MERGER AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
AND
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
DATED AS OF JULY 31, 2000
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
2.4. Name Change 2
3. REPRESENTATIONS AND WARRANTIES OF THE EMERGING MARKETS
TELECOMMUNICATIONS FUND, INC. 2
3.1. Organization 2
3.2. Registrations and Qualifications 2
3.3. Regulatory Consents and Approvals 3
3.4. Noncontravention 3
3.5. Financial Statements 3
3.6. Annual Report 3
3.7. Qualification, Corporate Power, Authorization of Transaction 3
3.8. Legal Compliance 4
3.9. Material Contracts 4
3.10. Undisclosed Liabilities 4
3.11. Tax Filings 4
3.12. Qualification under Subchapter M 4
3.13. Form N-14 5
3.14. Capitalization. 5
3.15. Books and Records 5
4. REPRESENTATIONS AND WARRANTIES OF THE EMERGING MARKETS
INFRASTRUCTURE FUND, INC. 6
4.1. Organization 6
4.2. Registrations and Qualifications 6
4.3. Regulatory Consents and Approvals 6
4.4. Noncontravention 6
4.5. Financial Statements 6
4.6. Annual Report 7
4.7. Qualification, Corporate Power, Authorization of Transaction 7
4.8. Legal Compliance 7
4.9. Material Contracts 7
4.10. Undisclosed Liabilities 7
4.11. Tax Filings 8
4.12. Qualification under Subchapter M 8
4.13. Form N-14 8
4.14. Capitalization. 8
4.15. Issuance of Stock. 9
4.16. Books and Records 9
5. CONVERSION TO EMERGING MARKETS INFRASTRUCTURE FUND, INC.
COMMON STOCK 9
5.1. Conversion. 9
5.2. Computation of Net Asset Value 9
5.3. Issuance of Emerging Markets Infrastructure Fund, Inc.
Common Stock 10
5.4. Surrender of Emerging Markets Telecommunications Fund, Inc.
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
INFRASTRUCTURE FUND, INC. 13
7.1. Approval of Merger 13
7.2. Certificates and Statements by the Emerging Markets
Telecommunications Fund, Inc. 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. Regulatory Filings. 16
7.9. Administrative Rulings, Proceedings 17
7.10. Satisfaction of the Emerging Markets Infrastructure 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 TELECOMMUNICATIONS FUND, INC. 17
8.1. Approval of Merger 17
8.2. Certificates and Statements by the Emerging Markets
Infrastructure Fund, Inc. 18
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 21
8.7. Regulatory Filings. 21
8.8. Satisfaction of the Emerging Markets Telecommunications
Fund, Inc 21
8.9. Dividends 21
9. PAYMENT OF EXPENSES 22
9.1. Allocation 22
10. COOPERATION FOLLOWING EFFECTIVE DATE 22
11. INDEMNIFICATION 22
11.1. The Emerging Markets Telecommunications Fund, Inc 22
11.2. The Emerging Markets Infrastructure Fund, Inc 22
12. TERMINATION, POSTPONEMENT AND WAIVERS 23
12.1. Termination. 23
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
THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made as of this 31st day of July, 2000, between The Emerging
Markets Telecommunications Fund, Inc. (the "Target Fund" or the
"Emerging Markets Telecommunications 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
Infrastructure Fund, Inc. (the "Acquiring Fund" or the "Emerging
Markets Infrastructure 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 Infrastructure
Fund shall be the surviving investment company. The Emerging
Markets Telecommunications Fund shall cease to exist as a separate
investment company.
Each share of the Emerging Markets Telecommunications 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 Infrastructure 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 Infrastructure Fund will be issued to
Emerging Markets Telecommunications Fund shareholders. In lieu
thereof, the Emerging Markets Infrastructure Fund will purchase
all fractional shares of the Emerging Markets Infrastructure Fund
at the current net asset value of shares of the Emerging Markets
Infrastructure 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 purchase. The Effective Date
and the Business Day prior to it must each be a day on which the
New York Stock Exchange (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
Telecommunications Fund, all as provided under Maryland law.
