The Latin America Equity Fund has been furnished with
the Latin America Investment Fund's Annual Report to Shareholders for
the year ended December 31, 1999.
4.7. QUALIFICATION, CORPORATE POWER, AUTHORIZATION OF TRANSACTION. The
Latin America Investment Fund has full power and authority to enter
into and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement has been duly authorized by
all necessary action of its Board of Directors, and, subject to
shareholder approval, this Agreement constitutes a valid and binding
contract enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, moratorium, fraudulent conveyance
and similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto.
4.8. LEGAL COMPLIANCE. No material litigation or administrative proceeding
or investigation of or before any court or governmental body is
presently pending or to its knowledge threatened against the Latin
America Investment Fund or any properties or assets held by it. The
Latin America Investment Fund knows of no facts which might form the
basis for the institution of such proceedings which would materially
and adversely affect its business and is not a party to or subject to
the provisions of any order, decree or judgment of any court or
governmental body which materially and adversely affects its business
or its ability to consummate the transactions herein contemplated.
4.9. MATERIAL CONTRACTS. There are no material contracts outstanding to
which the Latin America Investment Fund is a party that have not been
disclosed in the N-14 Registration Statement or will not be otherwise
disclosed to the Latin America Equity Fund prior to the Effective Date.
4.10. UNDISCLOSED LIABILITIES. Since December 31, 1999, there has not been
any material adverse change in the Latin America Investment Fund's
financial condition, assets, liabilities, or business and the Latin
America Investment Fund has no known liabilities of a material amount,
contingent or otherwise, required to be disclosed in a balance sheet
with GAAP other than those shown on the Latin America Investment
Fund's statements of assets, liabilities and capital referred to
above, those incurred in the ordinary course of its business as an
investment company since January 1, 2000, and those incurred in
connection with the Merger. Prior to the Effective Date, the Latin
America Investment Fund will advise the Latin America Equity Fund in
writing of
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known liabilities, contingent or otherwise, whether or not incurred in
the ordinary course of business, existing or accrued. For purposes of
this Section 4.10, a decline in net asset value per share of the Latin
America Investment Fund due to declines in market values of securities
in the Latin America Investment Fund's portfolio or the discharge of
the Latin America Investment Fund liabilities will not constitute a
material adverse change.
4.11. TAX FILINGS. All federal and other tax returns and information reports
of the Latin America Investment Fund required by law to have been
filed shall have been filed and are or will be correct in all material
respects, and all federal and other taxes shown as due or required to
be shown as due on said returns and reports shall have been paid or
provision shall have been made for the payment thereof, and, to the
best of the Latin America Investment Fund's knowledge, no such return
is currently under audit and no assessment has been asserted with
respect to such returns. All tax liabilities of the Latin America
Investment Fund have been adequately provided for on its books, and no
tax deficiency or liability of the Latin America Investment Fund has
been asserted and no question with respect thereto has been raised by
the Internal Revenue Service or by any state or local tax authority
for taxes in excess of those already paid, up to and including the
taxable year in which the Effective Date occurs.
4.12. QUALIFICATION UNDER SUBCHAPTER M. For each taxable year of its
operation, the Latin America Investment Fund has met the requirements
of Subchapter M of the Code for qualification as a RIC and has elected
to be treated as such, has been eligible to and has computed its
federal income tax under Section 852 of the Code, and will have
distributed substantially all of its investment company taxable income
and net realized capital gain (as defined in the Code) that has
accrued through the Effective Date.
4.13. FORM N-14 AND EXEMPTIVE APPLICATION. The Exemptive Application, and
the N-14 Registration Statement, on the effective date of the N-14
Registration Statement, at the time of the shareholders' meetings
referred to in Section 6 of this Agreement and at the Effective Date,
insofar as it relates to the Latin America Investment Fund (i) shall
have complied or will comply in all material respects with the
provisions of the 1933 Act, the 1934 Act and the 1940 Act and the
rules and regulations thereunder and (ii) did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; and the prospectus included therein did not or
will not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the representations and warranties in this
Section 4.13 shall not apply to statements in, or omissions from, the
N-14 Registration Statement made in reliance upon and in conformity
with information furnished by the Latin America Equity Fund for use in
the N-14 Registration Statement.
4.14. CAPITALIZATION.
(a) All issued and outstanding shares of the Latin America
Investment Fund (i) have been offered and sold in compliance
in all material respects with applicable registration
requirements of the 1933 Act and state securities laws, (ii)
are, and on the Effective Date will be, duly and validly
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issued and outstanding, fully paid and non-assessable, and
(iii) will be held at the time of the Closing by the persons
and in the amounts set forth in the records of the transfer
agent. The Latin America Investment Fund does not have
outstanding any options, warrants or other rights to subscribe
for or purchase any of the Latin America Investment Fund
shares, nor is there outstanding any security convertible
into, or exchangeable for, any of the Latin America Investment
Fund shares.
(b) The Latin America Investment Fund is authorized to issue
100,000,000 shares of stock, par value $0.001 per share, all
of which shares are classified as Common Stock and each
outstanding share of which is fully paid, non-assessable and
has full voting rights.
4.15 ISSUANCE OF STOCK.
(a) The offer and sale of the shares to be issued pursuant to this
Agreement will be in compliance with all applicable federal
and state securities laws.
(b) At or prior to the Effective Date, the Latin America
Investment Fund will have obtained any and all regulatory,
director and shareholder approvals necessary to issue the
Latin America Investment Fund Common Stock.
4.16. BOOKS AND RECORDS. The books and records of the Latin America
Investment Fund made available to the Latin America Equity Fund are
substantially true and correct and contain no material misstatements
or omissions with respect to the operations of the Latin America
Investment Fund.
5. CONVERSION TO LATIN AMERICA INVESTMENT FUND, INC. COMMON STOCK
5.1. CONVERSION.
(a) Subject to the requisite approval of the shareholders of the
Parties, and the other terms and conditions contained herein,
at the Effective Date, each share of Common Stock of the Latin
America Equity Fund will be converted into an equivalent
dollar amount (to the nearest one ten-thousandth of one cent)
of full shares of Latin America Investment Fund Common Stock,
computed based on the net asset value per share of each of the
Parties at the Valuation Time.
