EXHIBIT A
FORM OF
MERGER AGREEMENT AND PLAN OF REORGANIZATION
MERGER AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
JAKARTA GROWTH FUND, INC.
AND
THE INDONESIA FUND, INC.
DATED AS OF OCTOBER 18, 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
3. REPRESENTATIONS AND WARRANTIES OF JAKARTA GROWTH FUND, INC.
2
3.1. Organization 2
3.2. Registrations and Qualifications 2
3.3. Regulatory Consents and Approvals 2
3.4. Noncontravention 3
3.5. Financial Statements 3
3.6. Annual Report 3
3.7. Qualification, Corporate Power, Authorization of
Transaction 3
3.8. Legal Compliance 3
3.9. Material Contracts 3
3.10. Undisclosed Liabilities 4
3.11. Tax Filings 4
3.12. Qualification under Subchapter M 4
3.13. Form N-14 4
3.14. Capitalization. 5
3.15. Books and Records 5
3.16. No Finder's Fees 5
4. REPRESENTATIONS AND WARRANTIES OF THE INDONESIA FUND, INC.
5
4.1. Organization 5
4.2. Registrations and Qualifications 5
4.3. Regulatory Consents and Approvals 6
4.4. Noncontravention 6
4.5. Financial Statements 6
4.6. Annual Report 6
4.7. Qualification, Corporate Power, Authorization of Transaction
6
4.8. Legal Compliance 7
4.9. Material Contracts 7
4.10. Undisclosed Liabilities 7
4.11. Tax Filings 7
4.12. Qualification under Subchapter M 7
4.13. Form N-14 8
4.14. Capitalization. 8
4.15. No Finder's Fees 8
4.16. Books and Records 8
4.17. NYSE Continued Listing 8
5. CONVERSION TO INDONESIA FUND, INC. COMMON STOCK 8
5.1. Conversion. 8
5.2. Computation of Net Asset Value 9
5.3. Issuance of The Indonesia Fund, Inc. Common Stock
9
5.4. Exchange of Certificates Representing The Jakarta Growth
Fund, Inc. Common Stock. 9
6. COVENANTS OF THE PARTIES 11
6.1. Shareholders' Meetings. 11
6.2. Operations in the Normal Course 11
6.3. Articles of Merger 12
6.4. Regulatory Filings. 12
6.5. Preservation of Assets 12
6.6. Tax Matters. 12
6.7. Shareholder List 13
6.8. Termination of Registration as an Investment Company
13
6.9. Indemnification. 13
6.10. Applicability of Maryland Business Combination Act
14
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE INDONESIA FUND,
INC. 14
7.1. Approval of Merger; NYSE Listing; Appraisal Rights. 14
7.2. Certificates and Statements by the Jakarta Growth Fund, Inc.
15
7.3. Absence of Litigation 15
7.4. Legal Opinions. 16
7.5. Auditor's Consent and Certification. 17
7.6. Liabilities 18
7.7. Effectiveness of N-14 Registration Statement 18
7.8. Regulatory Filings 18
7.9. Administrative Rulings, Proceedings 18
7.10. Dividends 18
7.11. Custodian's Certificate 19
7.12. Books and Records 19
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF JAKARTA GROWTH
FUND, INC. 19
8.1. Approval of Merger 19
8.2. Certificates and Statements by the Indonesia Fund, Inc. 19
8.3. Absence of Litigation 20
8.4. Legal Opinions. 20
8.5. Auditor's Consent and Certification. 22
8.6. Effectiveness of N-14 Registration Statement 22
8.7. Regulatory Filings. 23
8.8. Satisfaction of the Jakarta Growth Fund, Inc 23
8.9. Dividends 23
9. PAYMENT OF EXPENSES 23
9.1. Allocation 23
10. COOPERATION FOLLOWING EFFECTIVE DATE 24
11. INDEMNIFICATION 24
11.1. Jakarta Growth Fund, Inc 24
11.2. The Indonesia Fund, Inc 24
12. TERMINATION, POSTPONEMENT AND WAIVERS 24
12.1. Termination. 24
12.2. Waiver 25
12.3. Expiration of Representations and Warranties. 25
13. MISCELLANEOUS 26
13.1. Transfer Restriction 26
13.2. Material Provisions 26
13.3. Notices 26
13.4. Amendments 27
13.5. Headings 27
13.6. Counterparts 28
13.7. Enforceability 28
13.8. Successors and Assigns 28
13.9. Governing Law 28
THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made as of this 18th day of October, 2000, between Jakarta Growth
Fund, Inc. (the "Target Fund" or the "Jakarta Fund"), a Maryland
corporation and a registered investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and The Indonesia
Fund, Inc. (the "Acquiring Fund" or the "Indonesia Fund" and,
together with the Target Fund, the "Parties"), a Maryland corporation
and a registered investment company under the 1940 Act.
