EXHIBIT 99.H(i)
S&C Draft dated November 13, 1995
DEALER MANAGER AGREEMENT
November __, 1995
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The Brazil Fund, Inc., a corporation formed under the laws of the
State of Maryland (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., a corporation formed
under the laws of the State of Delaware ("▇▇▇▇▇ ▇▇▇▇▇▇"), confirm their
agreement, subject to the terms and conditions set out below, with respect to
the proposed issuance by the Company to its shareholders of rights entitling
their holders to subscribe for shares of the Company's Common Stock, par value
$.01 per share.
1. DEFINITIONS
The following terms have the following meanings when used in this
Agreement:
(a) "Acts" means the Securities Act and the Investment Company
Act collectively.
(b) "Agreement" means this Dealer Manager Agreement as originally
executed and as amended, modified, supplemented or restated from time to time.
(c) "Availability Date" has the meaning set forth in Section 8(d)
of this Agreement.
(d) "Business Day" means any day on which the NYSE is open for
trading.
(e) "Code" means the U.S. Internal Revenue Code of 1986, as
amended.
(f) "Commission" means the U.S. Securities and Exchange
Commission.
(g) "Common Stock" means the Company's Common Stock, par value
$.01 per share.
(h) "Custodian" means ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co.
(i) "Custodian Agreement" means the Custodian Agreement, dated
March 30, 1988, between the Company and the Custodian.
(j) "Effective Date" means the date of the Effective Time.
(k) "Effective Time" has the meaning set forth in Section 4(a) of
this Agreement.
(l) "Exchange Act" means the U.S. Securities Exchange Act of
1934, as amended.
(m) "Exercising Rights Holders" means Record Date Shareholders
and Rights Holders purchasing Shares in the Primary Subscription.
(n) "Expiration Date" means December 15, 1995.
(o) "Investment Advisers Act" means the U.S. Investment Advisers
Act of 1940, as amended.
(p) "Investment Company Act" means the U.S. Investment Company
Act of 1940, as amended.
(q) "Brazil" means the Federative Republic of Brazil.
(r) "Brazilian Adviser" means Banco Icatu S.A.
(s) "Manager" means ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., the Company's
investment adviser and manager.
(t) "Management Agreement" means the Investment Advisory,
Management and Administration Agreement, dated as of July 26, 1995, between the
Company and the Manager.
(u) "NYSE" means the New York Stock Exchange, Inc.
(v) "Offer" means the offer of Shares contemplated by the
Company's proposed issuance of Rights.
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(w) "Primary Subscription" means a Record Date Shareholder's
right to acquire Shares during the Subscription Period at the Subscription
Price.
(x) "Prospectus" means the form of prospectus as first filed with
the Commission pursuant to and in accordance with Rule 497(h) under the
Securities Act or (if no such filing is required) as included in the
Registration Statement.
(y) "Record Date" means November 20, 1995.
(z) "Record Date Shareholders" means the Company's shareholders
of record as of the close of business on the Record Date.
(aa) "Registration Statement" means the registration statement
relating to the Offer on Form N-2 (File No. 33-63381) under the Acts, as amended
at the Effective Time, including all information (if any) deemed to be a part of
such registration statement as of the Effective Time pursuant to Rule 430A(b)
under the Securities Act, filed by the Company with the Commission.
(bb) "Research Agreement" means the Research and Advisory
Agreement, dated July 26, 1995, between the Manager and the Brazilian Adviser.
(cc) "Rights" means the rights proposed to be issued by the
Company to Record Date Shareholders, which rights entitle their holders to
subscribe for Shares.
(dd) "Rights Holders" means the holders of Rights.
(ee) "Rules and Regulations" means the rules and regulations
adopted by the Commission under the Securities Act and/or the Investment Company
Act.
(ff) "Securities Act" means the U.S. Securities Act of 1933, as
amended.
(gg) "Shares" means an aggregate of up to 4,050,000 shares of
Common Stock for which Rights Holders may subscribe.
(hh) "Subscription Agent" means State Street Bank and Trust
Company.
(ii) "Subscription Agent Agreement" means the Subscription Rights
Distribution and Agency Agreement, dated as of November __, 1995, between the
Company and the Subscription Agent.
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(jj) "Subscription Period" means the period of time beginning on
November 20, 1995 and ending at 5:00 p.m., New York City time, on the Expiration
Date.
(kk) "Subscription Price" means the Subscription Price per Share
of $______.
2. THE OFFER
The Company is proposing to issue Rights to Record Date Shareholders,
which Rights entitle their holders to subscribe for Shares. Under the Company's
proposal, each Record Date Shareholder will be issued one Right for each full
share of Common Stock owned on the Record Date. No fractional Rights will be
issued. The Rights will entitle each Record Date Shareholder to acquire in the
Primary Subscription at the Subscription Price one Share for each three Rights
held, except that any Record Date Shareholder who is issued fewer than three
Rights will be able to subscribe for one full Share at the Subscription Price.
All Rights will be able to be exercised immediately upon receipt and until 5:00
p.m., New York City time, on the Expiration Date. Any Record Date Shareholder
who fully exercises all Rights initially issued to him (other than those Rights
that cannot be exercised because they represent the right to acquire less than
one Share) will be entitled to subscribe for, subject to allotment, Shares that
are not otherwise subscribed for by Exercising Rights Holders on the Primary
Subscription. Additional terms and conditions of the Offer are set out in the
Registration Statement.
3. APPOINTMENT OF DEALER MANAGER
The Company appoints ▇▇▇▇▇ ▇▇▇▇▇▇ as the exclusive dealer manager in
connection with the Offer and ▇▇▇▇▇ ▇▇▇▇▇▇ accepts that appointment. The
Company also authorizes ▇▇▇▇▇ ▇▇▇▇▇▇ to form and manage a group of securities
dealers (each, a "Selling Group Member," and, collectively, the "Selling Group")
to solicit the exercise of Rights and sell Shares purchased by ▇▇▇▇▇ ▇▇▇▇▇▇ from
the Company through the exercise of Rights. ▇▇▇▇▇ ▇▇▇▇▇▇ represents and
warrants that it is a broker-dealer registered under the Exchange Act.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, ▇▇▇▇▇ ▇▇▇▇▇▇
that:
(a) A registration statement (No. 33-63381) including a form of
prospectus relating to the Offer has been filed with the Commission and either
(i) has been declared effective under the Securities Act and is not proposed to
be amended or
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(ii) is proposed to be amended by amendment or post-effective amendment. If the
Company does not propose to amend such registration statement and if any post-
effective amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. For
purposes of this Agreement, "Effective Time" means (i) if the Company has
advised ▇▇▇▇▇ ▇▇▇▇▇▇ that is does not propose to amend such registration
statement, the date and time as of which such registration statement, or the
most recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission, or (ii) if the Company has advised ▇▇▇▇▇ ▇▇▇▇▇▇ that it proposes to
file an amendment or post-effective amendment to such registration statement,
the date and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared effective
by the Commission.
