MERGER AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
AND
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
DATED AS OF JUNE [ ], 2000
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TABLE OF CONTENTS
1. DEFINITIONS...............................................................1
2. BASIC TRANSACTION.........................................................1
2.1. The Merger..........................................................1
2.2. Actions at Closing..................................................2
2.3. Effect of Merger....................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE EMERGING MARKETS
INFRASTRUCTURE FUND..........................................................2
3.1. Organization........................................................2
3.2. Registrations and Qualifications....................................2
3.3. Regulatory Consents and Approvals...................................2
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....................................5
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 EMERGING MARKETS
TELECOMMUNICATIONS FUND......................................................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......................................................9
4.15. Issuance of Stock...................................................9
4.16. Books and Records...................................................9
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5. CONVERSION TO EMERGING MARKETS TELECOMMUNICATIONS FUND COMMON STOCK.......9
5.1. Conversion..........................................................9
5.2. Computation of Net Asset Value.....................................10
5.3. Issuance of Emerging Markets Telecommunications Fund Common Stock..10
5.4. Surrender of Emerging Markets Infrastructure Fund Stock
Certificates.......................................................10
6. COVENANTS OF THE PARTIES.................................................11
6.1. Shareholders' Meetings.............................................11
6.2. Operations in the Normal Course....................................11
6.3. Articles of Merger.................................................11
6.4. Regulatory Filings.................................................11
6.5. Preservation of Assets.............................................12
6.6. Tax Matters........................................................12
6.7. Shareholder List...................................................12
6.8. Delisting, Termination of Registration as an Investment Company....12
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE EMERGING MARKETS
TELECOMMUNICATIONS FUND.....................................................13
7.1. Approval of Merger.................................................13
3. Certificates and Statements by the Emerging Markets Infrastructure
Fund...............................................................13
7.3. Absence of Litigation..............................................14
7.4. Legal Opinions.....................................................14
7.5. Auditor's Consent and Certification................................16
7.6. Liabilities........................................................16
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 Emerging Markets Telecommunications
Fund, Inc..........................................................17
7.11. Dividends..........................................................17
7.12. Custodian's Certificate............................................17
7.13. Books and Records..................................................17
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE EMERGING MARKETS
INFRASTRUCTURE FUND.........................................................17
8.1. Approval of Merger.................................................17
8.2. Certificates and Statements by the Emerging Markets
Telecommunications Fund............................................17
8.3. Absence of Litigation..............................................18
8.4. Legal Opinions.....................................................18
8.5. Auditor's Consent and Certification................................20
8.6. Effectiveness of N-14 Registration Statement.......................20
8.7. Approval of Exemptive Application; Regulatory Filings..............21
8.8. Satisfaction of the Emerging Markets Infrastructure Fund...........21
8.9. Dividends..........................................................21
9. PAYMENT OF EXPENSES......................................................21
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9.1. Allocation.........................................................21
10. COOPERATION FOLLOWING EFFECTIVE DATE....................................22
11. INDEMNIFICATION.........................................................22
11.1. The Emerging Markets Infrastructure Fund...........................22
11.2. The Emerging Markets Telecommunications Fund.......................22
12. TERMINATION, POSTPONEMENT AND WAIVERS...................................22
12.1. Termination........................................................22
12.2. Waiver.............................................................23
12.3. Expiration of Representations and Warranties.......................23
13. MISCELLANEOUS...........................................................24
13.1. Transfer Restriction...............................................24
13.2. Material Provisions................................................24
13.3. Notices............................................................24
13.4. Amendments.........................................................26
13.5. Headings...........................................................26
13.6. Counterparts.......................................................26
13.7. Enforceability.....................................................26
13.8. Successors and Assigns.............................................26
13.9. Governing Law......................................................26
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THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made as of this day of June, 2000, between The Emerging Markets
Infrastructure Fund, Inc. (the "Target Fund" or the "Emerging Markets
Infrastructure Fund"), a Maryland corporation and a registered investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and The Emerging Markets Telecommunications Fund, Inc. (the "Acquiring Fund" or
the "Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications Fund shall be the surviving investment company. The Emerging
Markets Infrastructure Fund shall cease to exist as a separate investment
company.