2.2. Actions at Closing. At the closing of the transactions
contemplated by this Agreement (the "Closing") on the date thereo
f (the "Closing Date"), (i) the Emerging Markets Telecommunications
Fund will deliver to the Emerging Markets Infrastructure Fund the
various certificates and documents referred to in Article 7 below,
(ii) the Emerging Markets Infrastructure Fund will deliver to the
Emerging Markets Telecommunications Fund the various certificates
and documents referred to in Article 8 below, and (iii) the Emerging
Markets Telecommunications Fund and the Emerging Markets
Infrastructure 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 Telecommunications Fund shall cease. As promptly
as practicable after the Merger, the Emerging Markets
Telecommunications 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 Telecommunications
Fund is, and shall remain, the responsibility of the Emerging Markets
Telecommunications Fund up to and including the Effective Date.
2.4. Name Change. Upon the Effective Date, the name of the
Acquiring Fund shall be changed to "The Emerging Markets
Telecommunications Fund, Inc."
3. REPRESENTATIONS AND WARRANTIES OF THE EMERGING MARKETS
TELECOMMUNICATIONS FUND, INC.
The Emerging Markets Telecommunications Fund represents and warrants
to the Emerging Markets Infrastructure 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 Telecommunications Fund
represents and warrants to, and agrees with, the Emerging
Markets Infrastructure Fund that:
3.1. 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.
3.2. 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. 811-06562), 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 regulated investment companies ("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.
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
Telecommunications 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"), the 1940 Act and the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇"), (▇▇) 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 Telecommunications
Fund is not, and the execution, delivery and performance of this
Agreement by the Emerging Markets Telecommunications 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 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.
3.5. Financial Statements. The Emerging Markets Infrastructure
Fund has been furnished with a statement of assets, liabilities
and capital and a schedule of investments of the Emerging Markets
Telecommunications Fund, each as of May 31, 2000, said financial
statements having been examined by PricewaterhouseCoopers LLP,
independent public accountants. These financial statements are
in accordance with generally accepted accounting principles
applied on a consistent basis ("GAAP") and present fairly, in all
material respects, the financial position of the 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.
3.6. Annual Report. The Emerging Markets Infrastructure Fund has
been furnished with the Emerging Markets Telecommunications Fund's
Annual Report to Shareholders for the fiscal year ended May 31, 2000.
3.7. 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 bee
n 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.
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
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.
3.9. 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 (as defined
in Section 3.13 below) or will not be otherwise disclosed to the
Emerging Markets Infrastructure Fund prior to the Effective Date.
3.10. Undisclosed Liabilities. Since May 31, 2000, 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 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 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
June 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 3.10, 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
Emerging Markets Telecommunications 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 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.
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 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.
3.13. Form N-14. The registration statement to be filed by the
Emerging Markets Infrastructure Fund on Form N-14 relating to the
Emerging Markets Infrastructure 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 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 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 Infrastructure Fund for use in the N-14 Registration Statement.
3.14. 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 as provided in Section 6.7. 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.
3.15. 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.
4. REPRESENTATIONS AND WARRANTIES OF THE EMERGING MARKETS
INFRASTRUCTURE FUND, INC.
The Emerging Markets Infrastructure Fund represents and warrants
to the Emerging Markets Telecommunications 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 Infrastructure Fund represents and warrants to,
and agrees with, the Emerging Markets Telecommunications Fund that:
4.1. 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.
4.2. 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. 811-08076) 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 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.
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 Infrastructure
Fund of the transactions contemplated herein, except (i) such as
have been obtained or applied for under the 1933 Act, the 1934 Act,
the 1940 Act and the HSR 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 Infrastructure Fund is not,
and the execution, delivery and performance of this Agreement by the Emerging
Markets Infrastructure 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 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 th
4.5. 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 GAAP and present fairly, in all material respects,
opers 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 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
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.
4.6. 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.
4.7. 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 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 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.
4.9. 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 or will
not be otherwise disclosed to the Emerging Markets Telecommunications
Fund prior to the Effective Date.
4.10. Undisclosed Liabilities. Since November 30, 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 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
December 1, 1999, 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 4.10, 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 the Emerging
Markets Infrastructure 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 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.
4.12. Qualification under Subchapter M. For each taxable year of
its operation, 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.
