AGREEMENT AND PLAN OF ACQUISITION
THIS AGREEMENT AND PLAN OF ACQUISITION (the "Plan") is made as of this 19th
day of March, 2002, by and between Xxxxxxxxx Vietnam and Southeast Asia Fund,
Inc. ("Vietnam SEA Fund"), a corporation incorporated under the laws of the
State of Maryland and a non-diversified, closed-end management investment
company registered under the Investment Company Act of 1940, as amended ("1940
Act"), with its principal place of business at 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000, and Xxxxxxxxx Developing Markets Trust ("Developing
Markets Trust"), a business trust formed under the laws of the Commonwealth of
Massachusetts and a diversified, open-end management investment company
registered under the 1940 Act, with its principal place of business at 000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
REORGANIZATION
The reorganization (hereinafter referred to as the "Reorganization") will
consist of (i) the acquisition by Developing Markets Trust of substantially all
of the property, assets and goodwill of Vietnam SEA Fund in exchange solely for
full and fractional shares of beneficial interest, par value $0.01 per share, of
Developing Markets Trust - Advisor Class ("Developing Markets Trust Shares");
(ii) the distribution of Developing Markets Trust Shares to the shareholders of
Vietnam SEA Fund according to their respective interests in liquidation of
Vietnam SEA Fund; and (iii) the dissolution of Vietnam SEA Fund as soon as is
practicable after the closing (as defined in Section 3, hereinafter called the
"Closing"), all upon and subject to the terms and conditions of this Plan
hereinafter set forth.
AGREEMENT
In order to consummate the Plan and the Reorganization and in consideration
of the premises and of the covenants and agreements hereinafter set forth, and
intending to be legally bound, the parties hereto covenant and agree as follows:
1. SALE AND TRANSFER OF ASSETS, LIQUIDATION AND DISSOLUTION OF VIETNAM SEA FUND.
(a) Subject to the terms and conditions of this Plan, and in reliance on
the representations and warranties of Developing Markets Trust herein
contained, and in consideration of the delivery by Developing Markets
Trust of the number of Developing Markets Trust Shares hereinafter
provided, Vietnam SEA Fund agrees that it will convey, transfer and
deliver to Developing Markets Trust at the Closing all of Vietnam SEA
Fund's then existing assets, free and clear of all liens, encumbrances
and claims whatsoever (other than shareholders' rights of redemption,
if any), except for cash, bank deposits or cash equivalent securities
in an estimated amount necessary to: (i) pay the costs and expenses of
carrying out this Plan (including, but not limited to, fees of counsel
and accountants, and expenses of its liquidation and dissolution
contemplated hereunder), which costs and expenses shall be established
on Vietnam SEA Fund's books as liability reserves; (ii) discharge its
unpaid liabilities on its books at the closing date (as defined in
Section 3, hereinafter called the "Closing Date"), including, but not
limited to, its income dividends and capital gains distributions, if
any, payable for the period prior to, and through, the Closing Date
and excluding those liabilities that would otherwise be discharged at
a later date in the ordinary course of business; and (iii) pay such
contingent liabilities as the Board of Directors of Vietnam SEA Fund
(the "Vietnam SEA Fund Board") shall reasonably deem to exist against
Vietnam SEA Fund, if any, at the Closing Date, for which contingent
and other appropriate liability reserves shall be established on
Vietnam SEA Fund's books (hereinafter "Net Assets"). Vietnam SEA Fund
shall also retain any and all rights that it may have over and against
any person that may have arisen up to and including the close of
business on the Closing Date.
(b) Subject to the terms and conditions of this Plan, and in reliance on
the representations and warranties of Vietnam SEA Fund herein
contained, and in consideration of such sale, conveyance, transfer and
delivery, Developing Markets Trust agrees at the Closing to deliver to
Vietnam SEA Fund the number of Developing Markets Trust Shares,
determined by: (a) dividing the value of Vietnam SEA Fund's Net Assets
by the number of outstanding shares of common stock, par value $0.01
per share, of Vietnam SEA Fund ("Vietnam SEA Fund Shares"); (b)
dividing the value of Developing Markets Trust's net assets
attributable to Developing Markets Trust by the number of outstanding
Developing Markets Trust Shares; (c) dividing the quotient calculated
in step (a) by the quotient calculated in step (b); and (d)
multiplying the quotient calculated in step (c) by the number of
outstanding Vietnam SEA Fund Shares as of 4:00 p.m. Eastern time on
the Closing Date. All such values shall be determined in the manner
and as of the time set forth in Section 2 hereof.