Each share of the Emerging Markets Infrastructure 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 Emerging Markets
Telecommunications 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 Emerging Markets Telecommunications Fund will be issued to
Emerging Markets Infrastructure Fund shareholders. In lieu thereof, the Emerging
Markets Telecommunications Fund's transfer agent will aggregate all fractional
shares of the Emerging Markets Telecommunications Fund and sell the resulting
full shares on the New York Stock Exchange ("NYSE") at the current market price
for shares of the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure 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 Emerging Markets Infrastructure 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 Emerging Markets Infrastructure Fund will deliver to the
Emerging Markets Telecommunications Fund the various certificates and documents
referred to in Article 7 below, (ii) the Emerging Markets Telecommunications
Fund will deliver to the Emerging Markets Infrastructure Fund the various
certificates and documents referred to in Article 8 below, and (iii) the
Emerging Markets Infrastructure Fund and the Emerging Markets Telecommunications
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 Emerging Markets Infrastructure Fund shall cease. As promptly
as practicable after the Merger, the Emerging Markets Infrastructure Fund shall
delist its shares from the NYSE and its registration under the 1940 Act shall be
terminated. Any reporting responsibility of the Emerging Markets Infrastructure
Fund is, and shall remain, the responsibility of the Emerging Markets
Infrastructure Fund up to and including the Effective Date.
3. REPRESENTATIONS AND WARRANTIES OF THE EMERGING MARKETS
INFRASTRUCTURE FUND
The Emerging Markets Infrastructure Fund represents and warrants to
the Emerging Markets Telecommunications 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 Emerging Markets
Infrastructure Fund represents and warrants to, and agrees with, the Emerging
Markets Telecommunications Fund that:
3.1. Organization. The Emerging Markets Infrastructure 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 Emerging Markets
Infrastructure Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company (File No. ), and such
registration has not been revoked or rescinded and is in full force and effect.
The Emerging Markets Infrastructure 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 Emerging
Markets Infrastructure 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 Emerging Markets Infrastructure
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 Emerging Markets Infrastructure 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 Emerging Markets Infrastructure Fund is
not, and the execution, delivery and performance of this Agreement by the
Emerging Markets Infrastructure Fund will not result in, a violation of the laws
of the State of Maryland or of the Articles of Incorporation or the By-laws of
the Emerging Markets Infrastructure Fund, or of any material agreement,
indenture, instrument, contract, lease or other undertaking to which the
Emerging Markets Infrastructure Fund is a party or by which it is bound, and the
execution, delivery and performance of this Agreement by the Emerging Markets
Infrastructure 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 Emerging Markets Infrastructure
Fund is a party or by which it is bound.
3.5. Financial Statements. The Emerging Markets Telecommunications
Fund has been furnished with a statement of assets, liabilities and capital and
a schedule of investments of the Emerging Markets Infrastructure Fund, each as
of November 30, 1999, said financial statements having been examined by
PricewaterhouseCoopers LLP, independent public auditors. 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 Emerging Markets Infrastructure Fund as
of such date in accordance with GAAP, and there are no known contingent
liabilities of the Emerging Markets Infrastructure 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 Emerging Markets Telecommunications Fund has been furnished with
an unaudited statement of assets, liabilities and capital and a schedule of
investments of the Emerging Markets Infrastructure Fund, each as of May 31,
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 Emerging Markets Infrastructure Fund as of such date in accordance with
GAAP, and there are no known contingent liabilities of the Emerging Markets
Infrastructure 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 Emerging Markets Telecommunications Fund has
been furnished with the Emerging Markets Infrastructure Fund's Annual Report to
Shareholders for the fiscal year ended November 30, 1999.
3.7. Qualification, Corporate Power, Authorization of Transaction.
The Emerging Markets Infrastructure 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
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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.
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 Emerging Markets Infrastructure Fund or any
properties or assets held by it. The Emerging Markets Infrastructure 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 Emerging Markets Infrastructure 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 Emerging Markets Telecommunications
Fund prior to the Effective Date.
3.10. Undisclosed Liabilities. Since December 31, 1999, there has
not been any material adverse change in the Emerging Markets Infrastructure
Fund's financial condition, assets, liabilities or business and the Emerging
Markets Infrastructure 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 Emerging Markets
Infrastructure 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 Emerging Markets Infrastructure Fund will
advise the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund
due to declines in market values of securities in the Emerging Markets
Infrastructure Fund's portfolio or the discharge of Emerging Markets
Infrastructure Fund liabilities will not constitute a material adverse change.
3.11. Tax Filings. All federal and other tax returns and information
reports of the Emerging Markets Infrastructure 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 Emerging Markets Infrastructure
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 Emerging
Markets Infrastructure Fund have been adequately provided for on its books, and
no tax deficiency or liability of the Emerging Markets Infrastructure 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.