4.13. Form N-14. 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 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 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 Telecommunications Fund for use in
the N-14 Registration Statement.
4.14. 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. 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.
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
Infrastructure Fund will have obtained any and all regulatory,
director and shareholder approvals necessary to issue the Emerging
Markets Infrastructure Fund Common Stock.
4.16. Books and Records. The books and records of the Emerging
Markets Infrastructure Fund made available to the Emerging Markets
Telecommunications Fund are substantially true and correct and
contain no material misstatements or omissions with respect to
the operations of the Emerging Markets Infrastructure Fund.
5. CONVERSION TO EMERGING MARKETS INFRASTRUCTURE FUND, INC. COMMON
STOCK
5.1. Conversion.
(a) Subject to the requisite approval of the shareholders of the
Parties, and the other terms and conditions contained herein, at
the Effective Date, each share of Common Stock of the Emerging Markets
Telecommunications Fund will be converted into an equivalent dollar
amount (to the nearest one ten-thousandth of one cent) of full
shares of Emerging Markets Infrastructure 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 Infrastructure
Fund will be issued to Emerging Markets Telecommunications Fund
shareholders. In lieu thereof, the Emerging Markets Infrastructure
Fund will purchase all fractional shares of the Emerging Markets
Infrastructure Fund at the current net asset value of shares of
the Emerging Markets Infrastructure 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 purchase.
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 Telecommunications Fund to be transferred to the
Emerging Markets Infrastructure Fund shall be determined by the
Emerging Markets Infrastructure Fund pursuant to the principles
and procedures consistently utilized by the Emerging Markets
Infrastructure 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 Telecommunications Fund when valuing its
own assets and determining its own liabilities. Such valuation
and determination shall be made by the Emerging Markets Infrastructure
Fund in cooperation with the Emerging Markets Telecommunications
Fund and shall be confirmed in writing by the Emerging Markets
Infrastructure Fund to the Emerging Markets Telecommunications
Fund. The net asset value per share of Emerging Markets
Infrastructure Fund Common Stock shall be determined in accordance
with such procedures, and the Emerging Markets Infrastructure Fund
shall certify the computations involved.
5.3. Issuance of Emerging Markets Infrastructure Fund, Inc. Common
Stock. The Emerging Markets Infrastructure Fund shall issue to the
shareholders of the Emerging Markets Telecommunications Fund
separate certificates or share deposit receipts for the Emerging
Markets Infrastructure Fund Common Stock by delivering the
certificates or share deposit receipts evidencing ownership
of the Emerging Markets Infrastructure Fund Common Stock to
Fleet National Bank c/o EquiServe, L.P., as the transfer agent
and registrar for the Emerging Markets Infrastructure Fund
Common Stock.
5.4. Surrender of Emerging Markets Telecommunications Fund, Inc.
Stock Certificates. With respect to any Emerging Markets
Telecommunications Fund shareholder holding certificates
representing shares of the Common Stock of the Emerging Markets
Telecommunications Fund as of the Effective Date, and subject
to the Emerging Markets Infrastructure Fund being informed thereof
in writing by the Emerging Markets Telecommunications Fund, the
Emerging Markets Infrastructure Fund will not permit such
shareholder to receive new certificates evidencing ownership
of the Emerging Markets Infrastructure Fund Common Stock until
such shareholder has surrendered his or her outstanding certificates
evidencing ownership of the Common Stock of the Emerging Markets
Telecommunications Fund or, in the event of lost certificates,
posted adequate bond. The Emerging Markets Telecommunications
Fund will request its shareholders to surrender their outstanding
certificates representing certificates of the Common Stock of the
Emerging Markets Telecommunications Fund or post adequate bond
therefor. Dividends payable to holders of record of shares of
the Emerging Markets Infrastructure Fund as of any date after
the Effective Date and prior to the exchange of certificates
by any shareholder of the Emerging Markets Telecommunications
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 Telecommunications Fund for exchange.
6. COVENANTS OF THE PARTIES
6.1. Shareholders' Meetings.
(a) Each of the Parties shall hold a meeting of its respective
shareholders for the purpose of considering the Merger as described
herein, which meeting has been called by each Party for October
10, 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 Telecommunications 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 Telecommunications 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 Telecommunications
Fund has ceased to a registered investment company.