(b) No fractional shares of the Latin America Investment Fund will
be issued to Latin America Equity Fund shareholders. In lieu
thereof, the Latin America Investment Fund's transfer agent
will aggregate all fractional shares of the Latin America
Investment Fund and sell the resulting full shares on the NYSE
at the current market price for shares of the Latin America
Investment Fund for the account of all holders of fractional
interests, and each such holder will receive such holder's pro
rata share of the proceeds of such sale, without interest,
upon surrender of such holder's Latin America Equity Fund
Common Stock certificates.
5.2 COMPUTATION OF NET ASSET VALUE. The net asset value per share of the
Parties shall be determined as of the Valuation Time, and no formula
will be used to adjust the net asset value so determined of either of
the Parties to take into account differences in realized and
unrealized gains and
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losses. The value of the assets of the Latin America Equity Fund to be
transferred to the Latin America Investment Fund shall be determined
by the Latin America Investment Fund pursuant to the principles and
procedures consistently utilized by the Latin America Investment Fund
in valuing its own assets and determining its own liabilities for
purposes of the Merger, which principles and procedures are
substantially similar to those employed by the Latin America Equity
Fund when valuing its own assets and determining its own liabilities.
Such valuation and determination shall be made by the Latin America
Investment Fund in cooperation with the Latin America Equity Fund and
shall be confirmed in writing by the Latin America Investment Fund to
the Latin America Equity Fund. The net asset value per share of Latin
America Investment Fund Common Stock shall be determined in accordance
with such procedures, and the Latin America Investment Fund shall
certify the computations involved.
5.3. ISSUANCE OF LATIN AMERICA INVESTMENT FUND, INC. COMMON STOCK. The
Latin America Investment Fund shall issue to the shareholders of the
Latin America Equity Fund separate certificates or share deposit
receipts for the Latin America Investment Fund Common Stock by
delivering the certificates or share deposit receipts evidencing
ownership of the Latin America Investment Fund Common Stock to Fleet
National Bank c/o EquiServe, L.P., as the transfer agent and registrar
for the Latin America Investment Fund Common Stock.
5.4. SURRENDER OF LATIN AMERICA EQUITY FUND, INC. STOCK CERTIFICATES. With
respect to any Latin America Equity Fund shareholder holding
certificates representing shares of the Common Stock of the Latin
America Equity Fund as of the Effective Date, and subject to the Latin
America Investment Fund being informed thereof in writing by the Latin
America Equity Fund, the Latin America Investment Fund will not permit
such shareholder to receive new certificates evidencing ownership of
the Latin America Investment Fund Common Stock until such shareholder
has surrendered his or her outstanding certificates evidencing
ownership of the Common Stock of the Latin America Equity Fund or, in
the event of lost certificates, posted adequate bond. The Latin
America Equity Fund will request its shareholders to surrender their
outstanding certificates representing certificates of the Common Stock
of the Latin America Equity Fund or post adequate bond therefor.
Dividends payable to holders of record of shares of the Latin America
Equity Fund as of any date after the Effective Date and prior to the
exchange of certificates by any shareholder of the Latin America
Equity Fund shall be paid to such shareholder, without interest;
however, such dividends shall not be paid unless and until such
shareholder surrenders his or her stock certificates of the Latin
America Equity Fund for exchange.
6. COVENANTS OF THE PARTIES
6.1. SHAREHOLDERS' MEETINGS.
(a) Each of the Parties shall hold a meeting of its respective
shareholders for the purpose of considering the Merger as
described herein, which meeting has been called by each Party
for September 15, 2000, and any adjournments thereof.
(b) Each of the Parties agrees to mail to each of its respective
shareholders of record entitled to vote at the meeting of
shareholders at which action is to be considered regarding the
Merger, in
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sufficient time to comply with requirements as to notice
thereof, a combined Proxy Statement and Prospectus which
complies in all material respects with the applicable
provisions of Section 14(a) of the 1934 Act and Section 20(a)
of the 1940 Act, and the rules and regulations, respectively,
thereunder.
6.2. OPERATIONS IN THE NORMAL COURSE. Each Party covenants to operate its
business in the ordinary course between the date hereof and the
Effective Date, it being understood that such ordinary course of
business will include (i) the declaration and payment of customary
dividends and other distributions and (ii) in the case of the Latin
America Equity Fund, preparing for its deregistration, except that the
distribution of dividends pursuant to Sections 7.11 and 8.9 of this
Agreement shall not be deemed to constitute a breach of the provisions
of this Section 6.2.
6.3. ARTICLES OF MERGER. The Parties agree that, as soon as practicable
after satisfaction of all conditions to the Merger, they will jointly
file executed Articles of Merger with the Department and make all
other filings or recordings required by Maryland law in connection
with the Merger.
6.4. REGULATORY FILINGS.
(a) The Latin America Equity Fund undertakes that, if the Merger
is consummated, it will file, or cause its agents to file, an
application pursuant to Section 8(f) of the 1940 Act for an
order declaring that the Latin America Equity Fund has ceased
to a registered investment company.
(b) The Latin America Investment Fund will file the N-14
Registration Statement with the SEC and will use its best
efforts to ensure that the N-14 Registration Statement becomes
effective as promptly as practicable. The Latin America Equity
Fund agrees to cooperate fully with the Latin America
Investment Fund, and will furnish to the Latin America
Investment Fund the information relating to itself to be set
forth in the N-14 Registration Statement as required by the
1933 Act, the 1934 Act, the 1940 Act, and the rules and
regulations thereunder and the state securities or blue sky
laws.
(c) The Parties each agree to proceed as promptly as possible to
cause to be made the necessary filings under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR
Filing") if applicable, with respect to the transactions
contemplated by this Agreement and to ensure that the related
waiting period expires or is otherwise terminated at the
earliest possible time.
6.5. PRESERVATION OF ASSETS. The Latin America Investment Fund agrees that
it has no plan or intention to sell or otherwise dispose of the assets
of the Latin America Equity Fund to be acquired in the Merger, except
for dispositions made in the ordinary course of business.