(b) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement conformed
in all respects to the requirements of the Acts and the Rules and Regulations
and did not include 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 (ii) on the date of this Agreement, the Registration
Statement conforms, and at the time of filing of the Prospectus pursuant to Rule
497(h) under the Securities Act, the Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Acts and the Rules and
Regulations, and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. If the Effective Time is subsequent to the execution and delivery
of this Agreement: on the Effective Date, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Acts and the
Rules and Regulations, and neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading.
The two preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus based upon written information furnished to
the Company by ▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use therein.
(c) Price Waterhouse LLP, whose report appears in the Prospectus, are
independent accountants as required by the Acts and the Rules and Regulations
with respect to the Company. The financial statements and financial highlights
(including the related notes) included in the Registration Statement or the
Prospectus present fairly the financial position, results of operations, changes
in net assets and financial highlights of the Company at the dates and for the
periods indicated therein
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and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland, with full
power and authority to own or lease its properties and conduct its business as
described in the Prospectus and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the character of
the business conducted by it or the location of the properties owned or leased
by it make such qualification necessary.
(e) All of the outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and nonassessable, with no
personal liability attaching to the ownership thereof; the Offer, the Rights and
the Shares have been duly authorized, and the Rights and the Shares, upon
issuance and delivery and, in the case of the Shares, payment therefor, as
described in the Registration Statement and the Prospectus, will be validly
issued, fully paid and nonassessable, with no personal liability attaching to
the ownership thereof. Except for the Rights, there are no preemptive rights or
other rights to subscribe for or to purchase, or any restriction upon the voting
or transfer of, any shares of Common Stock (including the Shares) pursuant to
the Company's Articles of Incorporation, by-laws or other governing documents or
any agreement or other instrument to which the Company is a party or by which it
may be bound. Neither the filing of the Registration Statement nor the Offer as
contemplated by this Agreement and the Subscription Agent Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of Common Stock or other securities
of the Company. The capitalization of the Company as of December 31, 1994 is as
set forth in the Prospectus, and the Rights and the Shares conform to the
descriptions thereof contained in the Prospectus.
(f) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse change in,
or adverse development which materially affects, the condition (financial or
other), results of operation, business or prospects, of the Company from the
date as of which information is given in the Prospectus.
(g) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company is a party or to which any property
of the Company is subject or which is pending or, to the knowledge of the
Company, contemplated against the Company which might result in any material
adverse change in the condition (financial or other), results of operations,
business or prospects of the Company or which is required to be disclosed in the
Prospectus.
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(h) The Company is not in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject which
violation might have a material adverse effect on the condition (financial or
other), results of operation, business or prospects of the Company.
(i) The Subscription Agent Agreement has been duly authorized,
executed and delivered by the Company and, assuming due authorization, execution
and delivery by the Subscription Agent, constitutes the valid and binding
agreement of the Company and is enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights and to
general equity principles.
(j) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement of the Company,
and is enforceable against the Company in accordance with its terms subject, as
to enforcement, to bankruptcy, insolvency, reorganization or other laws relating
to or affecting creditors' rights and to general equitable principles.
(k) The Company is not, or with the giving of notice or lapse of time
or both would not be, in violation of or in default under, nor will the
execution or delivery hereof and of the Subscription Agent Agreement or
consummation of the transactions contemplated hereby or by the Subscription
Agent Agreement, including, without limitation, the distribution of the Rights
and the allotment, issue and sale of the Shares, result in a violation of, or
constitute a default under, the Articles of Incorporation or by-laws of the
Company, or any agreement, indenture or other instrument, to which the Company
is a party or by which it is bound, or to which any of its properties is
subject, nor will the performance by the Company of its obligations hereunder or
under the Subscription Agent Agreement violate any law, rule, administrative
regulation or decree of any court, or any governmental agency or body having
jurisdiction over the Company, or any of its properties, or result in the
creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company. Except for permits and similar authorizations
required under the Acts and the securities or "Blue Sky" laws of certain
jurisdictions and for such permits and authorization which have been obtained,
no consent, approval, authorization or order of any court, governmental agency
or body or financial institution is required in connection with the consummation
of the transactions contemplated by this Agreement or the Subscription Agent
Agreement.
(l) The Rights are duly authorized for listing, subject to official
notice of issuance, on the NYSE and are, or as soon as practicable after the
date of this Agreement, will be, admitted to trading on the NYSE.
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(m) The Shares are duly authorized for listing, subject to official
notice of issuance, on the NYSE and, as soon as practicable after the date of
this Agreement, will be admitted to trading on the NYSE.
(n) The Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or which has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the Offer,
provided that the Company makes no representation with respect to any
transactions by ▇▇▇▇▇ ▇▇▇▇▇▇ or any other broker or dealer unaffiliated with the
Company, the Manager or the Brazilian Adviser to stabilize the price of the
shares of Common Stock in connection with the Offer.
(o) The Company is duly registered with the Commission under the
Investment Company Act as a closed-end non-diversified management investment
company.
5. REPRESENTATIONS AND WARRANTIES OF THE MANAGER
The Manager represents and warrants to, and agrees with, ▇▇▇▇▇ ▇▇▇▇▇▇
that:
(a) The Manager has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to conduct its business as described in the
Prospectus.
(b) The Manager is duly registered as an investment adviser under the
Investment Advisers Act and is not prohibited by the Investment Advisers Act or
the Investment Company Act, or the rules and regulations under such acts, from
acting as Manager for the Company as contemplated by the Prospectus.
(c) This Agreement has been duly authorized, executed and delivered
by the Manager.