(b) The Emerging Markets Infrastructure Fund will file the N-14
Registration Statement with the Securities and Exchange Commission
("SEC") and will use its best efforts to ensure that the N-14
Registration Statement becomes effective as promptly as
practicable. The Emerging Markets Telecommunications Fund
agrees to cooperate fully with the Emerging Markets
Infrastructure Fund, and will furnish to the Emerging Markets
Infrastructure 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇▇▇▇") if applicable,
with respect to the transactions contemplated by this Agreement
and to ensure that the related waiting period expires or is otherwise
terminated at the earliest possible time.
6.5. Preservation of Assets. The Emerging Markets Infrastructure Fund
agrees that it has no plan or intention to sell or otherwise dispose
of the assets of the Emerging Markets Telecommunications 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 Infrastructure
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 Telecommunications 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 Infrastructure 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
Telecommunications 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 Infrastructure Fund (other than for payment
of taxes) in excess of any accrual for such expenses by the
Emerging Markets Telecommunications 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
Infrastructure Fund.
6.7. Shareholder List. Prior to the Effective Date, the Emerging
Markets Telecommunications Fund shall have made arrangements with
its transfer agent to deliver to the Emerging Markets Infrastructure
Fund, a list of the names and addresses of all of the shareholders
of record of the Emerging Markets Telecommunications Fund on the
Effective Date and the number of shares of Common Stock of the
Emerging Markets Telecommunications Fund owned by each such
shareholder, certified by the Emerging Markets Telecommunications
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 Telecommunications Fund agrees that the (i)
delisting of the shares of the Emerging Markets Telecommunications
Fund with the NYSE and (ii) termination of its registration as a
RIC will be effected in accordance with applicable law as soon
as practicable following the Effective Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE EMERGING MARKETS
INFRASTRUCTURE FUND, INC.
The obligations of the Emerging Markets Infrastructure Fund
hereunder shall be subject to the following conditions:
7.1. Approval of Merger. This Agreement shall have been approved by
the affirmative vote of the holders of a majority of the shares of
Common Stock of the 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 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.
7.2. Certificates and Statements by the Emerging Markets
Telecommunications Fund, Inc.
(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
July 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 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 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 and for any
taxable year ending upon the Effective Date, such firm has
performed a limited review to ascertain the amount of such
applicable federal, state and local taxes, and has determined
that either such amount has been paid or reserves have been
established for payment of such taxes, this review to be based
on unaudited financial data; and that based on such limited
review, nothing has come to their attention which caused them to
believe that the taxes paid or reserves set aside for payment
of such taxes were not adequate in all material respects for the
satisfaction of federal, state and local taxes for the period
from December 31, 1999, to and including the Effective Date and
for any taxable year ending upon the Effective Date or that the
Emerging Markets Telecommunications 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 Infrastructure Fund shall have received an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, 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, the 1934 Act, the 1940 Act, the HSR 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
Telecommunications 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
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; (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 Telecommunications
Fund; and (vii) 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 with respect to the Emerging Markets Telecommunications
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 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, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP, as to
matters of Maryland law.