6.6. TAX MATTERS. Each of the Parties agrees that by the Effective Date all
of its federal and other tax returns and reports required to be filed
on or before such date shall have been filed and all taxes shown as
due on said returns either have been paid or adequate liability
reserves have been provided for the payment of such taxes. In
connection with this covenant, the Parties agree to cooperate with
each other in filing any tax return, amended return or claim for
refund, determining a liability for taxes or a right to a refund of
taxes or participating in or conducting any audit or other proceeding
in respect of taxes. The Latin America Investment Fund agrees to
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<PAGE>
retain for a period of ten (10) years following the Effective Date all
returns, schedules and work papers and all material records or other
documents relating to tax matters of the Latin America Equity Fund for
its final taxable year and for all prior taxable periods. Any
information obtained under this Section 6.6 shall be kept confidential
except as otherwise may be necessary in connection with the filing of
returns or claims for refund or in conducting an audit or other
proceeding. After the Effective Date, the Latin America Investment
Fund shall prepare, or cause its agents to prepare, any federal, state
or local tax returns, including any Forms 1099, required to be filed
and provided to required persons by the Latin America Equity Fund with
respect to its final taxable years ending with the Effective Date and
for any prior periods or taxable years for which the due date for such
return has not passed as of the Effective Date and further shall cause
such tax returns and Forms 1099 to be duly filed with the appropriate
taxing authorities and provided to required persons. Notwithstanding
the aforementioned provisions of this Section 6.6, any expenses
incurred by the Latin America Investment Fund (other than for payment
of taxes) in excess of any accrual for such expenses by the Latin
America Equity Fund in connection with the preparation and filing of
said tax returns and Forms 1099 after the Effective Date shall be
borne by the Latin America Investment Fund.
6.7. SHAREHOLDER LIST. Prior to the Effective Date, the Latin America
Equity Fund shall have made arrangements with its transfer agent to
deliver to the Latin America Investment Fund, a list of the names and
addresses of all of the shareholders of record of the Latin America
Equity Fund on the Effective Date and the number of shares of Common
Stock of the Latin America Equity Fund owned by each such shareholder,
certified by the Latin America Equity Fund's transfer agent or
President to the best of their knowledge and belief.
6.8. DELISTING, TERMINATION OF REGISTRATION AS AN INVESTMENT COMPANY. The
Latin America Equity Fund agrees that the (i) delisting of the shares
of the Latin America Equity Fund with the NYSE and (ii) termination of
its registration as a RIC will be effected in accordance with
applicable law as soon as practicable following the Effective Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE LATIN AMERICA INVESTMENT,
INC. FUND
The obligations of the Latin America Investment Fund
hereunder shall be subject to the following conditions:
7.1. APPROVAL OF MERGER. This Agreement shall have been approved by the
affirmative vote of the holders of a majority of the shares of Common
Stock of the Latin America Investment Fund issued and outstanding and
entitled to vote thereon and the affirmative vote of the holders of a
majority of the shares of Common Stock of the Latin America Equity
Fund issued and outstanding and entitled to vote thereon; and the
Latin America Equity Fund shall have delivered to the Latin America
Investment Fund a copy of the resolutions approving this Agreements
adopted by its Board of Directors and shareholders, certified by it
secretary.
7.2. CERTIFICATES AND STATEMENTS BY THE LATIN AMERICA EQUITY FUND, INC.
(a) The Latin America Equity Fund shall have furnished a statement
of assets, liabilities and capital,
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together with a schedule of investments with their respective
dates of acquisition and tax costs, certified on its behalf by
its President (or any Vice President) and its Treasurer, and a
certificate executed by both such officers, dated the
Effective Date, certifying that there has been no material
adverse change in its financial position since August 31,
2000, other than changes in its portfolio securities since
that date or changes in the market value of its portfolio
securities.
(b) The Latin America Equity Fund shall have furnished to the
Latin America Investment Fund a certificate signed by its
President (or any Vice President), dated the Effective Date,
certifying that as of the Effective Dates, all representations
and warranties made in this Agreement are true and correct in
all material respects as if made at and as of such date and
each has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied at
or prior to such dates.
(c) The Latin America Equity Fund shall have delivered to the
Latin America Investment Fund a letter from
PricewaterhouseCoopers LLP, dated the Effective Date, stating
that such firm has performed a limited review of the federal,
state and local income tax returns for the period ended
December 31, 1999, and that based on such limited review,
nothing came to their attention which caused them to believe
that such returns did not properly reflect, in all material
respects, the federal, state and local income taxes of the
Latin America Equity Fund for the period covered thereby; and
that for the period from December 31, 1999 to and including
the Effective Date and for any taxable year ending upon the
Effective Date, such firm has performed a limited review to
ascertain the amount of such applicable federal, state and
local taxes, and has determined that either such amount has
been paid or reserves have been established for payment of
such taxes, this review to be based on unaudited financial
data; and that based on such limited review, nothing has come
to their attention which caused them to believe that the taxes
paid or reserves set aside for payment of such taxes were not
adequate in all material respects for the satisfaction of
federal, state and local taxes for the period from December
31, 1999, to and including the Effective Date and for any
taxable year ending upon the Effective Date or that the Latin
America Equity Fund would not continue to qualify as a RIC for
federal income tax purposes.
7.3. ABSENCE OF LITIGATION. There shall be no material litigation pending
with respect to the matters contemplated by this Agreement.