(c) Immediately following the Closing, Vietnam SEA Fund shall effect a
liquidating distribution of the Developing Markets Trust Shares
received by Vietnam SEA Fund pursuant to this Section 1, together with
any other assets, pro rata to Vietnam SEA Fund's shareholders of
record as of the close of business on the Closing Date. Such
liquidating distribution shall be accomplished by the establishment of
accounts on the share records of Developing Markets Trust of the type
and in the amounts due such shareholders based on their respective
holdings as of the close of business on the Closing Date. Fractional
Developing Markets Trust Shares shall be carried to the third decimal
place. As promptly as is practicable after the Closing, each holder of
any outstanding certificate or certificates representing Vietnam SEA
Fund Shares shall be entitled to surrender the same to the transfer
agent for Developing Markets Trust in exchange for the number of
Developing Markets Trust Shares into which the Vietnam SEA Fund Shares
theretofore represented by the certificate or certificates so
surrendered shall have been converted. Certificates for Developing
Markets Trust Shares shall not be issued, unless specifically
requested by the shareholders. Until so surrendered, each outstanding
certificate which, prior to the Closing, represented Vietnam SEA Fund
Shares shall be deemed for all Developing Markets Trust's purposes to
evidence ownership of the number of Developing Markets Trust Shares
into which the Vietnam SEA Fund Shares (which prior to the Closing
were represented thereby) have been converted. Promptly following the
Closing and the liquidating distribution of the Developing Markets
Trust Shares (and any resolution of litigation or other contingent
liabilities), Vietnam SEA Fund shall be dissolved.
2. VALUATION.
(a) The value of Vietnam SEA Fund's Net Assets to be acquired by Developing
Markets Trust hereunder shall be computed as of 4:00 p.m. Eastern time
on the Closing Date in a manner consistent with the valuation
procedures described in Vietnam SEA Fund's registration statement on
Form N-2 dated September 15, 1994, as such disclosures have been
amended to date by any: (i) amendments to Vietnam SEA Fund's Form N-2
filed with the U.S. Securities and Exchange Commission (the "SEC");
(ii) press releases issued on behalf of Vietnam SEA Fund; and (iii)
Vietnam SEA Fund annual or semi-annual reports sent to shareholders
pursuant to Section 30 of the 1940 Act (together, the "Vietnam SEA
Fund Disclosure Documents").
(b) The net asset value per Vietnam SEA Fund Share shall be determined to
the second decimal place as of 4:00 p.m. Eastern time on the Closing
Date in a manner consistent with the valuation procedures described in
Vietnam SEA Fund's Disclosure Documents.
(c) The net asset value of a share of beneficial interest of Developing
Markets Trust Shares shall be determined to the second decimal place
as of 4:00 p.m. Eastern time on the Closing Date in a manner
consistent with the valuation procedures described in Developing
Markets Trust's currently effective prospectus.
3. CLOSING AND CLOSING DATE.
The Closing Date shall be September 26, 2002, or such later date as the
parties may mutually agree. The Closing shall take place at the principal office
of Developing Markets Trust at 5:00 p.m. Eastern time, on the Closing Date.
Vietnam SEA Fund shall have provided for delivery as of the Closing of those Net
Assets of Vietnam SEA Fund to be transferred to the account of Developing
Markets Trust's custodian, JPMorgan Xxxxx Xxxx, XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000. Also, Vietnam SEA Fund shall deliver at the Closing a list of names
and addresses of the shareholders of record of its Vietnam SEA Fund Shares and
the number of full and fractional shares of common stock of Vietnam SEA Fund
Shares owned by each such shareholder, indicating thereon which such shares are
represented by outstanding certificates and which by book-entry accounts, all as
of 4:00 p.m. Eastern time on the Closing Date, certified by its transfer agent
or by its President or a Vice President to the best of its or his or her
knowledge and belief. Developing Markets Trust shall issue and deliver a
certificate or certificates evidencing the Developing Markets Trust Shares to be
delivered to the account of Vietnam SEA Fund at said transfer agent registered
in such manner as the officers of Vietnam SEA Fund may request, or provide
evidence satisfactory to Vietnam SEA Fund that such Developing Markets Trust
Shares have been registered in an account on the books of Developing Markets
Trust in such manner as the officers of Vietnam SEA Fund may request.
4. REPRESENTATIONS AND WARRANTIES BY DEVELOPING MARKETS TRUST.
Developing Markets Trust represents and warrants to Vietnam SEA Fund that:
(a) Developing Markets Trust is a business trust formed under the laws of
the Commonwealth of Massachusetts on August 9, 1991, and is validly
existing under the laws of that Commonwealth. Developing Markets Trust
is duly registered under the 1940 Act as an open-end, management
investment company and all of the Developing Markets Trust Shares sold
were sold pursuant to an effective registration statement filed under
the Securities Act of 1933, as amended (the "1933 Act"), except for
those shares sold pursuant to the private offering exemption for the
purpose of raising the required initial capital.
(b) Developing Markets Trust is authorized to issue an unlimited number of
shares of beneficial interest of Developing Markets Trust Shares, par
value $0.01 per share, each outstanding share of which is fully paid,
non-assessable, freely transferable and has full voting rights.