(b) The Emerging Markets Infrastructure Fund shall have received
an opinion from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, 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 Infrastructure Fund and the Emerging Markets
Telecommunications Fund will each be a "party to a reorganization"
within the meaning of Section 368(b) of the Code; (ii) no gain or
loss will be recognized by the Emerging Markets Telecommunications
Fund as a result of the Merger or upon the conversion of Emerging
Markets Telecommunications Fund shares to Emerging Markets
Infrastructure Fund Common
Stock; (iii) no gain or loss will be recognized by the Emerging
Markets Infrastructure Fund as a result of the Merger; (iv) no
gain or loss will be recognized by the shareholders of the
Emerging Markets Telecommunications Fund upon the conversion
of their shares into Emerging Markets Infrastructure Fund Common
Stock except to the extent such shareholders are paid cash in lieu
of fractional shares of Emerging Markets Infrastructure Fund in
the Merger; (v) the tax basis of the Emerging Markets
Telecommunications Fund assets in the hands of the Emerging
Markets Infrastructure Fund will be the same as the tax basis
of such assets in the hands of the Emerging Markets Telecommunications
Fund imediately prior to the consummation of the Merger;
(vi) immediately after the Merger, the tax basis of the Emerging
Markets Infrastructure Fund Common Stock received by the
shareholders of the Emerging Markets Telecommunications Fund in
the Merger (including that of fractional share interests purchased
by the Surviving Fund) will be equal, in the aggregate, to the tax
basis of the shares of the Emerging Markets Telecommunications Fund
converted pursuant to the Merger; (vii) a shareholder's holding period
for the Emerging Markets Infrastructure Fund Common Stock (including
that of fractional share interests purchased by the Surviving Fund)
will be determined by including the period for which he or she held
the Common Stock of the Emerging Markets Telecommunications Fund
converted pursuant to the Merger, provided that such Emerging
Markets Telecommunications Fund shares were held as a capital
asset; (viii) the Emerging Markets Infrastructure Fund's holding
period with respect to the Emerging Markets Telecommunications
Fund assets transferred will include the period for which such
assets were held by the Emerging Markets Telecommunications Fund;
and (ix) the payment of cash to an Emerging Markets
Telecommunications Fund shareholder in lieu of fractional
shares of the Emerging Markets Infrastructure Fund will be treated
as though the fractional shares were distributed as part of the
Merger and then redeemed by the Emerging Markets Infrastructure
Fund with the result that the Emerging Markets Telecommunications
Fund shareholder will have a capital gain or loss to the extent the
cash distribution differs from such shareholder's basis allocable to
the fractional shares, provided that the converted Emerging Markets
Telecommunications Fund shares were held as capital assets
immediately prior to the conversion and that the shareholder's
proportionate interest in the Emerging Markets Infrastructure
Fund will be reduced as a result of such cash distribution.
7.5. 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 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
Telecommunications Fund to be transferred to the Emerging Markets
Infrastructure Fund shall not include any assets or liabilities
which the Emerging Markets Infrastructure Fund, by reason of
limitations in its investment objective and policies as in effect
upon the consummation of the Merger or Articles of Incorporation,
may not properly acquire or assume. The Emerging Markets Infrastructure
Fund does not anticipate that there will be any such assets or
liabilities but the Emerging Markets Infrastructure Fund will
notify the Emerging Markets Telecommunications Fund if any do
exist and will reimburse the Emerging Markets Telecommunications
Fund for any reasonable transaction costs incurred by the Emerging
Markets Telecommunications 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 Infrastructure
Fund, contemplated by the SEC.
7.8. Regulatory Filings.
(a) The Emerging Markets Infrastructure Fund shall have received
from the SEC such orders or interpretations as ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, 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
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 Telecommunications
Fund or would prohibit the Merger.
7.10. Satisfaction of the Emerging Markets Infrastructure Fund, Inc.
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.
7.11. 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) (unless such amounts are immaterial),and
substantially all of its net capital gain, if any, realized through
the Effective Date.
7.12. Custodian's Certificate. The Emerging Markets
Telecommunications Fund's custodian shall have delivered to the
Emerging Markets Infrastructure Fund a certificate identifying all
of the assets of the Emerging Markets Telecommunications Fund held
or maintained by such custodian as of the Valuation Time.
7.13. Books and Records. The Emerging Markets Telecommunications
Fund's transfer agent shall have provided to the Emerging Markets
Infrastructure Fund (i) the originals or true copies of all of the
records of the Emerging Markets Telecommunications 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 Telecommunications 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
TELECOMMUNICATIONS FUND, INC.
The obligations of the Emerging Markets Telecommunications Fund
hereunder shall be subject to the following conditions:
8.1. Approval of Merger. This Agreement shall have been approved
by the affirmative vote of the holders of a majority of the shares
of Common Stock of the 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 that 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.
8.2. Certificates and Statements by the Emerging Markets
Infrastructure Fund, Inc.
(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 July 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 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 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, 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 Infrastructure 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 Telecommunications Fund shall have received
an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, 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 HSR 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 Infrastructure 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
Infrastructure 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
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; (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 Infrastructure Fund;
and (viii) 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, (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 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, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP as to
matters of Maryland law.