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3.12. Qualification under Subchapter M. For each taxable year of its
operation (including the taxable year ending on the Effective Date), the
Emerging Markets Infrastructure 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.
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 Emerging Markets Telecommunications Fund on Form
N-14 relating to the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure
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 Emerging Markets Telecommunications Fund for use in the N-14
Registration Statement.
3.14. Capitalization.
(a) All issued and outstanding shares of the Emerging Markets
Infrastructure 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 Emerging Markets
Infrastructure Fund does not have outstanding any options, warrants or other
rights to subscribe for or purchase any of the Emerging Markets Infrastructure
Fund shares, nor is there outstanding any security convertible into, or
exchangeable for, any of the Emerging Markets Infrastructure Fund shares.
(b) The Emerging Markets Infrastructure 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 Emerging
Markets Infrastructure Fund made available to the Emerging Markets
Telecommunications Fund are
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substantially true and correct and contain no material misstatements or
omissions with respect to the operations of the Emerging Markets Infrastructure
Fund.
4. REPRESENTATIONS AND WARRANTIES OF THE EMERGING MARKETS
TELECOMMUNICATIONS FUND
The Emerging Markets Telecommunications Fund represents and warrants
to the Emerging Markets Infrastructure 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 Emerging Markets
Telecommunications Fund represents and warrants to, and agrees with, the
Emerging Markets Infrastructure Fund that:
4.1. Organization. The Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company (File No. 811- ) and such
registration has not been revoked or rescinded and is in full force and effect.
The Emerging Markets Telecommunications 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 Emerging Markets Telecommunications 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 Emerging Markets Telecommunications 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 Emerging Markets Telecommunications 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 Emerging Markets Telecommunications Fund
is not, and the execution, delivery and performance of this Agreement by the
Emerging Markets Telecommunications 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 Emerging Markets Telecommunications Fund, or of any material agreement,
indenture, instrument, contract, lease or other undertaking to which the
Emerging Markets Telecommunications Fund is a party or by which it is bound, and
the execution, delivery and performance of this Agreement by the Emerging
Markets Telecommunications 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 Emerging Markets
Telecommunications Fund is a party or by which it is bound.
4.5. Financial Statements. The Emerging Markets Infrastructure Fund
has been furnished with a statement of assets, liabilities and capital and a
schedule of investments of
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the Emerging Markets Telecommunications Fund, each as of May 31, 1999, said
financial statements having been examined by PricewaterhouseCoopers LLP,
independent public auditors. These financial statements are in accordance with
GAAP and present fairly, in all material respects, the financial position of the
Emerging Markets Telecommunications Fund as of such date in accordance with
GAAP, and there are no known contingent liabilities of the Emerging Markets
Telecommunications 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 Emerging Markets Infrastructure Fund has been furnished with an
unaudited statement of assets, liabilities and capital and a schedule of
investments of the Emerging Markets Telecommunications Fund, each as of May 31,
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 Emerging Markets Telecommunications Fund as of such date in accordance with
GAAP, and there are no known contingent liabilities of the Emerging Markets
Telecommunications 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 Emerging Markets Infrastructure Fund has
been furnished with the Emerging Markets Telecommunications Fund's Annual Report
to Shareholders for the year ended May 31, 1999.
4.7. Qualification, Corporate Power, Authorization of Transaction.
The Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications Fund or any properties or assets held by it. The Emerging
Markets Telecommunications 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 Emerging Markets Telecommunications Fund is a party that have not
been disclosed in the N-14 Registration Statement or will not be otherwise
disclosed to the Emerging Markets Infrastructure Fund prior to the Effective
Date.
4.10. Undisclosed Liabilities. Since December 31, 1999, there has
not been any material adverse change in the Emerging Markets Telecommunications
Fund's financial condition, assets, liabilities, or business and the Emerging
Markets Telecommunications Fund
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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
Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications Fund will advise the Emerging Markets Infrastructure 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 4.10, a decline in net asset value per share of the Emerging
Markets Telecommunications Fund due to declines in market values of securities
in the Emerging Markets Telecommunications Fund's portfolio or the discharge of
the Emerging Markets Telecommunications Fund liabilities will not constitute a
material adverse change.