7.4 LEGAL OPINIONS.
(a) The Latin America Investment Fund shall have received an
opinion of Willkie Farr & Gallagher, as counsel to the Latin
America Equity Fund, in form and substance reasonably
satisfactory to the Latin America Investment Fund and dated
the Effective Date, to the effect that (i) the Latin America
Equity Fund is a corporation duly organized, validly existing
under the laws of the State of Maryland and in good standing
with the Department; (ii) the Agreement has been duly
authorized, executed and delivered by the Latin America Equity
Fund, and, assuming that the N-14 Registration Statement
complies with the 1933 Act, 1934 Act and the 1940 Act,
constitutes a valid and legally binding obligation of the
Latin America Equity Fund, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws pertaining to
the enforcement of creditors' rights generally and by equitable
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<PAGE>
principles; (iii) to the best of such counsel's knowledge, no
consent, approval, authorization or order of any United States
federal or Maryland state court or governmental authority is
required for the consummation by the Latin America Equity Fund
of the Merger, except such as may be required under the 1933
Act, the 1934 Act, the 1940 Act, the published rules and
regulations of the SEC thereunder and under Maryland law and
such as may be required by state securities or blue sky laws;
(iv) such counsel does not know of any contracts or other
documents with respect to the Latin America Equity Fund
related to the Merger of a character required to be described
in the N-14 Registration Statement which are not described
therein or, if required to be filed, filed as required; (v)
the execution and delivery of this Agreement does not, and the
consummation of the Merger will not, violate any material
provision of the Articles of Incorporation, as amended, the
by-laws, as amended, or any agreement (known to such counsel)
to which the Latin America Equity Fund is a party or by which
the Latin America Equity Fund is bound, except insofar as the
parties have agreed to amend such provision as a condition
precedent to the Merger; (vi) to the best of such counsel's
knowledge, no material suit, action or legal or administrative
proceeding is pending or threatened against the Latin America
Equity Fund; and (vii) all corporate actions required to be
taken by the Latin America Equity Fund to authorize this
Agreement and to effect the Merger have been duly authorized
by all necessary corporate actions on behalf of the Latin
America Equity Fund. Such opinion shall also state that (A)
while such counsel cannot make any representation as to the
accuracy or completeness of statements of fact in the N-14
Registration Statement or any amendment or supplement thereto
with respect to the Latin America Equity Fund, nothing has
come to their attention that would lead them to believe that,
on the respective effective dates of the N-14 Registration
Statement and any amendment or supplement thereto with respect
to the Latin America Equity Fund, (1) the N-14 Registration
Statement or any amendment or supplement thereto contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading with respect to the
Latin America Equity Fund, and (2) the prospectus included in
the N-14 Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading with
respect to the Latin America Equity Fund; PROVIDED that such
counsel need not express any opinion or belief as to the
financial statements, other financial data, statistical data
or information relating to the Latin America Equity Fund
contained or incorporated by reference in the N-14
Registration Statement. In giving the opinion set forth above,
Willkie Farr & Gallagher may state that it is relying on
certificates of officers of the Latin America Equity Fund with
regard to matters of fact and certain certificates and written
statements of governmental officials with respect to the good
standing of the Latin America Equity Fund and on the opinion
of Venable, Baetjer and Howard, LLP, as to matters of Maryland
law.
(b) The Latin America Investment Fund shall have received an
opinion from Willkie Farr & Gallagher, as counsel to the Latin
America Equity Fund, dated the Effective Date, to the effect
that for federal income tax purposes (i) the Merger as
provided in this Agreement will constitute a reorganization
within the meaning of Section 368(a)(1)(A) of the Code and
that the Latin America Equity Fund and the Latin America
Investment Fund will each be deemed a "party" to a
reorganization within the meaning of Section 368(b) of the
Code; (ii) no gain or loss will be recognized to the Latin
America Equity Fund as a result of the Merger or the
conversion of Latin
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America Equity Fund shares to Latin America Investment Fund
Common Stock except to the extent such shareholders are paid
cash in lieu of fractional shares of Latin America Investment
Fund in the Merger; (iii) no gain or loss will be recognized
to the Latin America Investment Fund as a result of the
Merger; (iv) in accordance with Section 354(a)(1) of the Code,
no gain or loss will be recognized to the shareholders of the
Latin America Equity Fund on the conversion of their shares
into Latin America Investment Fund Common Stock; (v) the tax
basis of the Latin America Equity Fund assets in the hands of
the Latin America Investment Fund will be the same as the tax
basis of such assets in the hands of the Latin America Equity
Fund prior to the consummation of the Merger; (vi) immediately
after the Merger, the tax basis of the Latin America
Investment Fund Common Stock received by the shareholders of
the Latin America Equity Fund in the Merger will be equal, in
the aggregate, to the tax basis of the shares of the Latin
America Equity Fund converted pursuant to the Merger; (vii) a
shareholder's holding period for the Latin America Investment
Fund Common Stock will be determined by including the period
for which he or she held the Common Stock of the Latin America
Equity Fund converted pursuant to the Merger, provided that
such Latin America Equity Fund shares were held as a capital
asset; (viii) the Latin America Investment Fund's holding
period with respect to the Latin America Equity Fund assets
transferred will include the period for which such assets were
held by the Latin America Equity Fund; and (ix) the payment of
cash to the Latin America Equity Fund shareholders in lieu of
fractional shares of the Latin America Investment Fund will be
treated as though the fractional shares were distributed as
part of the Merger and then redeemed by the Latin America
Investment Fund with the result that the Latin America Equity
Fund shareholder will generally have capital gains or losses
to the extent the cash distribution differs from such
shareholder's basis allocable to the fractional shares.
7.5. AUDITOR'S CONSENT AND CERTIFICATION. The Latin America Investment Fund
shall have received from PricewaterhouseCoopers LLP a letter dated as
of the effective date of the N-14 Registration Statement and a similar
letter dated within five days prior to the Effective Date, in form and
substance satisfactory to the Latin America Investment Fund, to the
effect that (i) they are independent public auditors with respect to
the Latin America Investment Fund within the meaning of the 1933 Act
and the applicable published rules and regulations thereunder; and
(ii) in their opinion, the financial statements and supplementary
information of the Latin America Investment Fund included or
incorporated by reference in the N-14 Registration Statement and
reported on by them comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder.
7.6. LIABILITIES. The assets or liabilities of the Latin America Equity
Fund to be transferred to the Latin America Investment Fund shall not
include any assets or liabilities which the Latin America Investment
Fund, by reason of limitations in its investment objectives and
policies as in effect upon consummation of theMerger or Articles of
Incorporation, may not properly acquire or assume. The Latin America
Investment Fund does not anticipate that there will be any such assets
or liabilities but the Latin America Investment Fund will notify the
Latin America Equity Fund if any do exist and will reimburse the Latin
America Equity Fund for any reasonable transaction costs incurred by
the Latin America Equity Fund for the liquidation of such assets and
liabilities.