(d) The Management Agreement and the Research Agreement have each
been duly authorized, executed and delivered on behalf of the Manager and each
constitutes a valid and binding obligation of the Manager enforceable in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors'
rights generally and to general equity principles; and neither the execution and
delivery of this Agreement, the Management Agreement or the Research Agreement
nor the performance by the Manager of its obligations thereunder will conflict
with or result in a breach or violation of any of the terms and provisions of
the charter or By-laws of the Manager
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or any law, order, rule or regulation applicable to the Manager of any United
States jurisdiction, court, federal or state regulatory body, administrative
agency or other governmental body, stock exchange or securities association
having jurisdiction over the Manager or its properties or operations, or, to the
best knowledge of the Manager after reasonable investigation, constitute, with
or without giving notice or lapse of time or both, a default under, any
agreement or instrument to which the Manager is a party or by which the Manager
or to which any of the properties of the Manager is subject.
(e) All written information furnished by the Manager specifically for
use in the Registration Statement and Prospectus, including, without limitation,
the description of the Manager, does not, and on the Expiration Date will not,
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the Registration Statement and Prospectus not misleading.
(f) There has not, since the date of the Prospectus, been any
material adverse change, or any development reasonably likely to cause a
material adverse change, in the Manager's ability to perform its obligations
under this Agreement or under the Management Agreement.
6. SOLICITATION OF RIGHTS EXERCISE; FINANCIAL ADVISORY SERVICES
(a) On the basis of the representations and warranties, and subject
to the terms and conditions, set forth in this Agreement:
(i) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to (A) solicit, in accordance with the Acts,
the Exchange Act, the Rules and Regulations and its customary practice, the
exercise of the Rights, subject to the terms and conditions of this Agreement,
the Subscription Agent Agreement and the procedures described in the
Registration Statement; and (B) form and manage the Selling Group to (i)
solicit, in accordance with the Acts, the Exchange Act, the Rules and
Regulations and its customary practice, the exercise of the Rights, subject to
the terms and conditions of this Agreement, the Subscription Agent Agreement and
the procedures described in the Registration Statement, and (ii) sell Shares
purchased by ▇▇▇▇▇ ▇▇▇▇▇▇ from the Company as provided herein. No securities
dealer shall be considered a Selling Group Member until it shall have entered
into a Selling Group Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇ in substantially the form of
Exhibit D hereto.
(ii) ▇▇▇▇▇ ▇▇▇▇▇▇ is authorized to buy and exercise Rights and to
sell Shares to the public or to Selling Group Members at the offering price set
by ▇▇▇▇▇ ▇▇▇▇▇▇ from time to time. Sales of Shares by ▇▇▇▇▇ ▇▇▇▇▇▇ or Selling
Group Members shall be at not more than the offering price set by ▇▇▇▇▇ ▇▇▇▇▇▇
from time to time. Such offering price shall not be increased more than once
during any
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calendar day and at the time any such price is set shall not be less than the
Subscription Price specified in the Prospectus nor more than the greater of the
last sale or the current offering price on the NYSE, plus an exchange
commission.
(iii) the Company agrees to furnish, or cause to be furnished, to
▇▇▇▇▇ ▇▇▇▇▇▇, lists, or copies of those lists, showing the names and addresses
of, and number of Shares held by, Record Date Shareholders as of the Record
Date, and to use its best efforts to advise ▇▇▇▇▇ ▇▇▇▇▇▇, or cause it to be
advised, on each Business Day during the Subscription Period as to any transfers
of Rights, and ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to use such information only in connection
with the Offer, and not to furnish the information to any other person except
for Selling Group Members, or other securities brokers and dealers that ▇▇▇▇▇
▇▇▇▇▇▇ has requested to solicit exercises of Rights;
(iv) the Company will arrange for the Subscription Agent (A) to
inform ▇▇▇▇▇ ▇▇▇▇▇▇ orally, on each Business Day during the Subscription Period
(to be followed by written confirmation), as to the number of Rights that have
been exercised since its previous daily report to ▇▇▇▇▇ ▇▇▇▇▇▇ under the
provision of this Section 6(a)(iv), (B) not later than 10:00 a.m. (New York City
time) on December __, 1995, to provide ▇▇▇▇▇ ▇▇▇▇▇▇ with a written statement as
to the total number of Rights exercised (separately setting forth the number of
Rights exercised by Record Date Shareholders), (C) to sell any Rights received
for resale from Record Date Shareholders exclusively to or through ▇▇▇▇▇ ▇▇▇▇▇▇,
which may, at its election, purchase such Rights as principal or act as Agent
for such resales and (D) to issue shares of Common Stock upon ▇▇▇▇▇ Barney's
exercise of Rights no later than the close of business on the business day
following the day that full payment for such shares has been received by the
Agent.
(v) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to notify the Company on or prior to December
___, 1995 of the Shares purchased by ▇▇▇▇▇ ▇▇▇▇▇▇ through the exercise of Rights
and sold to the public or to each Selling Group Member and the total amount of
the commissions payable by the Fund pursuant to Section 7 of this Agreement in
connection with such sales.
(b) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to provide to the Company, in addition to the
services described in paragraph (a) of this Section 6, financial advisory
services in connection with the Offer.
(c) The Company and ▇▇▇▇▇ ▇▇▇▇▇▇ agree that ▇▇▇▇▇ ▇▇▇▇▇▇ and each
Selling Group Member is an independent contractor with respect to its
solicitation of the exercise of Rights contemplated by this Agreement and the
performance of financial advisory services to the Company contemplated by this
Agreement, and ▇▇▇▇▇ ▇▇▇▇▇▇ represents and warrants that it is not a partner or
agent of any other
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securities broker, dealer or other person soliciting the exercise of Rights as
contemplated by this Agreement, or of the Company or any of its affiliates.
(d) In rendering the services contemplated by this Agreement, ▇▇▇▇▇
▇▇▇▇▇▇ and the Selling Group Members agree not to make any representations, oral
or written, to any shareholders or prospective shareholders of the Company that
are not contained in the Prospectus, unless previously authorized to do so in
writing by the Company.