Developing Markets Trust is further divided into five classes of
shares of which Developing Markets Trust Shares is one, and an
unlimited number of shares of beneficial interest, par value $0.01 per
share, have been allocated and designated to Developing Markets Trust
Shares.
(c) The audited financial statements appearing in Developing Markets
Trust's Annual Report to Shareholders for the fiscal year ended
December 31, 2001, audited by PricewaterhouseCoopers LLP, a copy of
which has been delivered to Vietnam SEA Fund, fairly present the
financial position of Developing Markets Trust as of the respective
dates indicated and the results of its operations for the periods
indicated in conformity with generally accepted accounting principles
applied on a consistent basis.
(d) The books and records of Developing Markets Trust accurately summarize
the accounting data represented and contain no material omissions with
respect to the business and operations of Developing Markets Trust.
(e) Developing Markets Trust has the necessary power and authority to
conduct its business as such business is now being conducted.
(f) Developing Markets Trust is not a party to or obligated under any
provision of its Declaration of Trust or its By-laws (together, as
each has been amended to date, the "Developing Markets Trust Trust
Documents"), or any contract or any other commitment or obligation,
and is not subject to any order or decree, that would be violated by
its execution of or performance under this Plan.
(g) Developing Markets Trust has elected to be treated as a regulated
investment company ("RIC") for federal income tax purposes under Part
I of Subchapter M of the Internal Revenue Code of 1986, as amended
(the "Code"), and it has qualified as a RIC for each taxable year
since its inception and will qualify as a RIC as of the Closing Date,
and consummation of the transactions contemplated by the Plan will not
cause it to fail to be qualified as a RIC as of the Closing Date.
(h) Developing Markets Trust is not under jurisdiction of a Court in a
Title 11 or similar case within the meaning of Section 368(a)(3)(A) of
the Code.
5. REPRESENTATIONS AND WARRANTIES BY VIETNAM SEA FUND.
Vietnam SEA Fund represents and warrants to Developing Markets Trust that:
(a) Vietnam SEA Fund is a corporation incorporated under the laws of the
State of Maryland on July 19, 1994, and is validly existing under the
laws of that State. Vietnam SEA Fund is duly registered under the 1940
Act as a non-diversified, closed-end management investment company and
all of the Vietnam SEA Fund Shares sold were sold in compliance in all
material respects with applicable registration requirements of the
1933 Act.
(b) Vietnam SEA Fund is authorized to issue one hundred million
(100,000,000) shares of common stock of Vietnam SEA Fund, par value
$0.01 per share, each outstanding share of which is fully paid,
non-assessable, freely transferable and has full voting rights.
Vietnam SEA Fund currently issues shares of one (1) class, and it has
not designated any series of shares.
(c) The unaudited financial statements appearing in Vietnam SEA Fund's
Semi-Annual Report to Shareholders for the six-month period ended
September 30, 2001, a copy of which has been delivered to Developing
Markets Trust, fairly present the financial position of Vietnam SEA
Fund as of the respective dates indicated and the results of its
operations for the periods indicated in conformity with generally
accepted accounting principles applied on a consistent basis. If
available, a copy of the financial statements appearing in Vietnam SEA
Fund's Annual Report to Shareholders for the fiscal year ended March
31, 2002, audited by PricewaterhouseCoopers LLP, will be delivered to
Developing Markets Trust which will fairly present the financial
position of Vietnam SEA Fund as of the respective dates indicated and
the results of its operations for the periods indicated in conformity
with generally accepted accounting principles applied on a consistent
basis.
(d) The books and records of Vietnam SEA Fund accurately summarize the
accounting data represented and contain no material omissions with
respect to the business and operations of Vietnam SEA Fund.
(e) Vietnam SEA Fund has the necessary power and authority to conduct its
business as such business is now being conducted.
(f) Vietnam SEA Fund is not a party to or obligated under any provision of
its Articles of Incorporation or its Bylaws (together, as each has
been amended to date, the "Vietnam SEA Fund Corporate Documents"), or
any contract or any other commitment or obligation, and is not subject
to any order or decree, that would be violated by its execution of or
performance under this Plan.
(g) Vietnam SEA Fund has elected to be treated as a RIC for federal income
tax purposes under Part I of Subchapter M of the Code, and it has
qualified as a RIC for each taxable year since its inception and will
qualify as a RIC as of the Closing Date, and consummation of the
transactions contemplated by the Plan will not cause it to fail to be
qualified as a RIC as of the Closing Date.
(h) Vietnam SEA Fund is not under jurisdiction of a Court in a Title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the Code.
6. REPRESENTATIONS AND WARRANTIES BY VIETNAM SEA FUND AND DEVELOPING MARKETS
TRUST.
Vietnam SEA Fund and Developing Markets Trust each represents and warrants
to the other that:
(a) The statement of assets and liabilities to be furnished by it as of
4:00 p.m. Eastern time on the Closing Date, for the purpose of
determining the number of Developing Markets Trust Shares to be issued
pursuant to Section 1 of this Plan, will accurately reflect its Net
Assets in the case of Vietnam SEA Fund and its net assets in the case
of Developing Markets Trust and the outstanding Vietnam SEA Fund
Shares and Developing Markets Trust Shares, respectively, as of such
date, in conformity with generally accepted accounting principles
applied on a consistent basis.