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7.7. EFFECTIVENESS OF N-14 REGISTRATION STATEMENT. The N-14 Registration
Statement shall have become effective under the 1933 Act and no stop
order suspending such effectiveness shall have been instituted or, to
the knowledge of the Latin America Investment Fund, contemplated by
the SEC.
7.8. APPROVAL OF EXEMPTIVE APPLICATION; REGULATORY FILINGS.
(a) The Exemptive Application shall have been approved and the
Latin America Investment Fund shall have received from the SEC
such orders or interpretations as Willkie Farr & Gallagher, as
counsel to the Latin America Investment Fund, deems reasonably
necessary or desirable under the 1933 Act and the 1940 Act in
connection with the Merger, provided, that such counsel shall
have requested such orders as promptly as practicable, and all
such orders shall be in full force and effect.
(b) Any applicable waiting period under the HSR Act relating to
the transactions contemplated hereby shall have expired or
been terminated.
7.9. ADMINISTRATIVE RULINGS, PROCEEDINGS. The SEC shall not have issued an
unfavorable advisory report under Section 25(b) of the 1940 Act, nor
instituted or threatened to institute any proceeding seeking to enjoin
consummation of the Merger under Section 25(c) of the 1940 Act; no
other legal, administrative or other proceeding shall be instituted or
threatened which would materially affect the financial condition of
the Latin America Equity Fund or would prohibit the Merger.
7.10. SATISFACTION OF THE LATIN AMERICA INVESTMENT FUND, INC. All
proceedings taken by the Latin America Equity Fund and its counsel in
connection with the Merger and all documents incidental thereto shall
be satisfactory in form and substance to the Latin America Investment
Fund.
7.11. DIVIDENDS. Prior to the Effective Date, the Latin America Equity Fund
shall have declared and paid a dividend or dividends which, together
with all such previous dividends, shall have the effect of
distributing to its shareholders substantially all of its net
investment company taxable income that has accrued through the
Effective Date, if any (computed without regard to any deduction of
dividends paid)(unless such amounts are immaterial), and substantially
all of its net capital gain, if any, realized through the Effective
Date.
7.12. CUSTODIAN'S CERTIFICATE. The Latin America Equity Fund's custodian
shall have delivered to the Latin America Investment Fund a
certificate identifying all of the assets of the Latin America Equity
Fund held or maintained by such custodian as of the Valuation Time.
7.13. BOOKS AND RECORDS. The Latin America Equity Fund's transfer agent
shall have provided to the Latin America Investment Fund (i) the
originals or true copies of all of the records of the Latin America
Equity Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares
of the Latin America Equity Fund outstanding as of the Valuation Time,
and (iii) the name and address of each holder of record of any shares
and the number of shares held of record by each such shareholder.
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8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE LATIN AMERICA EQUITY
FUND, INC.
The obligations of the Latin America Equity Fund
hereunder shall be subject to the following conditions:
8.1. APPROVAL OF MERGER. This Agreement shall have been approved by the
affirmative vote of the holders of a majority of the shares of Common
Stock of the Latin America Equity Fund issued and outstanding and
entitled to vote thereon and the affirmative vote of the holders of a
majority of the shares of Common Stock of the Latin America Investment
Fund issued and outstanding and entitled to vote thereon; and that the
Latin America Investment Fund shall have delivered to the Latin
America Equity Fund a copy of the resolutions approving this Agreement
adopted by its Board of Directors and shareholders, certified by its
secretary.
8.2. CERTIFICATES AND STATEMENTS BY THE LATIN AMERICA INVESTMENT FUND, INC.
(a) The Latin America Investment Fund shall have furnished a
statement of assets, liabilities and capital, together with a
schedule of investments with their respective dates of
acquisition and tax costs, certified on its behalf by its
President (or any Vice President) and its Treasurer, and a
certificate executed by both such officers, dated the
Effective Date, certifying that there has been no material
adverse change in its financial position since August 31,
2000, other than changes in its portfolio securities since
that date or changes in the market value of its portfolio
securities.
(b) The Latin America Investment Fund shall have furnished to the
Latin America Equity Fund a certificate signed by its
President (or any Vice President), dated the Effective Date,
certifying that as of the Effective Date, all representations
and warranties made in this Agreement are true and correct in
all material respects as if made at and as of such date and
each has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied at
or prior to such dates.
(c) The Latin America Investment Fund shall have delivered to the
Latin America Equity Fund a letter from PricewaterhouseCoopers
LLP, dated the Effective Date, stating that such firm has
performed a limited review of the federal, state and local
income tax returns for the period ended December 31, 1999, and
that based on such limited review, nothing came to their
attention which caused them to believe that such returns did
not properly reflect, in all material respects, the federal,
state and local income taxes of the Latin America Investment
Fund for the period covered thereby; and that for the period
from December 31, 1999 to and including the Effective Date,
such firm has performed a limited review to ascertain the
amount of such applicable federal, state and local taxes, and
has determined that either such amount has been paid or
reserves established for payment of such taxes, this review to
be based on unaudited financial data; and that based on such
limited review, nothing has come to their attention which
caused them to believe that the taxes paid or reserves set
aside for payment of such taxes were not adequate in all
material respects for the satisfaction of federal, state and
local taxes for the period from December 31, 1999, to and
including the Effective Date or that the Latin America
Investment Fund would not continue to qualify as a RIC for
federal income tax purposes.
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8.3. ABSENCE OF LITIGATION. There shall be no material litigation pending
with respect to the matters contemplated by this Agreement.