(b) The Emerging Markets Telecommunications Fund shall have received
an opinion from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and dated the Effective
Date, to the effect that for federal income tax purposes (i) the
Merger as provided in this Agreement will constitute a reorganization
within the meaning of Section 368(a)(1)(A) of the Code and that
the Emerging Markets Infrastructure Fund and the Emerging Markets
Telecommunications Fund will each be a "party" to a reorganization"
within the meaning of Section 368(b) of the Code; (ii) no gain
or loss will be recognized by the Emerging Markets Telecommunications
Fund as a result of the Merger or upon the conversion of Emerging
Markets Telecommunications shares to Emerging Markets Infrastructure
Fund Common; (iii) no gain or loss will be recognized by the Emerging
Markets Infrastructure Fund as a result of the Merger; (iv) no gain or
loss will be recognized by the shareholders of the Emerging Markets
Telecommunications Fund upon the conversion of their shares into
Emerging Markets Infrastructure Fund Common Stock except to the
extent such shareholders are paid cash in lieu of fractional shares
of Emerging Markets Infrastructure Fund in the Merger; (v) the tax
basis of the Emerging Markets Telecommunications Fund assets in the
hands of the Emerging Markets Infrastructure Fund will be the same
as the tax basis of such assets in the hands of the Emerging Markets
Telecommunications Fund immediately prior to the consummation of the
Merger; (vi) immediately after the Merger, the tax basis of the
Emerging Markets Infrastructure Fund Common Stock received by the
shareholders of the Emerging Markets Telecommunications Fund in the
Merger (including that of fractional share interests purchased by the
Surviving Fund) will be equal, in the aggregate, to the tax basis
of the shares of the Emerging Markets Telecommunications Fund
converted pursuant to the Merger; (vii) a shareholder's holding
period for the Emerging Markets Infrastructure Fund Common Stock
(including that of fractional share interests purchased by the
Surviving Fund) will be determined by including the period for
which he or she held the Common Stock of the Emerging Markets
Telecommunications Fund converted pursuant to the Merger, provided,
that such Emerging Markets Telecommunications Fund shares were held
as a capital asset; (viii) the Emerging Markets Infrastructure Fund's
holding period with respect to the Emerging Markets Telecommunications
Fund assets transferred will include the period for which such assets
were held by the Emerging Markets Telecommunications Fund; and (ix)
the payment of cash to an Emerging Markets Telecommunications Fund
shareholder in lieu of fractional shares of the Emerging Markets
Infrastructure Fund will be treated as though the fractional shares
were distributed as part of the Merger and then redeemed by the
Emerging Markets Infrastructure Fund with the result that the
Emerging Markets Telecommunications Fund shareholder will have
a capital gain or loss to the extent the cash distribution
differs from such shareholder's basis allocable to the fractional
shares, provided that the converted Emerging Markets
Telecommunications Fund shares were held as capital assets immediately
prior to the conversion and that the shareholder's proportionate interest
in the Emerging Markets Infrastructure Fund will be reduced as a result
of such cash distribution.
8.5. 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 incorporated by reference in the N-14 Registration Statement
and reported on by them comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder.
8.6. Effectiveness of N-14 Registration Statement. The N-14 Registration
Statement shall have become effective under the 1933 Act and no stop
order suspending such effectiveness shall have been instituted or, to
the knowledge of the Emerging Markets Telecommunications Fund,
contemplated by the SEC.
8.7. Regulatory Filings.
(a) The Emerging Markets Telecommunications Fund shall have received
from the SEC such orders or interpretations as ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, 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 or counsel to the Emerging Markets Infrastructure
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 Telecommunications Fund or would prohibit the Merger.
(c) The Emerging Markets Infrastructure 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 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.
8.9. 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) (unless such
amounts are immaterial), and substantially all of its net capital
gain, if any, realized through the Effective Date.
9. PAYMENT OF EXPENSES
9.1. Allocation. All expenses incurred in connection with the
Merger shall be allocated equally between the Emerging Markets
Infrastructure Fund and the Emerging Markets Telecommunications
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 HSR Filing
for the Parties, proxy solicitation expenses, legal and acounting
fees, SEC registration fees, and NYSE listing fees. Neither of the
Parties owes any broker's or finder's fees in connection with the
transactions provided for herein.