(e) In rendering the services contemplated by this Agreement, neither
▇▇▇▇▇ ▇▇▇▇▇▇ nor any Selling Group Member will be subject to any liability to
the Company, the Manager, the Brazilian Adviser or any of their affiliates, for
any act or omission on the part of any securities broker or dealer (other than
itself or any of its affiliates) or any other person, and neither ▇▇▇▇▇ ▇▇▇▇▇▇
nor any Selling Group Member will be liable for its own acts or omissions in
performing its obligations under this Agreement, except for any losses, claims,
damages, liabilities and expenses that resulted from any acts or omissions
undertaken or omitted to be taken by ▇▇▇▇▇ ▇▇▇▇▇▇ or a Selling Group Member
through its gross negligence or willful misconduct.
7. DEALER MANAGER AND SOLICITATION FEES
The Company agrees to pay in New York Clearing House (next day) funds
on December __, 1995:
(a) to ▇▇▇▇▇ ▇▇▇▇▇▇, as compensation for its services to the Company
as financial adviser in connection with the Offer, a fee equal to an amount
computed by multiplying (i) .01, by (ii) the aggregate number of Shares
purchased in the Offer, by (iii) the Subscription Price;
(b) to ▇▇▇▇▇ ▇▇▇▇▇▇ for its own account a fee equal to an amount
computed by multiplying (i) .025, by (ii) the sum of the number of Shares
purchased pursuant to each subscription form relating to the Rights upon which
▇▇▇▇▇ ▇▇▇▇▇▇ is designated (other than Shares purchased by ▇▇▇▇▇ ▇▇▇▇▇▇ through
the exercise of Rights and sold to the public or to Selling Group Members) plus
the number of Shares sold by ▇▇▇▇▇ ▇▇▇▇▇▇ to the public as indicated in the
notice provided by ▇▇▇▇▇ ▇▇▇▇▇▇ to the Fund pursuant to Section 6(a)(v) of this
Agreement, by (iii) the Subscription Price;
(c) to ▇▇▇▇▇ ▇▇▇▇▇▇ for the account of each Selling Group Member a
fee equal to an amount computed by multiplying (i) .025, by (ii) the sum of the
number of Shares purchased pursuant to each subscription form relating to the
Rights upon which the Selling Group Member is designated plus the number of
Shares sold
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by ▇▇▇▇▇ ▇▇▇▇▇▇ to such Selling Group Member as indicated in the notice provided
by ▇▇▇▇▇ ▇▇▇▇▇▇ to the Fund pursuant to Section 6(a)(v) of this Agreement, by
(iii) the Subscription Price;
(d) to each securities broker or dealer who has executed the
Company's Soliciting Dealer Agreement (other than ▇▇▇▇▇ ▇▇▇▇▇▇ or any Selling
Group Member) designated on any subscription form related to the Rights ("Listed
Broker") a fee equal to an amount computed by multiplying (i) .005, by (ii) the
number of Shares purchased pursuant to each subscription form upon which the
Listed Broker is designated, by (iii) the Subscription Price, provided that the
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aggregate fees paid to any Listed Broker (other than a Listed Broker who is
registered as a specialist in the Rights with the NYSE and who has been approved
by the NYSE to act as such during the Subscription Period) may not exceed the
product of (A) .50% of the Subscription Price per Share, times (B) the aggregate
number of shares of Common Stock held in such Listed Broker's participant
accounts with The Depository Trust Company on the Record Date divided by _____;
and
(e) to ▇▇▇▇▇ ▇▇▇▇▇▇ a fee equal to an amount computed by multiplying
(i) .025, by (ii) the number of Shares purchased pursuant to each subscription
form upon which neither ▇▇▇▇▇ ▇▇▇▇▇▇ nor any Selling Group Member or Listed
Broker is designated plus the number of Shares purchased pursuant to
subscription forms upon which a Listed Broker is designated but which are in
excess of the limit set forth in clause (B) of the proviso in paragraph (d) of
this Section 7, by (iii) the Subscription Price.
8. COVENANTS OF THE COMPANY
The Company agrees:
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 497(h) under the Securities Act not
later than the earlier of (a) the second business day following execution and
delivery of this Agreement or (b) the fifteenth business day after the Effective
Date.
The Company will advise ▇▇▇▇▇ ▇▇▇▇▇▇ promptly of any such filing
pursuant to Rule 497(h).
(b) The Company will advise ▇▇▇▇▇ ▇▇▇▇▇▇ promptly of any proposal to
amend or supplement the registration statement as filed, or the related
prospectus, and will not effect such amendment or supplementation without ▇▇▇▇▇
Barney's consent; the Company will also advise ▇▇▇▇▇ ▇▇▇▇▇▇ promptly of the
effectiveness of the Registration Statement (if the Effective Time is subsequent
to the execution and
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delivery of this Agreement) and of any amendments or supplementation of the
Registration Statement or the Prospectus, and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement, and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If at any time when a prospectus relating to the Offer is
required to be delivered under the Securities Act, any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact, or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Acts, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its security
holders an earnings statement covering a period of at least twelve months
beginning after the effective date of the Registration Statement which will
satisfy the provisions of Section 11(a) of the Securities Act. For the purpose
of the preceding sentence "Availability Date" means the 60th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to ▇▇▇▇▇ ▇▇▇▇▇▇ copies of the
Registration Statement (one of which will be signed and will include all
exhibits), the Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as ▇▇▇▇▇ ▇▇▇▇▇▇
requests.
(f) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, and will reimburse the Dealer Manager (i)
for its out-of-pocket expenses (including fees and disbursements of counsel) up
to an aggregate of $100,000 and (ii) for any reasonable expenses (including
reasonable fees and disbursements of counsel) incurred by it in connection with
qualification of the Rights and the Shares under the securities law of the
jurisdictions as provided in paragraph (g) of this Section 8 and the printing of
memoranda relating thereto, and for the filing fee of the National Association
of Securities Dealers, Inc. relating to the Rights and the Shares. If this
Agreement is terminated pursuant to Section 10 or if for any reason the issuance
of the Rights and the sale of the Shares is not consummated, the Company shall
not be required to reimburse ▇▇▇▇▇ ▇▇▇▇▇▇ for its expenses pursuant to Section
8(f)(i). ▇▇▇▇▇ ▇▇▇▇▇▇ will be entitled to the payment of
-13-
any fees pursuant to Section 7 earned with respect to Shares purchased upon the
exercise of Rights prior to the date of any termination and to Shares purchased
pursuant to the Over-Subscription Privilege, as defined in the Registration
Statement, by holders who exercised such Rights prior to such date.