4.11. Tax Filings. All federal and other tax returns and information
reports of the Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications 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 Emerging Markets Telecommunications Fund have been adequately
provided for on its books, and no tax deficiency or liability of the Emerging
Markets Telecommunications 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 Emerging Markets Telecommunications 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 Emerging Markets Telecommunications 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 Emerging
Markets Infrastructure Fund for use in the N-14 Registration Statement.
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4.14. Capitalization.
(a) All issued and outstanding shares of the Emerging Markets
Telecommunications 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. The Emerging Markets Telecommunications Fund
does not have outstanding any options, warrants or other rights to subscribe for
or purchase any of the Emerging Markets Telecommunications Fund shares, nor is
there outstanding any security convertible into, or exchangeable for, any of the
Emerging Markets Telecommunications Fund shares.
(b) The Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications Fund will have obtained any and all regulatory, director and
shareholder approvals necessary to issue the Emerging Markets Telecommunications
Fund Common Stock.
4.16. Books and Records. The books and records of the Emerging
Markets Telecommunications Fund made available to the Emerging Markets
Infrastructure Fund are substantially true and correct and contain no material
misstatements or omissions with respect to the operations of the Emerging
Markets Telecommunications Fund.
5. CONVERSION TO EMERGING MARKETS TELECOMMUNICATIONS FUND 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 Emerging Markets Infrastructure Fund
will be converted into an equivalent dollar amount (to the nearest one
ten-thousandth of one cent) of full shares of Emerging Markets
Telecommunications 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 Emerging Markets Telecommunications
Fund will be issued to Emerging Markets Infrastructure Fund shareholders. In
lieu thereof, the Emerging Markets Telecommunications Fund's transfer agent will
aggregate all fractional shares of the Emerging Markets Telecommunications Fund
and sell the resulting full shares on the
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NYSE at the current market price for shares of the Emerging Markets
Telecommunications 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 Emerging Markets
Infrastructure 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 losses. The
value of the assets of the Emerging Markets Infrastructure Fund to be
transferred to the Emerging Markets Telecommunications Fund shall be determined
by the Emerging Markets Telecommunications Fund pursuant to the principles and
procedures consistently utilized by the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund when valuing its own assets
and determining its own liabilities. Such valuation and determination shall be
made by the Emerging Markets Telecommunications Fund in cooperation with the
Emerging Markets Infrastructure Fund and shall be confirmed in writing by the
Emerging Markets Telecommunications Fund to the Emerging Markets Infrastructure
Fund. The net asset value per share of Emerging Markets Telecommunications Fund
Common Stock shall be determined in accordance with such procedures, and the
Emerging Markets Telecommunications Fund shall certify the computations
involved.
5.3. Issuance of Emerging Markets Telecommunications Fund Common
Stock. The Emerging Markets Telecommunications Fund shall issue to the
shareholders of the Emerging Markets Infrastructure Fund separate certificates
or share deposit receipts for the Emerging Markets Telecommunications Fund
Common Stock by delivering the certificates or share deposit receipts evidencing
ownership of the Emerging Markets Telecommunications Fund Common Stock to
BankBoston N.A., as the transfer agent and registrar for the Emerging Markets
Telecommunications Fund Common Stock.
5.4. Surrender of Emerging Markets Infrastructure Fund Stock
Certificates. With respect to any Emerging Markets Infrastructure Fund
shareholder holding certificates representing shares of the Common Stock of the
Emerging Markets Infrastructure Fund as of the Effective Date, and subject to
the Emerging Markets Telecommunications Fund being informed thereof in writing
by the Emerging Markets Infrastructure Fund, the Emerging Markets
Telecommunications Fund will not permit such shareholder to receive new
certificates evidencing ownership of the Emerging Markets Telecommunications
Fund Common Stock until such shareholder has surrendered his or her outstanding
certificates evidencing ownership of the Common Stock of the Emerging Markets
Infrastructure Fund or, in the event of lost certificates, posted adequate bond.
The Emerging Markets Infrastructure Fund will request its shareholders to
surrender their outstanding certificates representing certificates of the Common
Stock of the Emerging Markets Infrastructure Fund or post adequate bond
therefor. Dividends payable to holders of record of shares of the Emerging
Markets Telecommunications Fund as of any date after the Effective Date and
prior to the exchange of certificates by any shareholder of the Emerging Markets
Infrastructure 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 Emerging Markets Infrastructure
Fund for exchange.
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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 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 Emerging Markets Infrastructure 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 Emerging Markets Infrastructure 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
Emerging Markets Infrastructure Fund has ceased to a registered investment
company.