10. COOPERATION FOLLOWING EFFECTIVE DATE
In case at any time after the Effective Date any further action is
necessary to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other
Party may reasonably request, all at the sole cost and expense of
the requesting Party (unless the requesting Party is entitled to
indemnification as described below). The Emerging Markets
Telecommunications Fund acknowledges and agrees that from and
after the Effective Date, the Emerging Markets Infrastructure
Fund shall be entitled to possession of all documents, books,
records, agreements and financial data of any sort pertaining
to the Emerging Markets Telecommunications Fund.
11. INDEMNIFICATION
11.1. The Emerging Markets Telecommunications Fund, Inc. 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, 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
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.
11.2. The Emerging Markets Infrastructure Fund, Inc. 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, 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.
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 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; or (iii) by the
Board of Directors of the Emerging Markets Telecommunications Fund
if any of the obligations 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.
(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
Telecommunications Fund or the Emerging Markets Infrastructure
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
Infrastructure Fund Common Stock to be issued pursuant to this
Agreement, in which event, unless such terms and conditions shall
have been included in the proxy solicitation materials furnished
to the shareholders of the Parties prior to the meetings at which
the Merger shall have been approved, this Agreement shall not be
consummated and shall terminate unless the Parties call special
meetings of shareholders at which such conditions so imposed shall
be submitted for approval.
13. MISCELLANEOUS
13.1. Transfer Restriction. Pursuant to Rule 145 under the 1933
Act, and in connection with the issuance of any shares to any
person who at the time of the Merger is, to its knowledge, an
affiliate of a party to the Merger pursuant to Rule 145(c), the
Emerging Markets Infrastructure 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 INFRASTRUCTURE 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 Infrastructure Fund's transfer agent with respect
to such shares. The Emerging Markets Telecommunications Fund will
provide the Emerging Markets Infrastructure Fund on the Effective
Date with the name of any Emerging Markets Telecommunications Fund
Shareholder who is to the knowledge of the Emerging Markets
Telecommunications Fund an affiliate of it on such date.
13.2. Material Provisions. All covenants, agreements, representations
and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have
been material and relied upon by each of the parties,
notwithstanding any investigation made by them or on their behalf.
13.3. Notices. All notices, requests, demands, claims,
and other communications hereunder will be in writing. Any notice,
request, demand, claim or other communication hereunder shall be
deemed duly given if (and then two business days after) it is sent
by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below:
If to the Emerging Markets Telecommunications Fund:
▇▇▇ ▇▇▇▇▇▇, Esq.
Senior Vice President
The Emerging Markets Telecommunications Fund, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to the Emerging Markets Infrastructure Fund:
▇▇▇ ▇▇▇▇▇▇, Esq.
Senior Vice President
The Emerging Markets Infrastructure Fund, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Any Party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address
set forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary
mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices,
requests, demands, claims and other communications hereunder
are to be delivered by giving the other Parties notice in the
manner herein set forth.
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
Telecommunications Fund and the Emerging Markets Infrastructure
Fund; provided, however, that following the meeting of the
Emerging Markets Telecommunications Fund and Emerging Markets
Infrastructure 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 Infrastructure
Fund shares to be issued to the Emerging Markets Telecommunications
Fund shareholders under this Agreement to the detriment of such
shareholders without their further approval.
13.5. Headings. The Article headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
13.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
13.7. Enforceability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any
other jurisdiction.
13.8. Successors and Assigns. This Agreement shall bind and inure
to the benefit of the parties hereto and their respective successors
and assigns, but no assignment or transfer hereof or of any rights
or obligations hereunder shall be made by any party without the
written consent of the other party. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give
any person, firm or corporation, other than the parties hereto
and the shareholders of the Parties and their respective successors
and assigns, any rights or remedies under or by reason of this
Agreement.
13.9. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State
of Maryland, without regard to its principles of conflicts of law.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed by its President or Vice President and
attested by its Secretary or Assistant Secretary.
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
By:
Name:
Attest:
Title:
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
By:
Name:
Attest:
Title:
780635.5
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