(b) At the Closing, it will have good and marketable title to all of the
securities and other assets shown on the statement of assets and
liabilities referred to in (a) above, free and clear of all liens or
encumbrances of any nature whatsoever, except such imperfections of
title or encumbrances as do not materially detract from the value or
use of the assets subject thereto, or materially affect title thereto.
(c) Except as has been previously disclosed in the Vietnam SEA Fund
Disclosure Documents or in Developing Markets Trust's currently
effective prospectus, there is no material suit,judicial action, or
legal or administrative proceeding pending or threatened against
Vietnam SEA Fund or Developing Markets Trust, respectively.
(d) There are no known actual or proposed deficiency assessments with
respect to any taxes payable by it.
(e) The execution, delivery and performance of this Plan have been duly
authorized by all necessary action of the Board of Trustees of
Developing Markets Trust (the "Developing Markets Trust Board") or the
TEA Board, respectively, and this Plan constitutes a valid and binding
obligation enforceable in accordance with its terms.
(f) It anticipates that the consummation of this Plan will not cause either
Vietnam SEA Fund or Developing Markets Trust to fail to conform to the
requirements of Subchapter M of the Code for federal income taxation
as a RIC at the end of its fiscal year.
(g) It has the necessary power and authority to conduct its business as
such business is now being conducted.
7. COVENANTS OF VIETNAM SEA FUND AND DEVELOPING MARKETS TRUST.
(a) Vietnam SEA Fund and Developing Markets Trust each covenants to operate
its respective business as presently conducted between the date hereof
and the Closing.
(b) Vietnam SEA Fund undertakes that it will not acquire Developing Markets
Trust Shares for the purpose of making distributions thereof to anyone
other than Vietnam SEA Fund's shareholders.
(c) Vietnam SEA Fund undertakes that, if this Plan is consummated, it will
dissolve its corporate existence, file an application pursuant to
Section 8(f) of the 1940 Act for an order declaring that it has ceased
to be an investment company and take the necessary actions, including
making the necessary filings, to withdraw its shares from listing on
those stock exchanges on which Vietnam SEA Fund Shares are listed as
of the Closing Date.
(d) Vietnam SEA Fund and Developing Markets Trust each agrees that, by the
Closing, all of its federal and other tax returns and reports required
by law to be filed on or before such date shall have been filed, and
all federal and other taxes shown as due on said returns shall have
either been paid or had adequate liability reserves created for the
payment of such taxes.
(e) At the Closing, Vietnam SEA Fund will provide Developing Markets Trust
a copy of the shareholder ledger accounts, certified by Vietnam SEA
Fund's transfer agent or its President or a Vice President to the best
of its or his or her knowledge and belief, for all of the shareholders
of record of Vietnam SEA Fund Shares as of 4:00 p.m. Eastern time on
the Closing Date who are to become shareholders of Developing Markets
Trust as a result of the transfer of assets that is the subject of
this Plan.
(f) Vietnam SEA Fund agrees to mail to each of its shareholders of record
entitled to vote at the meeting of its shareholders at which action on
this Plan is to be considered, in sufficient time to comply with
requirements as to notice thereof, a combined Prospectus and Proxy
Statement that complies in all material respects with the applicable
provisions of Section 14(a) of the Securities Exchange Act of 1934, as
amended, and Section 20(a) of the 1940 Act, and the rules and
regulations, respectively, thereunder.
(g) Developing Markets Trust will file with the SEC a registration
statement on Form N-14 under the 1933 Act relating to Developing
Markets Trust Shares issuable hereunder (the "Developing Markets Trust
N-14 Registration Statement"), and will use its best efforts to
provide that the Developing Markets Trust N-14 Registration Statement
becomes effective as promptly as is practicable. At the time it
becomes effective, the Developing Markets Trust N-14 Registration
Statement will (i) comply in all material respects with the applicable
provisions of the 1933 Act, and the rules and regulations promulgated
thereunder; and (ii) not contain any untrue statement of material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the time
the Developing Markets Trust N-14 Registration Statement becomes
effective, at the time of Vietnam SEA Fund's shareholders' meeting to
consider this Plan, and at the Closing Date, the Prospectus and
Statement of Additional Information included in the Developing Markets
Trust N-14 Registration Statement will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(h) Vietnam SEA Fund and Developing Markets Trust each agrees that, before
the Closing, it will deliver to the other party a copy of the
resolutions, adopted and approved by the appropriate action of its
Board, certified by its President, a Vice President or an equivalent
officer of Vietnam SEA Fund or Developing Markets Trust, respectively,
approving the imposition by Developing Markets Trust of a 2%
redemption fee on those Developing Markets Trust Shares issued as part
of the Reorganization pursuant to this Plan to Vietnam SEA Fund
shareholders in exchange for their Vietnam SEA Fund Shares that are
redeemed or exchanged out of Developing Markets Trust within six (6)
months after the Closing Date.