(b) The Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund agrees to cooperate fully with the
Emerging Markets Telecommunications Fund, and will furnish to the Emerging
Markets Telecommunications 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
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<PAGE>
to ensure that the related waiting period expires or is otherwise terminated at
the earliest possible time.
6.5. Preservation of Assets. The Emerging Markets Telecommunications
Fund agrees that it has no plan or intention to sell or otherwise dispose of the
assets of the Emerging Markets Infrastructure 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 Emerging Markets Telecommunications Fund agrees to 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 Emerging Markets Infrastructure 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 Emerging Markets Telecommunications
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 Emerging Markets Infrastructure 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 Emerging Markets Telecommunications Fund (other than
for payment of taxes) in excess of any accrual for such expenses by the Emerging
Markets Infrastructure Fund in connection with the preparation and filing of
said tax returns and Forms 1099 after the Effective Date shall be borne by the
Emerging Markets Telecommunications Fund.
6.7. Shareholder List. Prior to the Effective Date, the Emerging
Markets Infrastructure Fund shall have made arrangements with its transfer agent
to deliver to the Emerging Markets Telecommunications Fund, a list of the names
and addresses of all of the shareholders of record of the Emerging Markets
Infrastructure Fund on the Effective Date and the number of shares of Common
Stock of the Emerging Markets Infrastructure Fund owned by each such
shareholder, certified by the Emerging Markets Infrastructure 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 Emerging Markets Infrastructure Fund agrees that the (i) delisting
of the shares of the Emerging Markets Infrastructure 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.
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<PAGE>
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE EMERGING MARKETS
TELECOMMUNICATIONS FUND
The obligations of the Emerging Markets Telecommunications Fund
hereunder shall be subject to the following conditions:
7.1. Approval of Merger. This Agreement shall have been adopted by
the affirmative vote of the holders of a majority of the shares of Common Stock
of the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund issued
and outstanding and entitled to vote thereon; and the Emerging Markets
Infrastructure Fund shall have delivered to the Emerging Markets
Telecommunications Fund a copy of the resolutions approving this Agreement
adopted by its Board of Directors and shareholders, certified by its secretary.
7.2. Certificates and Statements by the Emerging Markets
Infrastructure Fund.
(a) The Emerging Markets Infrastructure 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
March 31, 2000, other than changes in its portfolio securities since that date
or changes in the market value of its portfolio securities.
(b) The Emerging Markets Infrastructure Fund shall have furnished to
the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund shall have delivered to
the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure 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
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<PAGE>
taxable year ending upon the Effective Date or that the Emerging Markets
Infrastructure 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 Emerging Markets Telecommunications Fund shall have received
an opinion of Willkie Farr & Gallagher, as counsel to the Emerging Markets
Infrastructure Fund, in form and substance reasonably satisfactory to the
Emerging Markets Telecommunications Fund and dated the Effective Date, to the
effect that (i) the Emerging Markets Infrastructure 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 Emerging Markets Infrastructure 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
Emerging Markets Infrastructure 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 Emerging Markets Infrastructure 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
Emerging Markets Infrastructure 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 Emerging Markets Infrastructure Fund is a party or by
which the Emerging Markets Infrastructure 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
Emerging Markets Infrastructure Fund; and (vii) all corporate actions required
to be taken by the Emerging Markets Infrastructure Fund to authorize this
Agreement and to effect the Merger have been duly authorized by all necessary
corporate actions on behalf of the Emerging Markets Infrastructure 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 Emerging Markets Infrastructure 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 Emerging Markets Infrastructure 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 Emerging Markets Infrastructure Fund, and (2) the prospectus included in
the N-14
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<PAGE>
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 Emerging Markets Infrastructure 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 Emerging Markets
Infrastructure 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
Emerging Markets Infrastructure Fund with regard to matters of fact and certain
certificates and written statements of governmental officials with respect to
the good standing of the Emerging Markets Infrastructure Fund and on the opinion
of Venable, Baetjer and Howard, LLP, as to matters of Maryland law.