(g) To use every reasonable effort in cooperating with ▇▇▇▇▇ ▇▇▇▇▇▇
to permit the distribution of the Rights and the offer and sale of the Shares
under the securities laws of the United States (including any state, territory
or possession and the District of Columbia) for so long as necessary for the
distribution of the Rights and the Shares, provided, however, that the Company
shall not be obligated to file any general consent to service of process, or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not now so qualified.
(h) During the period of five years hereafter, the Company will
furnish to ▇▇▇▇▇ ▇▇▇▇▇▇, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the Company
will furnish to ▇▇▇▇▇ ▇▇▇▇▇▇ (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission under the
Investment Company Act or the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as ▇▇▇▇▇ ▇▇▇▇▇▇
may reasonably request.
(i) To advise ▇▇▇▇▇ ▇▇▇▇▇▇ promptly of any action by the NYSE
rejecting, suspending or terminating the application for the listing of, or the
listing of, the Rights or the Shares, as the case may be.
9. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless ▇▇▇▇▇ ▇▇▇▇▇▇
and each person, if any, who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of the
Securities Act against any losses, claims, damages or liabilities, joint or
several, to which ▇▇▇▇▇ ▇▇▇▇▇▇ or such controlling person may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse
▇▇▇▇▇ ▇▇▇▇▇▇ and each such controlling person for any legal or other expenses
reasonably incurred by ▇▇▇▇▇ ▇▇▇▇▇▇ or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
-------- -------
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in
-14-
any of such documents in reliance upon and in conformity with written
information furnished to the Company by ▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use
therein, (ii) any failure of the Company to consummate the Offer, including any
failure of the Company to issue the Rights or issue and sell the Shares, (iii)
any action taken or omitted to be taken by ▇▇▇▇▇ ▇▇▇▇▇▇ with the consent of the
Company, (iv) any action taken or omitted to be taken by the Company, and/or the
Manager and/or the Brazilian Adviser, (v) any breach by the Company of any
representation or warranty, or any failure by the Company and/or the Manager to
comply with any agreement or covenant contained in this Agreement or (vi) any of
the other transactions contemplated by the Offer or by ▇▇▇▇▇ Barney's
performance of its obligations under this Agreement, and will reimburse ▇▇▇▇▇
▇▇▇▇▇▇ and each person, if any, who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of
the Securities Act for any legal or other expenses reasonably incurred by ▇▇▇▇▇
▇▇▇▇▇▇ or such controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to indemnify and hold harmless the Company
and its directors, each of the Company's officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use therein; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in
addition to any liability ▇▇▇▇▇ ▇▇▇▇▇▇ may otherwise have.
(c) The Manager agrees to indemnify and hold harmless ▇▇▇▇▇ ▇▇▇▇▇▇
and each person, if any, who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of the
Securities Act, against any losses, claims, damages or liabilities to which
▇▇▇▇▇ ▇▇▇▇▇▇ or such controlling person of ▇▇▇▇▇ ▇▇▇▇▇▇ may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or
-15-
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by the Manager specifically for use therein; and will
reimburse any legal or other expenses reasonably incurred by ▇▇▇▇▇ ▇▇▇▇▇▇ or
such controlling person of ▇▇▇▇▇ ▇▇▇▇▇▇ in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability the Manager may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than the
reasonable costs of investigation. No indemnifying party shall be liable under
the foregoing indemnity agreement in respect of any compromise or settlement of
any such action without its consent, which consent shall not be unreasonably
delayed or withheld. If settlement is made with the consent of the indemnifying
party, such indemnifying party shall indemnify and hold harmless the indemnified
party against any loss or liability incurred by reason of such settlement.
(e) If the indemnification provided for in this Section is
unavailable, for any reason other than as specified therein, to hold harmless an
indemnified party under subsection (a), (b) or (c) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and ▇▇▇▇▇ ▇▇▇▇▇▇
on the other from the Offer. If the allocation
-16-
provided by the immediately preceding sentence is not permitted by applicable
law in the case of a claim for contribution by an indemnified party under
subsection (a) above, then the Company and the Manager shall each contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) above in such
proportion as is appropriate to reflect not only the relative benefits referred
to in the immediately preceding sentence but also the relative fault of the
Company, the Manager and ▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. If the allocation provided by
the second preceding sentence is not permitted by applicable law in the case of
a claim for contribution by an indemnified party under subsection (b) above,
then ▇▇▇▇▇ ▇▇▇▇▇▇ shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (b) above in such proportion as is appropriate to
reflect not only the relative benefits referred to in the second preceding
sentence but also the relative fault of the Company on the one hand and ▇▇▇▇▇
▇▇▇▇▇▇ on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and ▇▇▇▇▇ ▇▇▇▇▇▇ on the other shall be deemed to be in
the same proportion as the total net proceeds from the subscription for the
Shares (before deducting expenses) received by the Company bear to the total
fees received by ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to Section 7 of this Agreement with
respect to the Offer. The relative fault of the Company and ▇▇▇▇▇ ▇▇▇▇▇▇ shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or ▇▇▇▇▇ ▇▇▇▇▇▇
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
relative fault of the Manager shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to any negligence, recklessness or
willful misfeasance by the Manager in its performance of, or its failure to
perform, its obligations to the Company under the Management Agreement, and the
Manager shall not be liable for contribution under this subsection (e) in the
absence of such negligence, recklessness or willful misfeasance. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in this subsection (e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), ▇▇▇▇▇ ▇▇▇▇▇▇ shall not be required to contribute any amount in
excess of the amount by which the total fees received by ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant
to Section 7 of this Agreement exceeds the amount of any damages that ▇▇▇▇▇
▇▇▇▇▇▇ has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty
-17-
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) The obligations of the Company and the Manager under this Section
shall be in addition to any liability which the Company or the Manager may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of the Securities
Act; and the obligations of ▇▇▇▇▇ ▇▇▇▇▇▇ under this Section shall be in addition
to any liability which ▇▇▇▇▇ ▇▇▇▇▇▇ may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each officer
of the Company who has signed the Registration Statement and to each person, if
any, who controls the Company within the meaning of the Securities Act.
(g) ▇▇▇▇▇ ▇▇▇▇▇▇ confirms that the statements with respect to the
public offering of the Rights and Shares set forth in the paragraph immediately
following the table appearing on the cover page of, and in the fifth and sixth
paragraphs under the caption "The Offer -- Distribution Arrangements" in the
Prospectus, and the stabilization legend on the inside cover of the Prospectus,
are correct and constitute the only information furnished in writing to the
Company by ▇▇▇▇▇ ▇▇▇▇▇▇ for inclusion in the Registration Statement and the
Prospectus.