WHEREAS, 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 Indonesia Fund shall be the surviving investment
company. The Jakarta Fund shall cease to exist as a separate
investment company.
Each share of Common Stock, par value $0.10 per share, of the Jakarta
Fund will be converted into an equivalent dollar amount (to the
nearest one ten-thousandth of one cent) of full shares (and the
right to receive cash in lieu of fractional shares) of Common Stock,
par value $0.001 per share, of the Indonesia Fund 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 Indonesia Fund will be issued
to Jakarta Fund shareholders. In lieu thereof, the Indonesia Fund
will purchase all fractional shares at their current net asset value
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. Any objecting shareholder of the Jakarta Fund will
have the rights of objecting shareholders in accordance with Title 3,
Subtitle 2 of the Maryland General Corporation Law. 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 Fund shall possess
all of the properties, assets, rights, privileges, and powers and
shall be subject to all of the restrictions, liabilities,
obligations, disabilities and duties of the Jakarta Fund, all as
provided under Maryland law.
The parties intend that the Merger qualify as a reorganization under
Section 368(a)(1)(A) of the Code.
2.2. Actions at Closing. At the closing of the transactions
contemplated by this Agreement (the "Closing") on the date thereof
(the "Closing Date"), (i) the Jakarta Fund will deliver to the
Indonesia Fund the various certificates and documents referred to
in Article 7 below, (ii) the Indonesia Fund will deliver to the
Jakarta Fund the various certificates and documents referred to in
Article 8 below, and (iii) the Jakarta Fund and the Indonesia 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
Jakarta Fund shall cease. As promptly as practicable after the
Merger, the Jakarta Fund's registration under the 1940 Act shall
be terminated. Any reporting responsibility of the Jakarta Fund
is, and shall remain, the responsibility of the Jakarta Fund up
to and including the Effective Date.
3. REPRESENTATIONS AND WARRANTIES OF JAKARTA GROWTH FUND, INC.
The Jakarta Fund represents and warrants to the Indonesia 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 Jakarta Fund represents and
warrants to, and agrees with, the Indonesia Fund that:
3.1. Organization. The Jakarta Fund is a corporation duly organized
and validly existing under the laws of the State of Maryland and is
in good standing with the Department, and has the requisite
corporate 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 Jakarta Fund is duly
registered under the 1940 Act as a closed-end, non-diversified
management investment company (File No. 811-06035), and such
registration has not been revoked or rescinded and is in full force
and effect. The Jakarta 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 and intends to continue to so qualify for its taxable
year ending upon the Merger. The Jakarta 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 Jakarta 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 Jakarta Fund of the
transactions contemplated herein, except (i) such as have been
obtained or applied for under the Securities Act of 1933, as amended
(the "1933 Act"), the Securities Exchange Act of 1934 (the "1934
Act") and the 1940 Act, (ii) such as may be required by state
securities laws and (iii) such as may be required under Maryland
law for the acceptance for record of the Articles of Merger by the
Department.
3.4. Noncontravention. The Jakarta Fund is not, and the execution,
delivery and performance of this Agreement by the Jakarta Fund will
not result, in any violation of the laws of the State of Maryland or
of the Articles of Incorporation or the Bylaws of the Jakarta Fund,
or of any material agreement, indenture, instrument, contract, lease
or other undertaking to which the Jakarta Fund is a party or by which
it is bound, and the execution, delivery and performance of this
Agreement by the Jakarta 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 Jakarta Fund is a party or by which it is
bound.