(b) The Emerging Markets Telecommunications Fund shall have received
an opinion from Willkie Farr & Gallagher, as counsel to the Emerging Markets
Telecommunications 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 Emerging Markets Telecommunications Fund and the Emerging
Markets Infrastructure 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 Emerging Markets Infrastructure Fund as a result of the Merger
or the conversion of Emerging Markets Infrastructure Fund shares to Emerging
Markets Telecommunications Fund Common Stock except to the extent such
shareholders are paid cash in lieu of fractional shares of Emerging Markets
Telecommunications Fund in the Merger; (iii) no gain or loss will be recognized
to the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund on
the conversion of their shares into Emerging Markets Telecommunications Fund
Common Stock; (v) the tax basis of the Emerging Markets Infrastructure Fund
assets in the hands of the Emerging Markets Telecommunications Fund will be the
same as the tax basis of such assets in the hands of the Emerging Markets
Infrastructure Fund prior to the consummation of the Merger; (vi) immediately
after the Merger, the tax basis of the Emerging Markets Telecommunications Fund
Common Stock received by the shareholders of the Emerging Markets Infrastructure
Fund in the Merger will be equal, in the aggregate, to the tax basis of the
shares of the Emerging Markets Infrastructure Fund converted pursuant to the
Merger; (vii) a shareholder's holding period for the Emerging Markets
Telecommunications Fund Common Stock will be determined by including the period
for which he or she held the Common Stock of the Emerging Markets Infrastructure
Fund converted pursuant to the Merger, provided that such Emerging Markets
Infrastructure Fund shares were held as a capital asset; (viii) the Emerging
Markets Telecommunications Fund's holding period with respect to the Emerging
Markets Infrastructure Fund assets transferred will include the period for which
such assets were held by the Emerging Markets Infrastructure Fund; and (ix) the
payment of cash to the Emerging Markets Infrastructure Fund shareholders in lieu
of fractional shares of the Emerging Markets Telecommunications Fund will be
treated as though the fractional shares were distributed as part of the Merger
and then redeemed by the Emerging Markets Telecommunications Fund with the
result that the Emerging Markets Infrastructure 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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<PAGE>
7.5. Auditor's Consent and Certification. The Emerging Markets
Telecommunications 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 Emerging Markets Telecommunications Fund, to the
effect that (i) they are independent public auditors with respect to the
Emerging Markets Infrastructure 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 Emerging
Markets Infrastructure 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 Emerging Markets
Infrastructure Fund to be transferred to the Emerging Markets Telecommunications
Fund shall not include any assets or liabilities which the Emerging Markets
Telecommunications Fund, by reason of limitations in its Registration Statement
or Articles of Incorporation, may not properly acquire or assume. The Emerging
Markets Telecommunications Fund does not anticipate that there will be any such
assets or liabilities but the Emerging Markets Telecommunications Fund will
notify the Emerging Markets Infrastructure Fund if any do exist and will
reimburse the Emerging Markets Infrastructure Fund for any reasonable
transaction costs incurred by the Emerging Markets Infrastructure Fund for the
liquidation of such assets and liabilities.
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 Emerging Markets Telecommunications Fund, contemplated by the
SEC.
7.8. Approval of Exemptive Application; Regulatory Filings.
(a) The Exemptive Application shall have been approved and the
Emerging Markets Telecommunications Fund shall have received from the SEC such
orders or interpretations as Willkie Farr & Gallagher, as counsel to the
Emerging Markets Telecommunications 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 Emerging Markets Infrastructure
Fund or would prohibit the Merger.
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<PAGE>
7.10. Satisfaction of the Emerging Markets Telecommunications Fund,
Inc. All proceedings taken by the Emerging Markets Infrastructure Fund and its
counsel in connection with the Merger and all documents incidental thereto shall
be satisfactory in form and substance to the Emerging Markets Telecommunications
Fund.
7.11. Dividends. Prior to the Effective Date, the Emerging Markets
Infrastructure 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), and substantially all of its net
capital gain, if any, realized through the Effective Date.
7.12. Custodian's Certificate. The Emerging Markets Infrastructure
Fund's custodian shall have delivered to the Emerging Markets Telecommunications
Fund a certificate identifying all of the assets of the Emerging Markets
Infrastructure Fund held or maintained by such custodian as of the Valuation
Time.
7.13. Books and Records. The Emerging Markets Infrastructure Fund's
transfer agent shall have provided to the Emerging Markets Telecommunications
Fund (i) the originals or true copies of all of the records of the Emerging
Markets Infrastructure Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares of the
Emerging Markets Infrastructure 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.