8. CONDITIONS PRECEDENT TO BE FULFILLED BY VIETNAM SEA FUND AND DEVELOPING
MARKETS TRUST.
The consummation of this Plan hereunder shall be subject to the following
respective conditions:
(a) That: (i) all the representations and warranties of the other party
contained herein shall be true and correct as of the Closing with the
same effect as though made as of and at such date; (ii) the other
party shall have performed all obligations required by this Plan to be
performed by it prior to the Closing; and (iii) the other party shall
have delivered to such party a certificate signed by its President, a
Vice President or an equivalent officer to the foregoing effect.
(b) That each party shall have delivered to the other party a copy of the
resolutions approving the Plan adopted and approved by the appropriate
action of the Vietnam SEA Fund Board or Developing Markets Trust
Board, as appropriate, certified by its President, a Vice President or
an equivalent officer of Vietnam SEA Fund or Developing Markets Trust,
respectively.
(c) That the SEC shall not have issued an unfavorable management report
under Section 25(b) of the 1940 Act or instituted or threatened to
institute any proceeding seeking to enjoin consummation of the Plan
under Section 25(c) of the 1940 Act. And, further, no other legal,
administrative or other proceeding shall have been instituted or
threatened that would materially affect the financial condition of
either party or would prohibit the transactions contemplated hereby.
(d) That this Plan and the Reorganization contemplated hereby shall have
been adopted and approved by the appropriate action of the
shareholders of Vietnam SEA Fund at an annual or special meeting or
any adjournment thereof.
(e) That a distribution or distributions shall have been declared for
Vietnam SEA Fund prior to the Closing Date that, together with all
previous distributions, shall have the effect of distributing to its
shareholders (i) all of its ordinary income and all of its capital
gain net income, if any, for the period from the close of its last
fiscal year to 4:00 p.m. Eastern time on the Closing Date; and (ii)
any undistributed ordinary income and capital gain net income from any
period to the extent not otherwise declared for distribution. Capital
gain net income has the meaning given such term by Section 1222(a) of
the Code.
(f) That there shall be delivered to Vietnam SEA Fund and Developing
Markets Trust an opinion from Messrs. Stradley, Ronon, Xxxxxxx &
Young, LLP, counsel to Vietnam SEA Fund and Developing Markets Trust,
to the effect that, provided the acquisition contemplated hereby is
carried out in accordance with this Plan and the laws of the State of
Maryland and the Commonwealth of Massachusetts, and based upon
certificates of the officers of Vietnam SEA Fund and Developing
Markets Trust with regard to matters of fact:
(1) The acquisition by Developing Markets Trust of substantially all
the assets of Vietnam SEA Fund as provided for herein in exchange
for Developing Markets Trust Shares followed by the distribution
by Vietnam SEA Fund to its shareholders of Developing Markets
Trust Shares in complete liquidation of Vietnam SEA Fund will
qualify as a reorganization within the meaning of Section
368(a)(1) of the Code, and Vietnam SEA Fund and Developing
Markets Trust will each be a "party to the reorganization" within
the meaning of Section 368(b) of the Code;
(2) No gain or loss will be recognized by Vietnam SEA Fund upon the
transfer of substantially all of its assets to Developing Markets
Trust in exchange solely for voting shares of Developing Markets
Trust (Sections 361(a) and 357(a) of the Code);
(3) No gain or loss will be recognized by Developing Markets Trust
upon the receipt of substantially all of the assets of Vietnam
SEA Fund in exchange solely for voting shares of Developing
Markets Trust (Section 1032(a) of the Code);
(4) No gain or loss will be recognized by Vietnam SEA Fund upon the
distribution of Developing Markets Trust Shares to its
shareholders in liquidation of Vietnam SEA Fund (in pursuance of
the Plan) (Section 361(c)(1) of the Code);
(5) The basis of the assets of Vietnam SEA Fund received by Developing
Markets Trust will be the same as the basis of such assets to
Vietnam SEA Fund immediately prior to the reorganization (Section
362(b) of the Code);
(6) The holding period of the assets of Vietnam SEA Fund received by
Developing Markets Trust will include the period during which
such assets were held by Vietnam SEA Fund (Section 1223(2) of the
Code);
(7) No gain or loss will be recognized to the shareholders of Vietnam
SEA Fund upon the exchange of their shares in Vietnam SEA Fund
for voting shares of Developing Markets Trust, including
fractional shares to which they may be entitled (Section 354(a)
of the Code);
(8) The basis of Developing Markets Trust Shares received by the
shareholders of Vietnam SEA Fund shall be the same as the basis
of the Vietnam SEA Fund Shares exchanged therefor (Section
358(a)(1) of the Code);
(9) The holding period of Developing Markets Trust Shares received by
shareholders of Vietnam SEA Fund (including fractional shares to
which they may be entitled) will include the holding period of
the Vietnam SEA Fund Shares surrendered in exchange e, provided
that the Vietnam SEA Fund Shares were held as a capital asset on
the effective date of the exchange (Section 1223(1) of the Code);
and
(10) Developing Markets Trust will succeed to and take into account as
of the date of the transfer (as defined in Section 1.381(b)-1(b)
of the regulations issued by the United States Treasury
("Treasury Regulations")) the items of Vietnam SEA Fund described
in Section 381(c) of the Code, subject to the conditions and
limitations specified in Sections 381, 382, 383 and 384 of the
Code and the Treasury Regulations.