3.5. Financial Statements. The Indonesia Fund has been furnished
with a statement of assets, liabilities and capital and a schedule
of investments of the Jakarta Fund, each as of March 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 Jakarta Fund as of such date
in accordance with GAAP, and there are no known contingent
liabilities of the Jakarta 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 Indonesia Fund has been furnished with the
Jakarta Fund's Annual Report to Shareholders for the fiscal year
ended March 31, 2000.
3.7. Qualification, Corporate Power, Authorization of Transaction.
The Jakarta Fund has full corporate 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,
including at least 2/3 of the total number of directors in
accordance with its Bylaws, pursuant to Article XIII of its Articles
of Incorporation, 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 Jakarta Fund
or any properties or assets held by it. The Jakarta 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 Jakarta Fund is a party that have not been disclosed in
the N-14 Registration Statement (as defined in Section 3.13 below)
or not otherwise disclosed in writing to the Indonesia Fund prior to
the date of this Agreement.
3.10. Undisclosed Liabilities. Since March 31, 2000, there has not
been any material adverse change in the Jakarta Fund's financial
condition, assets, liabilities or business and the Jakarta 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 Jakarta 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
April 1, 2000, and those incurred in connection with the Merger.
Prior to the Effective Date, the Jakarta Fund will advise the
Indonesia 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 the net asset value per share of the Jakarta Fund due
to declines in market values of securities in the Jakarta Fund's
portfolio or the discharge of Jakarta Fund liabilities will not
constitute a material adverse change.
3.11. Tax Filings. All federal and other tax returns and information
reports of the Jakarta Fund required by law to have been filed
shall have been filed, or extensions to file such returns or reports
shall have been obtained, 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 Jakarta 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 Jakarta Fund
have been adequately provided for on its books, and no tax deficiency
or liability of the Jakarta 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 Jakarta 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. As of June 30, 2000 and September 30,
2000, the Jakarta Fund has met the requirements of Subchapter M of
the Code for qualification as a RIC.
3.13. Form N-14. The registration statement to be filed by the
Indonesia Fund on Form N-14 relating to the Indonesia Fund Common
Stock to be issued pursuant to this Agreement, and any supplements
or amendments 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 Jakarta 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 Jakarta Fund in writing for use in the N-14 Registration
Statement.
3.14. Capitalization.
(a) All issued and outstanding shares of the Jakarta 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 Jakarta Fund does
not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Jakarta Fund shares, nor is
there outstanding any security convertible into, or exchangeable
for, any of the Jakarta Fund shares.
(b) The Jakarta Fund is authorized to issue 100,000,000 shares of
stock, par value $0.10 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 Jakarta Fund
made available to the Indonesia Fund are substantially true and
correct and contain no material misstatements or omissions with
respect to the operations of the Jakarta Fund.
3.16. No Finder's Fees. The Jakarta Fund does not owe any broker's
or finder's fee in connection with the transactions provided for in
this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE INDONESIA FUND, INC.
The Indonesia Fund represents and warrants to the Jakarta 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 Indonesia Fund represents and warrants to, and
agrees with, the Jakarta Fund that:
4.1. Organization. The Indonesia Fund is a corporation duly
organized and validly existing under the laws of the State of
Maryland and is in good standing with the Department, and has the
requisite corporate 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 Indonesia Fund is duly
registered under the 1940 Act as a closed-end, non-diversified
management investment company (File No. 811-06024) and such
registration has not been revoked or rescinded and is in full
force and effect. The Indonesia 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 and intends to
continue to so qualify both until consummation of the Merger
and thereafter. The Indonesia 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 Indonesia 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 Indonesia Fund of the
transactions contemplated herein, except (i) such as have been
obtained or applied for under the 1933 Act, the 1934 Act and
the 1940 Act, (ii) such as may be required by state securities
laws and (iii) such as may be required under Maryland law for
the acceptance for record of the Articles of Merger by the
Department.