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE EMERGING MARKETS
INFRASTRUCTURE FUND
The obligations of the Emerging Markets Infrastructure Fund
hereunder shall be subject to the following conditions:
8.1. Approval of Merger. This Agreement shall have been adopted, by
the affirmative vote of the holders of a majority of the shares of Common Stock
of the Emerging Markets Infrastructure 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 Emerging Markets Telecommunications Fund issued
and outstanding and entitled to vote thereon; and that the Emerging Markets
Telecommunications Fund shall have delivered to the Emerging Markets
Infrastructure 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 Emerging Markets
Telecommunications Fund.
(a) The Emerging Markets Telecommunications 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
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March 31, 2000, other than changes in its portfolio securities since that date
or changes in the market value of its portfolio securities.
(b) The Emerging Markets Telecommunications Fund shall have
furnished to the Emerging Markets Infrastructure 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 Emerging Markets Telecommunications Fund shall have
delivered to the Emerging Markets Infrastructure 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 Emerging Markets Telecommunications 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 Emerging Markets Telecommunications Fund would not
continue to qualify as a RIC for federal income tax purposes.
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 Emerging Markets Infrastructure Fund shall have received an
opinion of Willkie Farr & Gallagher, as counsel to the Emerging Markets
Telecommunications Fund, in form and substance reasonably satisfactory to the
Emerging Markets Infrastructure Fund and dated the Effective Date, to the effect
that (i) the Emerging Markets Telecommunications 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 Emerging Markets Telecommunications 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
Emerging Markets Telecommunications 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 Emerging Markets Telecommunications Fund of the Merger,
except such as may be required under the 1933 Act,
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<PAGE>
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 Emerging Markets Telecommunications 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 Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications Fund is a party or by which the Emerging Markets
Telecommunications 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 Emerging Markets
Telecommunications Fund; and (viii) all corporate actions required to be taken
by the Emerging Markets Telecommunications Fund to authorize this Agreement and
to effect the Merger have been duly authorized by all necessary corporate
actions on behalf of the Emerging Markets Telecommunications 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 Emerging
Markets Telecommunications 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, (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 Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications 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 Emerging Markets Telecommunications 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 Emerging Markets
Telecommunications Fund with regard to matters of fact and certain certificates
and written statements of governmental officials with respect to the good
standing of the Emerging Markets Telecommunications Fund and on the opinion of
Venable, Baetjer and Howard, LLP as to matters of Maryland law.
(b) The Emerging Markets Infrastructure Fund shall have received an
opinion from Willkie Farr & Gallagher and dated the Effective Date, to the
effect that for federal income
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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 Emerging Markets Telecommunications Fund and the Emerging Markets
Infrastructure 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 Emerging Markets Infrastructure Fund as a result of the Merger or on the
conversion of Emerging Markets Infrastructure shares to Emerging Markets
Telecommunications Fund Common Stock except to the extent such shareholders are
paid cash in lieu of fractional shares of Emerging Markets Telecommunications
Fund in the Merger; (iii) no gain or loss will be recognized to the Emerging
Markets Telecommunications Fund as a result of the Merger; (iv) no gain or loss
will be recognized to the shareholders of the Emerging Markets Infrastructure
Fund on the conversion of their shares into Emerging Markets Telecommunications
Fund Common Stock; (v) the tax basis of the Emerging Markets Infrastructure Fund
assets in the hands of the Emerging Markets Telecommunications Fund will be the
same as the tax basis of such assets in the hands of the Emerging Markets
Infrastructure Fund prior to the consummation of the Merger; (vi) immediately
after the Merger, the tax basis of the Emerging Markets Telecommunications Fund
Common Stock received by the shareholders of the Emerging Markets Infrastructure
Fund in the Merger will be equal, in the aggregate, to the tax basis of the
shares of the Emerging Markets Infrastructure Fund converted pursuant to the
Merger; (vii) a shareholder's holding period for the Emerging Markets
Telecommunications Fund Common Stock will be determined by including the period
for which he or she held the Common Stock of the Emerging Markets Infrastructure
Fund converted pursuant to the Merger, provided, that such Emerging Markets
Infrastructure Fund shares were held as a capital asset; (viii) the Emerging
Markets Telecommunications Fund's holding period with respect to the Emerging
Markets Infrastructure Fund assets transferred will include the period for which
such assets were held by the Emerging Markets Infrastructure Fund; and (ix) the
payment of cash to the Emerging Markets Infrastructure Fund shareholders in lieu
of fractional shares of the Emerging Markets Telecommunications Fund will be
treated as though the fractional shares were distributed as part of the Merger
and then redeemed by the Emerging Markets Telecommunications Fund with the
result that the Emerging Markets Infrastructure 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.