(h) The Manager confirms that the statements set forth in the
penultimate sentence under the caption "Use of Proceeds" and under the caption
"Investment Advisers and Administrator--The Investment Manager" in the
Prospectus are correct and constitute the only information furnished in writing
to the Company by the Manager for inclusion in the Registration Statement and
the Prospectus.
10. TERMINATION
▇▇▇▇▇ ▇▇▇▇▇▇ may terminate this Agreement, in its absolute discretion,
by notice given to and received by the Company prior to the issuance of the
Rights, or if (a) the Company or the Manager has failed, refused or been unable
to perform any material agreement on its part to be performed under this
Agreement, (b) there has been, since the dates as of which information is given
in the Registration Statement, any material adverse change in the net asset
value of the Company or the tax, exchange control or other laws or regulations
applicable to the Company in Brazil or the United States, the effect of which,
in the reasonable judgment of ▇▇▇▇▇ ▇▇▇▇▇▇, renders it impracticable to proceed
with the solicitation of the exercise of Rights, or (c) any other condition of
▇▇▇▇▇ Barney's obligations under this Agreement is not fulfilled. Any
termination of this Agreement pursuant to this Section 10 will be without
liability on the part of the Company, the Manager or ▇▇▇▇▇ ▇▇▇▇▇▇ except as
otherwise provided in Section 8(f), Section 9 and/or Section 12 of this
Agreement.
-18-
Termination of this Agreement by ▇▇▇▇▇ ▇▇▇▇▇▇ will not preclude the Company from
consummating the Offer at its discretion.
11. CONDITIONS OF ▇▇▇▇▇ BARNEY'S OBLIGATIONS
The obligations of ▇▇▇▇▇ ▇▇▇▇▇▇ to perform and to continue to perform
as Dealer Manager under this Agreement will at all times be subject to the
accuracy, when made and at all times during the Offer and the Subscription
Period, including any extension thereof, of the representations and warranties
of the Company herein, to the accuracy of the statements of the officers of the
Company and Manager made pursuant to the provisions hereof, to the performance
by the Company and the Manager of their respective obligations hereunder and to
each of the following additional conditions precedent:
(a) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to the
Effective Time), of Price Waterhouse LLP confirming that they are independent
accountants within the meaning of the Acts and the Rules and Regulations and
stating in effect that:
(i) in their opinion the financial statements including the schedules
audited by them and included in the Registration Statement comply in form
in all material respects with the applicable accounting requirements of the
Acts and the related published Rules and Regulations as applicable to Form
N-2;
(ii) on the basis of a reading of the latest available unaudited
financial information of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and a reading
of the minutes of the board of directors meetings, nothing came to their
attention that caused them to believe that, at a specified date not more
than five days prior to the date of this Agreement, there was any change in
the Common Stock, any increase in long-term debt of the Company or any
decrease in net assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; except in all cases for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or they shall state any specific changes or decreases; and
(iii) they have compared certain dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained in the
Registration Statement, which have been specified by the Dealer Manager, to
-19-
the appropriate accounts in the Company's accounting records subject to the
internal controls of the Company's accounting system and to schedules
prepared by the Company therefrom and have found such dollar amounts,
percentages and other financial information to be in agreement. The Dealer
Manager will inform Price Waterhouse LLP as to which amounts and
information shall be subject to the comparison described in this subsection
(iii).
For purposes of this subsection, if the Effective Time is subsequent
to the execution and delivery of this Agreement, "Registration Statement" shall
mean the registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to the Effective Time, and
"Prospectus" shall mean the prospectus included in the Registration Statement.
(b) If the Effective Time is not prior to execution and delivery of
this Agreement, the Effective Time shall have occurred not later than 10:00
P.M., New York City Time, on the date of this Agreement, or such later date as
shall have been consented to by ▇▇▇▇▇ ▇▇▇▇▇▇. If the Effective Time is prior to
the execution and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 8(a) of this Agreement. At or before the date of this Agreement, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Company, the Manager or ▇▇▇▇▇ ▇▇▇▇▇▇, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company which, in the judgment of ▇▇▇▇▇ ▇▇▇▇▇▇, materially impairs the
investment quality of the Shares, (ii) any suspension or limitation of trading
in securities generally on the NYSE, the Sao Paulo Stock Exchange or the Rio de
Janeiro Stock Exchange, or any setting of minimum prices for trading on either
of such exchanges, or any suspension of trading of the Common Stock of the
Company on any exchange or in the over-the-counter market; (iii) any banking
moratorium declared by federal, New York or Brazilian authorities; (iv) any
outbreak or escalation of major hostilities in which the United States or Brazil
is involved, any declaration of war by Congress or Brazil or any other
substantial U.S. or Brazilian national or international calamity or emergency
if, in the judgment of ▇▇▇▇▇ ▇▇▇▇▇▇ the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with the solicitation of the exercise of the Rights; or (v) any material
adverse change in general economic, political or financial conditions that, or
any international conditions the effect of which on the financial markets in the
United States, in the
-20-
judgment of ▇▇▇▇▇ ▇▇▇▇▇▇, makes it impractical or inadvisable to proceed with
the solicitation of the exercise of the Rights.
(d) The Rights have been listed on the NYSE no later than the opening
of trading on the NYSE on the first full day of trading after the date of this
Agreement and admitted for trading on the NYSE no later than the opening of
trading on the NYSE on the first full day of trading after the date of this
Agreement.
(e) The Comissao de Valores Mobiliarios shall not have issued any
order rescinding their authorization for the Company to issue the Shares.
(f) On the date of this Agreement, there shall have been furnished to
▇▇▇▇▇ ▇▇▇▇▇▇ an opinion of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Company, dated
the date of this Agreement, and addressed to ▇▇▇▇▇ ▇▇▇▇▇▇, to the effect set
forth in Exhibit A to this Agreement.
(g) On the date of this Agreement, there shall have been furnished to
▇▇▇▇▇ ▇▇▇▇▇▇ an opinion of Counsel for the Manager, dated the date of this
Agreement, and addressed to ▇▇▇▇▇ ▇▇▇▇▇▇, to the effect set forth in Exhibit B
to this Agreement.