4.4. Noncontravention. The Indonesia Fund is not, and the
execution, delivery and performance of this Agreement by the
Indonesia Fund will not result, in any violation of the laws
of the State of Maryland or of the Articles of Incorporation
or the Bylaws of the Indonesia Fund, or of any material agreement,
indenture, instrument, contract, lease or other undertaking to
which the Indonesia Fund is a party or by which it is bound, and
the execution, delivery and performance of this Agreement by the
Indonesia 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 Indonesia Fund is a party or by which it is bound.
4.5. Financial Statements. The Jakarta Fund has been furnished
with a statement of assets, liabilities and capital and a schedule
of investments of the Indonesia Fund, each as of December 31,
1999, said financial statements having been examined by
PricewaterhouseCoopers LLP, independent public accountants.
These financial statements are in accordance with GAAP and present
fairly, in all material respects, the financial position of the
Indonesia Fund as of such date in accordance with GAAP, and there
are no known contingent liabilities of the Indonesia 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 Jakarta Fund has been furnished with an unaudited statement of
assets, liabilities and capital and a schedule of investments of
the Indonesia Fund, each as of June 30, 2000. This financial
statement and schedule of investments are in accordance with GAAP
and present fairly, in all material respects the financial position
of the Indonesia Fund as of such date in accordance with GAAP, and
there are no known contingent liabilities of the Indonesia 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 Jakarta Fund has been furnished with the
Indonesia Fund's Annual Report to Shareholders for the fiscal year
ended December 31, 1999.
4.7. Qualification, Corporate Power, Authorization of Transaction.
The Indonesia Fund has full corporate 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
(including the approval of at least 75% of the "Continuing Directors"
in accordance with Article VII of its Articles of Incorporation,
as amended), 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 (in which service of process has been
received) or to its knowledge threatened against the Indonesia Fund
or any properties or assets held by it. The Indonesia 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 Indonesia Fund is a party that have not been disclosed
in the N-14 Registration Statement or not otherwise disclosed in
writing to the Jakarta Fund prior to the date of this Agreement.
4.10. Undisclosed Liabilities. Since December 31, 1999, there has
not been any material adverse change in the Indonesia Fund's
financial condition, assets, liabilities, or business and the
Indonesia 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
Indonesia Fund's statements of assets, liabilities and capital
referred to above, those incurred in the ordinary course of its
business as an investment company since January 1, 2000, and those
incurred in connection with the Merger. Prior to the Effective
Date, the Indonesia Fund will advise the Jakarta 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 the net asset value
per share of the Indonesia Fund due to declines in market values of
securities in the Indonesia Fund's portfolio or the discharge of the
Indonesia Fund liabilities will not constitute a material adverse
change.
4.11. Tax Filings. All federal and other tax returns and
information reports of the Indonesia Fund required by law to have
been filed shall have been filed, or extensions to file such returns
or reports shall have been obtained, 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 Indonesia 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 Indonesia Fund
have been adequately provided for on its books, and no tax deficiency
or liability of the Indonesia 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 Indonesia 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. As of March 31, 2000 and June 30, 2000
and September 30, 2000, the Indonesia Fund has met the requirements
of Subchapter M of the Code for qualification as a RIC.
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 Indonesia
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 Jakarta Fund in writing for use in the N-14
Registration Statement.
4.14. Capitalization.
(a) All issued and outstanding shares of the Indonesia 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
Indonesia Fund does not have outstanding any options, warrants or
other rights to subscribe for or purchase any of the Indonesia Fund
shares, nor is there outstanding any security convertible into, or
exchangeable for, any of the Indonesia Fund shares.
(b) The Indonesia 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. No Finder's Fees. The Indonesia Fund does not owe any broker's
or finder's fee in connection with the transactions provided for in
this Agreement.
4.16. Books and Records. The books and records of the Indonesia Fund
made available to the Jakarta Fund are substantially true and correct
and contain no material misstatements or omissions with respect to
the operations of the Indonesia Fund.