8.5. Auditor's Consent and Certification. The Emerging Markets
Infrastructure 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 Emerging Markets Infrastructure Fund, to the effect that (i)
they are independent public auditors with respect to the Emerging Markets
Telecommunications 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 Emerging Markets
Telecommunications 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
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effectiveness shall have been instituted or, to the knowledge of the Emerging
Markets Infrastructure Fund, contemplated by the SEC.
8.7. Approval of Exemptive Application; Regulatory Filings.
(a) The Exemptive Application shall have been approved and the
Emerging Markets Infrastructure Fund shall have received from the SEC such
orders or interpretations as Willkie Farr & Gallagher, as counsel to the
Emerging Markets Infrastructure 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 Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund or would prohibit the Merger.
(c) The Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund. All
proceedings taken by the Emerging Markets Telecommunications Fund and its
counsel in connection with the Merger and all documents incidental thereto shall
be satisfactory in form and substance to the Emerging Markets Infrastructure
Fund.
8.9. Dividends. Prior to the Effective Date, the Emerging Markets
Telecommunications 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), 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
since _______, 2000 shall be allocated equally between the Emerging Markets
Telecommunications Fund and the Emerging Markets Infrastructure 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, SEC registration fees, and NYSE listing
fees. Neither of
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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 Emerging Markets
Infrastructure Fund acknowledges and agrees that from and after the Effective
Date, the Emerging Markets Telecommunications Fund shall be entitled to
possession of all documents, books, records, agreements and financial data of
any sort pertaining to the Emerging Markets Infrastructure Fund.
11. INDEMNIFICATION
11.1. The Emerging Markets Infrastructure Fund. The Emerging Markets
Telecommunications Fund agrees to indemnify and hold harmless the Emerging
Markets Infrastructure Fund and each of the Emerging Markets Infrastructure
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 Emerging Markets Infrastructure 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 Emerging Markets Telecommunications Fund of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
11.2. The Emerging Markets Telecommunications Fund. The Emerging
Markets Infrastructure Fund agrees to indemnify and hold harmless the Emerging
Markets Telecommunications Fund and each of the Emerging Markets
Telecommunications 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 Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
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
Emerging Markets Telecommunications Fund if any of the obligations
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of the Emerging Markets Infrastructure Fund set forth in this Agreement has not
been fulfilled or waived by such Board or if the Emerging Markets Infrastructure
Fund has made a material and intentional misrepresentation herein or in
connection herewith; or (iii) by the Board of Directors of the Emerging Markets
Infrastructure Fund if any of the obligations of the Emerging Markets
Telecommunications Fund set forth in this Agreement has not been fulfilled or
waived by such Board or if the Emerging Markets Telecommunications 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 Emerging Markets Infrastructure Fund or the Emerging Markets
Telecommunications 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 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 Emerging Markets Telecommunications
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,
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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 Emerging Markets Telecommunications 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 EMERGING MARKETS TELECOMMUNICATIONS 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 Emerging
Markets Telecommunications Fund's transfer agent with respect to such shares.
The Emerging Markets Infrastructure Fund will provide the Emerging Markets
Telecommunications Fund on the Effective Date with the name of any Emerging
Markets Infrastructure Fund Shareholder who is to the knowledge of the Emerging
Markets Infrastructure 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:
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If to the Emerging Markets Infrastructure Fund:
Hal Liebes, Esq.
Senior Vice President
The Emerging Markets Infrastructure 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 Emerging Markets Telecommunications Fund:
Hal Liebes, Esq.
Senior Vice President
The Emerging Markets Telecommunications 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
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<PAGE>
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.
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 Emerging Markets Infrastructure Fund and the Emerging
Markets Telecommunications Fund; provided, however, that following the meeting
of the Emerging Markets Infrastructure Fund and Emerging Markets
Telecommunications Fund shareholders to approve the Merger, no such amendment
may have the effect of changing the provisions for determining the number of the
Emerging Markets Telecommunications Fund shares to be issued to the Emerging
Markets Infrastructure 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.
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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 EMERGING MARKETS
TELECOMMUNICATIONS FUND, INC.
By: [SEAL]
-------------------------------
Name:
-----------------------------------
Attest:
---------------------------------
Title:
---------------------------------
THE EMERGING MARKETS INFRASTRUCTURE
FUND, INC.
By: [SEAL]
-------------------------------
Name:
-----------------------------------
Attest:
---------------------------------
Title:
---------------------------------
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