(h) On the date of this Agreement, there shall have been furnished to
▇▇▇▇▇ ▇▇▇▇▇▇ an opinion of ▇▇▇▇▇▇▇▇ Neto, Brazilian counsel for the Company,
dated the date of this Agreement, and addressed to ▇▇▇▇▇ ▇▇▇▇▇▇, to the effect
set forth in Exhibit C to this Agreement.
(i) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Dealer Manager, such opinion or opinions, dated the date of this
Agreement, with respect to the incorporation of the Company, the validity of the
Shares, the Registration Statement, the Prospectus, and other related matters as
▇▇▇▇▇ ▇▇▇▇▇▇ may require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(j) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received certificates of the Chairman,
President or any Vice-President and a principal financial or accounting officer
of the Company, and of the President and any Vice-President or any two Vice-
Presidents of the Manager, each dated the date of this Agreement, in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that each such party has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the date of
this Agreement, and, in the case of the certificate of officers of the Company,
that the representations and warranties of the Company in this Agreement are
true and correct as of such date, that no stop
-21-
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are contemplated by
the Commission, and that, subsequent to the date of the balance sheet in the
Prospectus, there has been no material adverse change in the financial position
or results of operation of the Company except as set forth or contemplated in
the Prospectus or as described in such certificate.
The Company and the Manager will furnish ▇▇▇▇▇ ▇▇▇▇▇▇ with such conformed copies
of such opinions, certificates, letters and documents as ▇▇▇▇▇ ▇▇▇▇▇▇ reasonably
requests.
12. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS
The respective indemnities, agreements, representations, warranties,
and other statements of the Company and the Manager or their respective officers
and of ▇▇▇▇▇ ▇▇▇▇▇▇ set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of termination of this Agreement, and
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇ or the Company and the Manager or any of their
respective officers or directors or any controlling person, and will survive
delivery of the Rights and the Shares. If this Agreement is terminated pursuant
to Section 10 or if for any reason the issuance of the Rights and the sale of
Shares is not consummated, the Company shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 8(f) and the respective
obligations of the Company and the Manager and ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to Section
9 shall remain in effect.
13. NOTICES
All communications hereunder will be in writing and, if sent to ▇▇▇▇▇
▇▇▇▇▇▇ will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: __________________, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President, or if
sent to the Manager, will be mailed, delivered or telegraphed and confirmed to
it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President.
14. SUCCESSORS
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers and directors
and controlling persons referred to in Section 9, and no other person will have
any right or obligation hereunder.
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15. APPLICABLE LAW
This Agreement will be governed by, and construed in accordance with,
the laws of the State of New York applicable to contacts made and to be
performed within the State of New York.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts will each be
deemed to be an original but all such counterparts will together constitute one
and the same instrument.
* * * * *
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If the foregoing correctly sets forth the agreement among the Company, the
Manager and ▇▇▇▇▇ ▇▇▇▇▇▇, please indicate ▇▇▇▇▇ Barney's acceptance in the space
provided for that purpose below, whereupon it will become a binding agreement
among the Company, the Manager and ▇▇▇▇▇ ▇▇▇▇▇▇ in accordance with its terms.
Very truly yours,
THE BRAZIL FUND, INC.
By: ______________________________________
Name:
Title:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.,
as Manager
By: ______________________________________
Name:
Title:
Accepted as of the date
first above written:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ________________________________
Name:
Title:
-24-
EXHIBIT A
Form of Opinion of Debevoise & ▇▇▇▇▇▇▇▇
---------------------------------------
Debevoise & ▇▇▇▇▇▇▇▇ is of the opinion that:
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Maryland,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in New York, and
in all other United States jurisdictions in which it owns or leases
substantial properties or in which the conduct of its business requires
such qualification except where failure to so qualify would not have a
material adverse effect on the business of the Company.
(2) All of the outstanding shares of the Common Stock of the Company
have been duly authorized, validly issued, fully paid and nonassessable;
the Offer, the Rights and the Shares have been duly authorized, and the
Rights and the Shares, upon issuance and delivery and, in the case of the
Shares, payment therefor, as described in the Registration Statement and
the Prospectus, will be, validly issued, fully paid and nonassessable; the
Rights conform to the statements concerning them included in the
Prospectus; the Shares conform to the description thereof contained under
the caption "Common Stock" in the Prospectus; the Rights are duly
authorized for listing, subject to official notice of issuance, on the NYSE
and are, or as soon as practicable after the date of this Agreement, will
be, admitted to trading on the NYSE; the Shares are duly authorized for
listing, subject to official notice of issuance, on the NYSE and, as soon
as practicable after the date of this Agreement, will be admitted to
trading on the NYSE and are registered under the Exchange Act; and the
stockholders of the Company have no preemptive rights (except for the
Rights) with respect to the Shares.
(3) Each of this Agreement and the Subscription Agent Agreement has
been duly authorized, executed and delivered by the Company, and the
Subscription Agent Agreement constitutes the valid and binding agreement of
the Company and is enforceable against the Company, in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights and
to general equity principles.
(4) The Management Agreement, the Research Agreement and the Custodian
Agreement have each been duly authorized and approved by the Company and
comply with all applicable provisions of the Investment
Company Act, and the Management Agreement and Custodian Agreement have been
duly executed and delivered by the Company and constitute the valid and
binding obligations of the Company enforceable in accordance with their
respective terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights and
to general equity principles.
(5) The Company is duly registered with the Commission under the
Investment Company Act as a closed-end non-diversified management
investment company, and all required action has been taken by the Company
under the Acts and the Exchange Act to make the public offering and
consummate the issuance of the Rights and sale of the Shares pursuant to
this Agreement; the provisions of the Articles of Incorporation and By-laws
of the Company comply as to form in all material respects with the
requirements of the Investment Company Act; and no consent, approval,
authorization or order of, or filing with, any court or governmental
agency, authority or body is required under Maryland corporate law, the
laws of New York or federal law, or, to the best of such counsel's
knowledge, the laws of any other jurisdiction in the United States for the
consummation of the transactions contemplated herein or in the Subscription
Agent Agreement in connection with the issuance of the Rights or the sale
of the Shares by the Company except such as have been obtained under the
Acts and the Exchange Act and such as may be required under state
securities laws in connection with the distribution of the Rights and the
Shares.