8.4. LEGAL OPINIONS.
(a) The Latin America Equity Fund shall have received an opinion
of Willkie Farr & Gallagher, as counsel to the Latin America
Investment Fund, in form and substance reasonably satisfactory
to the Latin America Equity Fund and dated the Effective Date,
to the effect that (i) the Latin America Investment Fund is a
corporation duly organized, validly existing under the laws of
the State of Maryland and in good standing with the
Department; (ii) the Agreement has been duly authorized,
executed and delivered by the Latin America Investment Fund,
and, assuming that the N-14 Registration Statement complies
with the 1933 Act, 1934 Act and the 1940 Act, constitutes a
valid and legally binding obligation of the Latin America
Investment Fund, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws pertaining to
the enforcement of creditors' rights generally and by
equitable principles; (iii) to the best of such counsel's
knowledge, no consent, approval, authorization or order of any
United States federal or Maryland state court or governmental
authority is required for the consummation by the Latin
America Investment Fund of the Merger, except such as may be
required under the 1933 Act, the 1934 Act, the 1940 Act and
the published rules and regulations of the SEC thereunder and
under Maryland law and such as may be required under state
securities or blue sky laws; (iv) the N-14 Registration
Statement has become effective under the 1933 Act, no stop
order suspending the effectiveness of the N-14 Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
1933 Act, and, with respect to the Latin America Investment
Fund, the N-14 Registration Statement, and each amendment or
supplement thereto, as of their respective effective dates,
appear on their face to be appropriately responsive in all
material respects to the requirements of the 1933 Act, the
1934 Act and the 1940 Act and the published rules and
regulations of the SEC thereunder; (v) such counsel does not
know of any statutes, legal or governmental proceedings or
contracts with respect to the Latin America Investment Fund or
other documents related to the Merger of a character required
to be described in the N-14 Registration Statement which are
not described therein or, if required to be filed, filed as
required; (vi) the execution and delivery of this Agreement
does not, and the consummation of the Merger will not, violate
any material provision of the Articles of Incorporation, as
amended, the by-laws, as amended, or any agreement (known to
such counsel) to which the Latin America Investment Fund is a
party or by which the Latin America Investment Fund is bound,
except insofar as the parties have agreed to amend such
provision as a condition precedent to the Merger; (vii) to the
best of such counsel's knowledge, no material suit, action or
legal or administrative proceeding is pending or threatened
against the Latin America Investment Fund; and (viii) all
corporate actions required to be taken by the Latin America
Investment Fund to authorize this Agreement and to effect the
Merger have been duly authorized by all necessary corporate
actions on behalf of the Latin America Investment Fund. Such
opinion shall also state that (A) while such counsel cannot
make any representation as to the accuracy or completeness of
statements of fact in the N-14 Registration Statement or any
amendment or supplement thereto with respect to the Latin
America Investment Fund, nothing has come to their attention
that would lead them to believe that, on the respective
effective dates
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of the N-14 Registration Statement and any amendment or
supplement thereto, (1) the N-14 Registration Statement or any
amendment or supplement thereto contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading with respect to the Latin
America Investment Fund; and (2) the prospectus included in
the N-14 Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading with
respect to the Latin America Investment Fund; PROVIDED that
such counsel need not express any opinion or belief as to the
financial statements, other financial data, statistical data
or information relating to the Latin America Investment Fund
contained or incorporated by reference in the N-14
Registration Statement. In giving the opinion set forth above,
Willkie Farr & Gallagher may state that it is relying on
certificates of officers of the Latin America Investment Fund
with regard to matters of fact and certain certificates and
written statements of governmental officials with respect to
the good standing of the Latin America Investment Fund and on
the opinion of Venable, Baetjer and Howard, LLP as to matters
of Maryland law.
(b) The Latin America Equity Fund shall have received an opinion
from Willkie Farr & Gallagher and dated the Effective Date, to
the effect that for federal income tax purposes (i) the Merger
as provided in this Agreement will constitute a reorganization
within the meaning of Section 368(a)(1)(A) of the Code and
that the Latin America Investment Fund and the Latin America
Equity Fund will each be deemed a "party" to a reorganization
within the meaning of Section 368(b) of the Code; (ii) no gain
or loss will be recognized to the Latin America Equity Fund as
a result of the Merger or on the conversion of Latin America
Equity shares to Latin America Investment Fund Common Stock
except to the extent such shareholders are paid cash in lieu
of fractional shares of Latin America Investment Fund in the
Merger; (iii) no gain or loss will be recognized to the Latin
America Equity Fund as a result of the Merger; (iv) no gain or
loss will be recognized to the shareholders of the Latin
America Equity Fund on the conversion of their shares into
Latin America Investment Fund Common Stock; (v) the tax basis
of the Latin America Equity Fund assets in the hands of the
Latin America Investment Fund will be the same as the tax
basis of such assets in the hands of the Latin America Equity
Fund prior to the consummation of the Merger; (vi) immediately
after the Merger, the tax basis of the Latin America
Investment Fund Common Stock received by the shareholders of
the Latin America Equity Fund in the Merger will be equal, in
the aggregate, to the tax basis of the shares of the Latin
America Equity Fund converted pursuant to the Merger; (vii) a
shareholder's holding period for the Latin America Investment
Fund Common Stock will be determined by including the period
for which he or she held the Common Stock of the Latin America
Equity Fund converted pursuant to the Merger, provided, that
such Latin America Equity Fund shares were held as a capital
asset; (viii) the Latin America Investment Fund's holding
period with respect to the Latin America Equity Fund assets
transferred will include the period for which such assets were
held by the Latin America Equity Fund; and (ix) the payment of
cash to the Latin America Equity Fund shareholders in lieu of
fractional shares of the Latin America Investment Fund will be
treated as though the fractional shares were distributed as
part of the Merger and then redeemed by the Latin America
Investment Fund with the result that the Latin America Equity
Fund shareholder will generally have capital gains or losses
to the extent the cash distribution differs from such
shareholder's basis allocable to the fractional shares.