(g) That there shall be delivered to Developing Markets Trust an opinion in
form and substance satisfactory to it from Xxxxxxxx Ronon Xxxxxxx &
Young, LLP, counsel to Vietnam SEA Fund, to the effect that, subject
in all respects to the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws now
or hereafter affecting generally the enforcement of creditors' rights:
(1) Vietnam SEA Fund is a corporation incorporated under the laws of
the State of Maryland on July 19, 1994, and is a validly existing
corporation and in good standing under the laws of that state;
(2) Vietnam SEA Fund is authorized to issue one hundred million
(100,000,000) shares of common stock, par value $0.01 per share.
Vietnam SEA Fund currently issues shares of one (1) class and it
has not designated any series of shares. Assuming that the
initial shares of common stock of Vietnam SEA Fund were issued in
accordance with the 1940 Act and the Vietnam SEA Fund Corporate
Documents, and that all other outstanding shares of Vietnam SEA
Fund were sold, issued and paid for in compliance in all material
respects with applicable registration requirements of the 1933
Act, each such outstanding share is fully paid, non-assessable,
freely transferable and has full voting rights in accordance with
the terms of the Vietnam SEA Fund Corporate Documents;
(3) Vietnam SEA Fund is a closed-end non-diversified investment
company of the management type registered as such under the 1940
Act;
(4) Except as disclosed in the Vietnam SEA Fund Disclosure Documents,
such counsel does not know of any material suit, action or legal
or administrative proceeding pending or threatened against
Vietnam SEA Fund, the unfavorable outcome of which would
materially and adversely affect Vietnam SEA Fund;
(5) All corporate actions required to be taken by Vietnam SEA Fund to
authorize this Plan and to effect the Reorganization contemplated
hereby have been duly authorized by all necessary action on the
part of Vietnam SEA Fund; and
(6) The execution, delivery or performance of this Plan by Vietnam SEA
Fund will not violate any provision of the Vietnam SEA Fund
Corporate Documents, or the provisions of any agreement or other
instrument known to such counsel to which Vietnam SEA Fund is a
party or by which Vietnam SEA Fund is otherwise bound; this Plan
is the legal, valid and binding obligation of Vietnam SEA Fund
and is enforceable against Vietnam SEA Fund in accordance with
its terms.
In giving the opinions set forth above, this counsel may state that it is
relying on certificates of the officers of Vietnam SEA Fund with regard to
matters of fact, and certain certifications and written statements of
governmental officials with respect to the good standing of Vietnam SEA Fund.
(h) That there shall be delivered to Vietnam SEA Fund an opinion in form
and substance satisfactory to it from Xxxxxxxx Ronon Xxxxxxx & Xxxxx,
LLP, counsel to Developing Markets Trust, to the effect that, subject
in all respects to the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws now
or hereafter affecting generally the enforcement of creditors' rights:
(1) Developing Markets Trust is a business trust formed under the laws
of the Commonwealth of Massachusetts on August 9, 1991 and is a
validly existing business trust and in good standing under the
laws of that Commonwealth;
(2) Developing Markets Trust is authorized to issue an unlimited
number of shares of beneficial interest, par value $0.01 per
share. Developing Markets Trust is further divided into five
classes of shares of which Developing Markets Trust - Advisor
Class Shares is one, and an unlimited number of shares of
beneficial interest, par value $0.01 per share, has been
allocated and designated to Developing Markets Trust Shares.