4.17. NYSE Continued Listing. The Indonesia Fund knows of no basis
upon which the NYSE would delist the Indonesia Fund's Common Stock
after the Effective Date, except to the extent that the Indonesia
Fund's market capitalization or share price falls below the continued
listing requirements specified in the NYSE rules.
5. CONVERSION TO INDONESIA 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 Jakarta Fund
will be converted into an equivalent dollar amount (to the nearest
one ten-thousandth of one cent) of full shares (and the right to
receive cash in lieu of fractional shares) of Indonesia 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 Indonesia Fund will be issued to
Jakarta Fund shareholders. In lieu thereof, the Indonesia Fund will
purchase all fractional shares of the Indonesia Fund at the current
net asset value of shares of the Indonesia 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
Jakarta Fund as of the Valuation Time shall be determined by the
Indonesia Fund pursuant to the principles and procedures consistently
utilized by the Indonesia 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 Jakarta Fund when valuing its own assets and determining its
own liabilities. Such valuation and determination shall be made by
the Indonesia Fund in cooperation with the Jakarta Fund and shall be
confirmed in writing by the Indonesia Fund to the Jakarta Fund. The
net asset value per share of Indonesia Fund Common Stock shall be
determined in accordance with such procedures, and the Indonesia Fund
shall certify the computations involved.
5.3. Issuance of The Indonesia Fund, Inc. Common Stock. The
Indonesia Fund shall issue to the shareholders of the Jakarta Fund
separate certificates or share deposit receipts for the Indonesia
Fund Common Stock by delivering the certificates or share deposit
receipts evidencing ownership of the Indonesia Fund Common Stock to
BankBoston, N.A. c/o EquiServe, L.P., as the transfer agent and
registrar for the Indonesia Fund Common Stock.
5.4. Exchange of Certificates Representing The Jakarta Growth Fund,
Inc. Common Stock.
(a) As of the Effective Date, the Indonesia Fund shall deposit, or
shall cause to be deposited, with an exchange agent selected by the
Indonesia Fund, which shall be The Indonesia Fund's transfer agent or
such other party reasonably satisfactory to the Jakarta Fund (the
"Exchange Agent"), for the benefit of the holders of shares of the
Jakarta Fund Common Stock, for exchange in accordance with this
Article 5, certificates representing the shares of the Indonesia
Fund to be issued in the Merger (the "Merger Consideration") and
cash in lieu of fractional shares of the Merger Consideration to
be issued pursuant to Section 5.1 and paid pursuant to this Section
5.4 in exchange for outstanding shares of the Jakarta Fund Common
Stock.
(b) Promptly after the Effective Date, the Indonesia Fund shall
cause the Exchange Agent to mail to each holder of record of a
Certificate or Certificates (i) a letter of transmittal which shall
specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon delivery of the Certificates
to the Exchange Agent and shall be in such form and have such other
provisions as the Indonesia Fund may reasonably specify and (ii)
instructions for use in effecting the surrender of the Certificates
in exchange for certificates representing the Merger Consideration
and cash in lieu of fractional shares of the Merger Consideration.
Upon surrender of a Certificate for cancellation to the Exchange
Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, the holder
of such Certificate shall be entitled to receive in exchange therefor
(x) certificates representing the number of whole shares of the Merger
Consideration and (y) a check representing the amount of cash in lieu
of fractional shares of the Merger Consideration, if any, and unpaid
dividends and distributions, if any, which such holder has the right
to receive in respect of the Certificate surrendered pursuant to the
provisions of this Article 5, after giving effect to any required
withholding tax, and the Certificate so surrendered shall forthwith
be cancelled. No interest will be paid or accrued on the cash in
lieu of fractional shares of the Merger Consideration and unpaid
dividends and distributions, if any, payable to holders of
Certificates. In the event of a transfer of ownership of the Jakarta
Fund Common Stock which is not registered in the transfer records of
the Jakarta Fund, certificates representing the proper number of
shares of the Merger Consideration, together with a check for the
cash to be paid in lieu of fractional shares of the Merger
Consideration, may be issued to such a transferee if the Certificate
representing shares of such the Jakarta Fund Common Stock is
presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that
any applicable stock transfer taxes have been paid.