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8.5. AUDITOR'S CONSENT AND CERTIFICATION. The Latin America Equity Fund
shall have received from PricewaterhouseCoopers LLP a letter dated as
of the effective date of the N-14 Registration Statement and a similar
letter dated within five days prior to the Effective Date, in form and
substance satisfactory to the Latin America Equity Fund, to the effect
that (i) they are independent public auditors with respect to the
Latin America Investment Fund within the meaning of the 1933 Act and
the applicable published rules and regulations thereunder; and (ii) in
their opinion, the financial statements and supplementary information
of the Latin America Investment Fund incorporated by reference in the
N-14 Registration Statement and reported on by them comply as to form
in all material respects with the applicable accounting requirements
of the 1933 Act and the published rules and regulations thereunder.
8.6. EFFECTIVENESS OF N-14 REGISTRATION STATEMENT. The N-14 Registration
Statement shall have become effective under the 1933 Act and no stop
order suspending such effectiveness shall have been instituted or, to
the knowledge of the Latin America Equity Fund, contemplated by the
SEC.
8.7. APPROVAL OF EXEMPTIVE APPLICATION; REGULATORY FILINGS.
(a) The Exemptive Application shall have been approved and the
Latin America Equity Fund shall have received from the SEC
such orders or interpretations as Willkie Farr & Gallagher, as
counsel to the Latin America Equity Fund, deems reasonably
necessary or desirable under the 1933 Act and the 1940 Act in
connection with the Merger, provided, that such counsel or
counsel to the Latin America Investment Fund shall have
requested such orders as promptly as practicable, and all such
orders shall be in full force and effect. Any applicable
waiting period under the HSR Act relating to the transactions
contemplated hereby shall have expired or been terminated.
(b) The SEC shall not have issued an unfavorable advisory report
under Section 25(b) of the 1940 Act, nor instituted or
threatened to institute any proceeding seeking to enjoin
consummation of the Merger under Section 25(c) of the 1940
Act; no other legal, administrative or other proceeding shall
be instituted or threatened which would materially affect the
financial condition of the Latin America Equity Fund or would
prohibit the Merger.
(c) The Latin America Investment Fund shall have received from any
relevant state securities administrator such order or orders
as are reasonably necessary or desirable under the 1933 Act,
the 1934 Act, the 1940 Act, and any applicable state
securities or blue sky laws in connection with the
transactions contemplated hereby, and that all such orders
shall be in full force and effect.
8.8. SATISFACTION OF THE LATIN AMERICA EQUITY FUND, INC. All proceedings
taken by the Latin America Investment Fund and its counsel in
connection with the Merger and all documents incidental thereto shall
be satisfactory in form and substance to the Latin America Equity Fund.
8.9. DIVIDENDS. Prior to the Effective Date, the Latin America Investment
Fund shall have declared and paid a dividend or dividends which,
together with all such previous dividends, shall have the effect of
distributing to its shareholders substantially all of its net
investment company taxable
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income that has accrued through the Effective Date, if any (computed
without regard to any deduction of dividends paid)(unless such amounts
are immaterial), and substantially all of its net capital gain, if
any, realized through the Effective Date.
9. PAYMENT OF EXPENSES
9.1. ALLOCATION. All expenses incurred in connection with the Merger shall
be allocated equally between the Latin America Investment Fund and the
Latin America Equity Fund in the event the Merger is consummated. Such
expenses shall include, but not be limited to, all costs related to the
preparation and distribution of the N-14 Registration Statement, the
Exemptive Application, the HSR Filing for the Parties, proxy
solicitation expenses, legal and accounting fees, SEC registration
fees, and NYSE listing fees. Neither of the Parties owes any broker's
or finder's fees in connection with the transactions provided for
herein.
10. COOPERATION FOLLOWING EFFECTIVE DATE
In case at any time after the Effective Date any
further action is necessary to carry out the purposes of this
Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments and
documents) as any other Party may reasonably request, all at the sole
cost and expense of the requesting Party (unless the requesting Party
is entitled to indemnification as described below). The Latin America
Equity Fund acknowledges and agrees that from and after the Effective
Date, the Latin America Investment Fund shall be entitled to
possession of all documents, books, records, agreements and financial
data of any sort pertaining to the Latin America Equity Fund.
11. INDEMNIFICATION
11.1. THE LATIN AMERICA EQUITY FUND, INC. The Latin America Investment Fund
agrees to indemnify and hold harmless the Latin America Equity Fund
and each of the Latin America Equity Fund's directors and officers
from and against any and all losses, claims, damages, liabilities or
expenses (including, without limitation, the payment of reasonable
legal fees and reasonable costs of investigation) to which jointly and
severally, the Latin America Equity Fund or any of its directors or
officers may become subject, insofar as any such loss, claim, damage,
liability or expense (or actions with respect thereto) arises out of
or is based on any breach by the Latin America Investment Fund of any
of its representations, warranties, covenants or agreements set forth
in this Agreement.
11.2 THE LATIN AMERICA INVESTMENT FUND, INC. The Latin America Equity Fund
agrees to indemnify and hold harmless the Latin America Investment
Fund and each of the Latin America Investment Fund's directors and
officers from and against any and all losses, claims, liabilities or
expenses (including, without limitation, the payment of reasonable
legal fees and reasonable costs of investigation) to which jointly and
severally, the Latin America Investment Fund or any of its directors
or officers may become subject, insofar as any such loss, claim,
damage, liability or expense (or actions with respect thereto) arises
out of or is based on any breach by the Latin America Equity Fund of
any of its representations, warranties, covenants or agreements set
forth in this Agreement.
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12. TERMINATION, POSTPONEMENT AND WAIVERS
12.1. TERMINATION.
(a) Notwithstanding anything to the contrary in this Agreement,
this Agreement may be terminated and the Merger abandoned at
any time (whether before or after adoption by the shareholders
of each of the Parties) prior to the Effective Date, or the
Effective Date may be postponed, (i) by mutual agreement of
the Parties' Board of Directors; (ii) by the Board of
Directors of the Latin America Investment Fund if any of the
obligations of the Latin America Equity Fund set forth in this
Agreement has not been fulfilled or waived by such Board or if
the Latin America Equity Fund has made a material and
intentional misrepresentation herein or in connection
herewith; or (iii) by the Board of Directors of the Latin
America Equity Fund if any of the obligations of the Latin
America Investment Fund set forth in this Agreement has not
been fulfilled or waived by such Board or if the Latin America
Investment Fund has made a material and intentional
misrepresentation herein or in connection herewith.