(6) The execution, delivery and performance of this Agreement and the
Subscription Agent Agreement and the consummation of the transactions
contemplated herein and in the Subscription Agent Agreement will not result
in a breach or violation of any of the terms and provisions of the Articles
of Incorporation or By-laws of the Company or any law, order, rule or
regulation applicable to the Company of any United States jurisdiction,
court, federal or state regulatory body, administrative agency or other
governmental body, stock exchange or securities association having
jurisdiction over the Company, or its properties or operations, or, to the
best knowledge of such counsel after reasonable investigation, constitute,
with or without giving notice or lapse of time or both, a default under,
any agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the properties of the Company is
subject (except that in this paragraph (6) they express no opinion as to
the accuracy or completeness of the Registration Statement or of the
Prospectus).
(7) The Registration Statement was declared effective under the
Securities Act as of the date and as of the time specified in such opinion,
the
A-2
Prospectus was either filed with the Commission pursuant to the
subparagraph of Rule 497(h) specified in such opinion on the date specified
therein or was included in the Registration Statement (as the case may be),
and, to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, and the Registration Statement and
the Prospectus (except as to the financial statements and other financial
data contained therein, as to which they express no belief), as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Acts and the Rules and Regulations.
(8) The descriptions in the Registration Statement and Prospectus of
United States statutes, legal and governmental proceedings and contracts
and other documents are accurate and fairly present the information
required to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus which
are not described as required, nor of any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement which
are not described and filed as required.
Such counsel shall also state that, while they have not themselves
checked the accuracy and completeness of or otherwise verified, and are not
passing upon and assume no responsibility for the accuracy or completeness of,
the statements contained in the Registration Statement or the Prospectus, except
to the limited extent stated in paragraph (8) above, in the course of their
review and discussion of the contents of the Registration Statement and
Prospectus with certain officers and employees of the Company and its
independent accountants and with Brazilian counsel to the Company, no facts have
come to their attention which cause them to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto (except as
to any financial statements or other financial data included in the Registration
Statement, the Prospectus or any such amendment or supplement, as to which they
express no belief), as of such respective effective or issue dates, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements contained therein not
misleading.
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EXHIBIT B
Form of Opinion of Counsel for Manager
--------------------------------------
Counsel for the Manager is of the opinion that:
(1) The Manager has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to conduct its business as described in the
Prospectus.
(2) The Manager is duly registered as an investment adviser under the
Investment Advisers Act and is not prohibited by the Investment Advisers
Act or the Investment Company Act, or the rules and regulations under such
acts, from acting as Manager for the Company as contemplated by the
Prospectus.
(3) This Agreement has been duly authorized, executed and delivered by
the Manager.
(4) The Management Agreement and the Research Agreement have each been
duly authorized, executed and delivered on behalf of the Manager and each
constitutes a valid and binding obligation of the Manager enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization or other laws relating to or affecting
creditors' rights and to general equity principles; and neither the
execution and delivery of this Agreement, the Management Agreement or the
Research Agreement nor the performance by the Manager of its obligations
thereunder will conflict with or result in a breach or violation of any of
the terms and provisions of the charter or By-laws of the Manager or any
law, order, rule or regulation applicable to the Manager of any United
States jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock exchange or
securities association having jurisdiction over the Manager or its
properties or operations, or, to the best knowledge of such counsel after
reasonable investigation, constitute, with or without giving notice or
lapse of time or both, a default under, any agreement or instrument to
which the Manager is a party or by which the Manager or to which any of the
properties of the Manager is subject.
EXHIBIT C
Form of Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ Neto is of the opinion that:
(1) The information in the Prospectus, to the extent that it relates
to matters of Brazilian law or legal conclusions, has been reviewed by them
and is an accurate and complete description of all Brazilian law or legal
conclusions applicable to the Company and the operation of its business as
described in the Prospectus and, at the Effective Time, such information
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and such counsel has no reason to
believe that the Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or issue
dates, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(2) The Company, the Manager and the Brazilian Adviser have received
all governmental and other licenses, authorizations, approvals and consents
in Brazil which are necessary for the consummation by the Company, the
Manager and the Brazilian Adviser of the transactions contemplated by this
Agreement, the Subscription Agent Agreement, the Management Agreement, the
Research Agreement and the Custodian Agreement, as the case may be, and for
the operation of the business of the Company as described in the
Prospectus, and there is no other license, authorization, approval or
consent of, or filing with, any governmental or other regulatory authority,
stock exchange or securities business association in Brazil necessary in
order for the Company, the Manager and the Brazilian Adviser lawfully to
perform their respective obligations under such Agreements or to conduct
the business of the Company as described in the Prospectus.
(3) To the best of the knowledge of such counsel, there are no
actions, investigations or other proceedings in Brazil of any nature
pending, commenced or threatened, which in any case or in the aggregate,
might result in any material adverse change in the business of the Company,
the Manager or the Brazilian Adviser or which question the validity of the
Agreements referred to under (2) above or the performance by the Company,
the Manager or the Brazilian Adviser, of such Agreements.
(4) The Brazilian Adviser has been duly organized and is validly
existing under the laws of Brazil, with corporate power to conduct its
business as described in the Prospectus.
(5) The Research Agreement has been duly authorized, executed and
delivered on behalf of the Brazilian Adviser and constitutes a valid and
binding obligation of the Brazilian Adviser enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws relating to or generally affecting creditors'
rights, and neither the execution and delivery of the Research Agreement
nor the performance by the Brazilian Adviser of its obligations thereunder
will, to the best of such counsel's knowledge after reasonable
investigation, conflict with, or result in a breach or violation of any of
the terms and provisions of, or constitute, with or without giving notice
or lapse of time or both, a default under, any agreement or instrument to
which the Brazilian Adviser is a party or by which the Brazilian Adviser is
bound or to which any of the properties of the Brazilian Adviser is
subject, or the charter or by-laws of the Brazilian Adviser or will violate
any law, order, rule or regulation in Brazil applicable to the Brazilian
Adviser of any jurisdiction, court, regulatory body, administrative agency
or other governmental body, stock exchange or securities business
association in Brazil having jurisdiction over the Brazilian Adviser or its
properties or operations.
In addition, such counsel will also confirm their opinions set forth
under the caption "Taxation--Brazilian Taxes" in the Prospectus.
C-2