(c) Notwithstanding any other provisions of this Agreement, no
dividends or other distributions on the Merger Consideration shall
be paid with respect to any shares of the Jakarta Fund Common Stock
represented by a Certificate until such Certificate is surrendered
for exchange as provided herein. Subject to the effect of applicable
laws, following surrender of any such Certificate, there shall be
paid to the holder of the certificates representing whole shares of
the Merger Consideration issued in exchange therefor, without
interest, (i) at the time of such surrender, the amount of dividends
or other distributions with a record date after the Effective Date
theretofore payable with respect to such whole shares of the Merger
Consideration and not paid, less the amount of any withholding taxes
which may be required thereon, and (ii) at the appropriate payment
date, the amount of dividends or other distributions with a record
date after the Effective Date but prior to surrender and a payment
date subsequent to surrender payable with respect to such whole
shares of the Merger Consideration, less the amount of any
withholding taxes which may be required thereon.
(d) At and after the Effective Date, there shall be no transfers
on the stock transfer books of the Jakarta Fund of the shares of
the Jakarta Fund Common Stock which were outstanding immediately
prior to the Effective Date. If, after the Effective Date,
Certificates are presented to the Indonesia Fund, they shall be
cancelled and exchanged for certificates for whole shares of the
Merger Consideration and cash in lieu of fractional shares of the
Merger Consideration, if any, and unpaid dividends and distributions
deliverable in respect thereof pursuant to this Agreement in
accordance with the procedures set forth in this Article 5.
(e) Any portion of the Merger Consideration held by the Exchange
Agent (together with any cash in lieu of fractional shares of the
Merger Consideration and the proceeds of any investments thereof)
that remains unclaimed by the former stockholders of the Jakarta Fund
one year after the Effective Date shall be delivered to the Indonesia
Fund. Any former stockholders of the Jakarta Fund who have not
theretofore complied with this Article 5 shall thereafter look only
to the Indonesia Fund for payment of their shares constituting the
Merger Consideration, cash in lieu of fractional shares of the Merger
Consideration and unpaid dividends and distributions on the Merger
Consideration deliverable in respect of each share of the Jakarta
Fund Common Stock such stockholder holds as determined pursuant to
this Agreement, in each case, without any interest thereon.
(f) None of the Indonesia Fund, the Jakarta Fund, the Exchange Agent
or any other person shall be liable to any former holder of shares of
the Jakarta Fund Common Stock for any amount properly delivered to a
public official pursuant to applicable abandoned property, escheat or
similar laws.
(g) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if
required by the Indonesia Fund, the posting by such person of a bond
in such reasonable amount as the Indonesia Fund may direct as
indemnity against any claim that may be made against it with respect
to such Certificate, the Exchange Agent or the Indonesia Fund will
issue in exchange for such lost, stolen or destroyed Certificate the
Merger Consideration and cash in lieu of fractional shares of the
Indonesia Fund Common Stock, and unpaid dividends and distributions
on shares of the Merger Consideration, deliverable in respect thereof
pursuant to this Agreement.
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 Fund for December 28,
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 special 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 Jakarta
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 Jakarta 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
Jakarta Fund has ceased to be a registered investment company.
(b) The Indonesia Fund will file the N-14 Registration Statement
with the SEC and will use its best efforts to ensure that the N-14
Registration Statement becomes effective as promptly as practicable.
The Jakarta Fund agrees to cooperate fully with the Indonesia Fund,
and will furnish to the Indonesia 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 applicable state securities or blue sky
laws.
6.5. Preservation of Assets. The Indonesia Fund agrees that it has
no plan or intention to sell or otherwise dispose of the assets of
the Jakarta Fund to be acquired in the Merger, except for
dispositions made in the ordinary course of business and except
for dispositions necessary to comply with Section 6.6(a).