(b) If the transaction contemplated by this Agreement shall not
have been consummated by December 31, 2000, this Agreement
automatically shall terminate on that date, unless a later
date is mutually agreed to by the Boards of Directors of the
Parties.
(c) In the event of termination of this Agreement pursuant to the
provisions hereof, the Agreement shall become void and have no
further effect, and there shall not be any liability hereunder
on the part of either of the Parties or their respective
directors or officers, except for any such material breach or
intentional misrepresentation, as to each of which all
remedies at law or in equity of the party adversely affected
shall survive.
12.2. WAIVER. At any time prior to the Effective Date, any of the terms or
conditions of this Agreement may be waived by the Board of Directors
of either the Latin America Equity Fund or the Latin America
Investment Fund (whichever is entitled to the benefit thereof), if, in
the judgment of such Board after consultation with its counsel, such
action or waiver will not have a material adverse effect on the
benefits intended in this Agreement to the shareholders of their
respective fund, on behalf of which such action is taken.
12.3. EXPIRATION OF REPRESENTATIONS AND WARRANTIES.
(a) The respective representations and warranties contained in
Articles 3 and 4 of this Agreement shall expire with, and be
terminated by, the consummation of the Merger, and neither of
the Parties nor any of their officers, directors, agents or
shareholders shall have any liability with respect to such
representations or warranties after the Effective Date. This
provision shall not protect any officer, director, agent or
shareholder of the Parties against any liability to the entity
for which that officer, director, agent or shareholder so acts
or to its shareholders to which that officer, director, agent
or shareholder would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless
disregard of the duties in the conduct of such office.
(b) If any order or orders of the SEC with respect to this
Agreement shall be issued prior to the
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Effective Date and shall impose any terms or conditions which
are determined by action of the Boards of Directors of the
Parties to be acceptable, such terms and conditions shall be
binding as if a part of this Agreement without further vote or
approval of the shareholders of the Parties, unless such terms
and conditions shall result in a change in the method of
computing the number of shares of Latin America Investment
Fund Common Stock to be issued pursuant to this Agreement, in
which event, unless such terms and conditions shall have been
included in the proxy solicitation materials furnished to the
shareholders of the Parties prior to the meetings at which the
Merger shall have been approved, this Agreement shall not be
consummated and shall terminate unless the Parties call
special meetings of shareholders at which such conditions so
imposed shall be submitted for approval.
13. MISCELLANEOUS
13.1 TRANSFER RESTRICTION. Pursuant to Rule 145 under the 1933 Act, and in
connection with the issuance of any shares to any person who at the
time of the Merger is, to its knowledge, an affiliate of a party to
the Merger pursuant to Rule 145(c), the Latin America Investment Fund
will cause to be affixed upon the certificate(s) issued to such person
(if any) a legend as follows:
THESE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT TO THE LATIN AMERICA INVESTMENT FUND, INC.
(OR ITS STATUTORY SUCCESSOR) UNLESS (I) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
SECURITIES ACT OF 1933 OR (II) IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE FUND, SUCH REGISTRATION IS NOT
REQUIRED.
and, further, that stop transfer instructions will be issued to the
Latin America Investment Fund's transfer agent with respect to such
shares. The Latin America Equity Fund will provide the Latin America
Investment Fund on the Effective Date with the name of any Latin
America Equity Fund Shareholder who is to the knowledge of the Latin
America Equity Fund an affiliate of it on such date.
13.2 MATERIAL PROVISIONS. All covenants, agreements, representations and
warranties made under this Agreement and any certificates delivered
pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation
made by them or on their behalf.
13.3 NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request,
demand, claim or other communication hereunder shall be deemed duly
given if (and then two business days after) it is sent by registered
or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to the Latin America Investment Fund:
Hal Liebes, Esq.
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Senior Vice President
The Latin America Investment Fund, Inc.
466 Lexington Avenue
New York, New York 10017
With copies to:
Daniel Schloendorn, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Marco E. Adelfio, Esq.
Morrison & Foerster
2000 Pennsylvania Avenue, N.W.
Suite 5500
Washington, D.C. 20006
If to the Latin America Equity Fund:
Hal Liebes, Esq.
Senior Vice President
The Latin America Equity Fund
466 Lexington Avenue
New York, New York 10017
With copies to:
Daniel Schloendorn, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Marco E. Adelfio, Esq.
Morrison & Foerster
2000 Pennsylvania Avenue, N.W.
Suite 5500
Washington, D.C. 20006
Any Party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set
forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail,
or electronic mail), but no such notice, request, demand, claim, or
other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any Party may
change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
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13.4. AMENDMENTS. This Agreement may be amended, modified or supplemented in
such manner as may be mutually agreed upon in writing by the
authorized officers of the Latin America Investment Fund and the Latin
America Equity Fund; provided, however, that following the meeting of
the Latin America Investment Fund and Latin America Equity Fund
shareholders to approve the Merger, no such amendment may have the
effect of changing the provisions for determining the number of the
Latin America Investment Fund shares to be issued to the Latin America
Equity Fund shareholders under this Agreement to the detriment of such
shareholders without their further approval.
13.5. HEADINGS. The Article headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
13.7. ENFORCEABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
13.8. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and
assigns, but no assignment or transfer hereof or of any rights or
obligations hereunder shall be made by any party without the written
consent of the other party. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give any person, firm
or corporation, other than the parties hereto and the shareholders of
the Parties and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
13.9. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of Maryland, without
regard to its principles of conflicts of law.
IN WITNESS WHEREOF, each of the Parties hereto has
caused this Agreement to be executed by its President or Vice
President and its seal to be affixed thereto and attested by its
Secretary or Assistant Secretary.
THE LATIN AMERICA INVESTMENT FUND, INC.
By:_______________________________________
[SEAL]
Name:
Attest:
Title:
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THE LATIN AMERICA EQUITY FUND, INC.
By:_______________________________________
[SEAL]
Name:
Attest:
Title:
30