Assuming that the initial Developing Markets Trust Shares of
beneficial interest were issued in accordance in all material
respects with the 1940 Act and the Developing Markets Trust Trust
Documents, and that all other outstanding shares of Developing
Markets Trust were sold, issued and paid for in accordance in all
material respects with the terms of Developing Markets Trust's
prospectus in effect at the time of such sales, each such
outstanding share is fully paid, non-assessable, freely
transferable and has full voting rights in accordance with the
terms of the Developing Markets Trust Trust Documents;
(3) Developing Markets Trust is an open-end, diversified investment
company of the management type registered as such under the 1940
Act;
(4) Except as disclosed in Developing Markets Trust's currently
effective prospectus, such counsel does not know of any material
suit, action or legal or administrative proceeding pending or
threatened against Developing Markets Trust, the unfavorable
outcome of which would materially and adversely affect Developing
Markets Trust;
(5) Developing Markets Trust Shares to be issued pursuant to the terms
of this Plan have been duly authorized and, when issued and
delivered as provided in this Plan, will have been validly issued
and fully paid and will be non-assessable by Developing Markets
Trust;
(6) All trust actions required to be taken by Developing Markets Trust
to authorize this Plan and to effect the Reorganization
contemplated hereby have been duly authorized by all necessary
action on the part of Developing Markets Trust;
(7) The execution, delivery or performance of this Plan by Developing
Markets Trust will not violate any provision of the Developing
Markets Trust Trust Documents, or the provisions of any agreement
or other instrument known to such counsel to which Developing
Markets Trust is a party or by which Developing Markets Trust is
otherwise bound; this Plan is the legal, valid and binding
obligation of Developing Markets Trust and is enforceable against
Developing Markets Trust in accordance with its terms; and
(8) The Developing Markets Trust N-14 Registration Statement has been
declared or, by operation of rule, has become effective under the
1933 Act, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of such Registration Statement
has been issued, and no proceedings for such purpose have been
instituted or are pending before or threatened by the SEC under
the 1933 Act, and nothing has come to counsel's attention that
causes it to believe that, at the time the Developing Markets
Trust N-14 Registration Statement became effective, or at the
Closing, such Registration Statement (except for the financial
statements and other financial and statistical data included
therein, as to which counsel need not express an opinion),
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; and such counsel
knows of no legal or government proceedings required to be
described in the Developing Markets Trust N-14 Registration
Statement, or of any contract or document of a character required
to be described in the Developing Markets Trust N-14 Registration
Statement that is not described as required.
In giving the opinions set forth above, this counsel may state that it is
relying on certificates of the officers of Developing Markets Trust with regard
to matters of fact, and certain certifications and written statements of
governmental officials with respect to the good standing of Developing Markets
Trust.
(i) That Vietnam SEA Fund shall have received a certificate from the
President or a Vice President of Developing Markets Trust to the
effect that, to the best knowledge and belief of such officer, the
statements contained in the Developing Markets Trust N-14 Registration
Statement, at the time the Developing Markets Trust N-14 Registration
Statement became effective, at the date of the signing of this Plan,
and at the Closing, 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.
(j) That the Developing Markets Trust N-14 Registration Statement with
respect to Developing Markets Trust Shares to be delivered to Vietnam
SEA Fund's shareholders in accordance with this Plan shall have become
effective, and no stop order suspending the effectiveness of the
Developing Markets Trust N-14 Registration Statement or any amendment
or supplement thereto, shall have been issued prior to the Closing
Date or shall be in effect at Closing, and no proceedings for the
issuance of such an order shall be pending or threatened on that date.
(k) That Developing Markets Trust Shares to be delivered hereunder shall be
eligible for sale with each state commission or agency with which such
eligibility is required in order to permit Developing Markets Trust
Shares lawfully to be delivered to each holder of Vietnam SEA Fund
Shares.
(l) That, at the Closing, there shall be transferred to Developing Markets
Trust, aggregate Net Assets of Vietnam SEA Fund comprising at least
90% in fair market value of the total net assets and 70% of the fair
market value of the total gross assets recorded on the books of
Vietnam SEA Fund on the Closing Date.
(m) That there be delivered to Developing Markets Trust information
concerning the tax basis of Vietnam SEA Fund in all securities
transferred to Developing Markets Trust, together with shareholder
information including the names, addresses and taxpayer identification
numbers of the shareholders of Vietnam SEA Fund as of the Closing
Date, the number of shares held by each shareholder, the dividend
reinvestment elections applicable to each shareholder, and the backup
withholding and nonresident alien withholding certifications, notices
or records on file with Vietnam SEA Fund with respect to each
shareholder.
(n) That all consents of other parties, and all other consents, orders and
permits of federal, state and local regulatory authorities (including
those of the SEC and of state Blue Sky securities authorities,
including any necessary "no-action" positions or exemptive orders from
such federal and state authorities), required to permit consummation
of the Reorganization contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would
not involve a risk of a material adverse effect on the assets or
properties of Vietnam SEA Fund or Developing Markets Trust.
9. BROKERAGE FEES AND EXPENSES.
(a) Vietnam SEA Fund and Developing Markets Trust each represents and
warrants to the other that there are no broker or finders' fees
payable by it in connection with the transactions provided for herein.
(b) The expenses of entering into and carrying out the provisions of this
Plan shall be borne one-fourth by Developing Markets Trust, one-fourth
by Vietnam SEA Fund and one-half by Xxxxxxxxx Asset Management Ltd.
10. TERMINATION; POSTPONEMENT; WAIVER; ORDER.
(a) Anything contained in this Plan to the contrary notwithstanding, this
Plan may be terminated and the Reorganization abandoned at any time
(whether before or after approval thereof by the shareholders of
Vietnam SEA Fund) prior to the Closing, or the Closing may be
postponed as follows:
(1) by mutual consent of Vietnam SEA Fund and Developing Markets
Trust;
(2) by Developing Markets Trust if any condition of its obligations
set forth in Section 8 has not been fulfilled or waived; or
(3) by Vietnam SEA Fund if any condition of its obligations set forth
in Section 8 has not been fulfilled or waived.
An election by Vietnam SEA Fund or Developing Markets Trust to terminate
this Plan and to abandon the Reorganization shall be exercised by the Vietnam
SEA Fund Board or the Developing Markets Trust Board, respectively.
(b) If the transactions contemplated by this Plan have not been consummated
by December 31, 2002, the Plan shall automatically terminate on that
date, unless a later date is agreed to by both the Vietnam SEA Fund
Board and the Developing Markets Trust Board.
(c) In the event of termination of this Plan pursuant to the provisions
hereof, the Plan shall become void and have no further effect, and
neither Vietnam SEA Fund nor Developing Markets Trust, nor their
trustees, directors, officers or agents or the shareholders of Vietnam
SEA Fund or Developing Markets Trust shall have any liability in
respect of this Plan.
(d) At any time prior to the Closing, any of the terms or conditions of
this Plan may be waived by the party who is entitled to the benefit
thereof by action taken by the Developing Markets Trust Board or
Vietnam SEA Fund Board, as the case may be, if, in the judgment of
such Board, such action or waiver will not have a material adverse
effect on the benefits intended under this Plan to its shareholders,
on behalf of whom such action is taken.
(e) The respective representations and warranties contained in Sections 4
through 6 hereof shall expire with and be terminated by the
Reorganization, and neither Vietnam SEA Fund nor Developing Markets
Trust, nor any of their officers, trustees, directors, agents or
shareholders shall have any liability with respect to such
representations or warranties after the Closing. This provision shall
not protect any officer, trustee, director, agent or shareholder of
Vietnam SEA Fund or Developing Markets Trust against any liability to
the entity for which that officer, trustee, director, agent or
shareholder so acts or to its shareholders to which that officer,
trustee, 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.
(f) If any order or orders of the SEC with respect to this Plan shall be
issued prior to the Closing and shall impose any terms or conditions
that are determined by action of the Vietnam SEA Fund Board and the
Developing Markets Trust Board to be acceptable, such terms and
conditions shall be binding as if a part of this Plan without further
vote or approval of the shareholders of Vietnam SEA Fund, unless such
terms and conditions shall result in a change in the method of
computing the number of Developing Markets Trust Shares to be issued
to Vietnam SEA Fund in which event, unless such terms and conditions
shall have been included in the proxy solicitation material furnished
to the shareholders of Vietnam SEA Fund prior to the meeting at which
the transactions contemplated by this Plan shall have been approved,
this Plan shall not be consummated and shall terminate unless Vietnam
SEA Fund shall promptly call a special meeting of its shareholders at
which such conditions so imposed shall be submitted for approval.
11. ENTIRE AGREEMENT AND AMENDMENTS.
This Plan embodies the entire agreement between the parties and there are
no agreements, understandings, restrictions or warranties relating to the
transactions contemplated by this Plan other than those set forth herein or
herein provided for. This Plan may be amended only by mutual consent of the
parties in writing. Neither this Plan nor any interest herein may be assigned
without the prior written consent of the other party.
12. COUNTERPARTS.
This Plan may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts together shall
constitute but one instrument.
13. NOTICES.
(a) Any notice, report or demand required or permitted by any provision of
this Plan shall be in writing and shall be deemed to have been given
to Vietnam SEA Fund if delivered or mailed, first class postage
prepaid, addressed to Xxxxxxxxx Vietnam and Southeast Asia Fund, Inc.,
at 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Secretary.
(b) Any notice, report or demand required or permitted by any provision of
this Plan shall be in writing and shall be deemed to have been given
to Developing Markets Trust if delivered or mailed, first class
postage prepaid, addressed to Xxxxxxxxx Developing Markets Trust, at
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention:
Secretary.
14. GOVERNING LAW.
This Plan shall be governed by and carried out in accordance with the laws
of the State of Maryland.
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IN WITNESS WHEREOF, Vietnam SEA Fund and Developing Markets Trust have each
caused this Plan to be executed on its behalf by its duly authorized officers,
all as of the date and year first-above written.
XXXXXXXXX VIETNAM AND
SOUTHEAST ASIA FUND, INC.
Attest:/s/XXXX X. XXXXX By:/s/XXXXX X. XXXX
------------------------------------ ---------------------------
Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: Assistant Secretary Title: Vice President and
Assistant Secretary
XXXXXXXXX DEVEOPING MARKETS
TRUST
Attest:/s/XXXX X. XXXXX By:/s/XXXXXX X. XXXXXXX
------------------------------------ ---------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary Title: Vice President and
Assistant Secretary