6.6. Tax Matters.
(a) The Indonesia Fund agrees that it intends to continue to qualify
for the special tax treatment afforded RICs under Sections 851-855 of
the Code at all times after the consummation of the Merger. The
Indonesia Fund agrees that it will use its reasonable best efforts
to take any and all actions necessary to satisfy all of the
requirements necessary to qualify for the special tax treatment
afforded RICs under Sections 851-855 of the Code at all times after
the consummation of the Merger. The Indonesia Fund also agrees that
it will dispose of any of its assets within thirty (30) days after
the date of the close of the Indonesia Fund's first fiscal quarter
ending after the Effective Date (the "First Quarter Closing Date")
as are necessary to ensure that the Indonesia Fund satisfies the
requirements under Section 851(b)(3) of the Code as of the First
Quarter Closing Date.
(b) 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 Indonesia 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 Jakarta 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 Indonesia 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 Jakarta Fund with respect to its final taxable year 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 Indonesia Fund (other
than for payment of taxes) in excess of any accrual for such expenses
by the Jakarta Fund in connection with the preparation and filing of
said tax returns and Forms 1099 after the Effective Date shall be
borne by the Indonesia Fund.
6.7. Shareholder List. Prior to the Effective Date, the Jakarta Fund
shall have made arrangements with its transfer agent to deliver to the
Indonesia Fund a list of the names and addresses of all of the
shareholders of record of the Jakarta Fund on the Effective Date
and the number of shares of Common Stock of the Jakarta Fund owned
by each such shareholder, certified by the Jakarta Fund's transfer
agent or President to the best of their knowledge and belief.
6.8. Termination of Registration as an Investment Company. The
Jakarta Fund agrees that the termination of its registration as an
investment company will be effected in accordance with applicable
law as soon as practicable following the Effective Date.
6.9. Indemnification.
(a) The Indonesia Fund and the Jakarta Fund agree that, to the extent
consistent with applicable law, including the 1940 Act, all rights to
indemnification and all limitations on liability existing in favor of
any director of the Jakarta Fund who is not an "affiliated person"
(as defined in Section 2(a)(3) of the 0000 Xxx) of the Jakarta Fund's
investment adviser (the "Indemnitees") as provided in the Jakarta
Fund's Articles of Incorporation, the Jakarta Fund's Bylaws or an
agreement between an Indemnitee and the Jakarta Fund as in effect as
of the date hereof and disclosed in writing to the Indonesia Fund
shall survive the Merger and continue in full force and effect in
respect of acts or omissions occurring on or prior to the Effective
Date (including in respect of acts or omissions in connection with
this Agreement or the Merger), including without limitation, the
rights to indemnification set forth in, and in accordance with,
Article VI of the Articles of Incorporation of Jakarta Fund; and
the Indonesia Fund, as the surviving corporation in the Merger,
assumes the obligation to provide the Indemnitees with such rights
to indemnification.
(b) Notwithstanding any other provisions hereof, the obligations of
the Indonesia Fund contained in this Section 6.9 shall be binding
upon the successors and assigns of the Indonesia Fund. In the event
the Indonesia Fund or any of its successors or assigns (A)
consolidates with or merges into any other person or entity or
(B) transfers all or substantially all of its properties or assets
to any person or entity, then, and in each case, proper provision
shall be made so that successors and assigns of the Indonesia Fund,
as the case may be, honor the indemnification obligations set forth
in this Section 6.9.
(c) The obligations of the Indonesia Fund under this Section 6.9 shall
not be terminated or modified in such a manner as to adversely affect
any Indemnitee to whom this Section 6.9 applies without the consent
of such affected Indemnitee (it being expressly agreed that the
Indemnitees to whom this Section 6.9 applies shall be third party
beneficiaries of this Section 6.9).
(d) The Indonesia Fund shall advance all expenses to any Indemnitee
incurred by enforcing the indemnity or other obligations provided for
in this Section 6.9 to the fullest extent permitted under applicable
law, including the 1940 Act. To the extent required by law, such
advancement of expenses shall be subject to delivery of an
undertaking to reimburse the Indonesia Fund if it is ultimately
determined that an Indemnitee is not entitled to indemnification.
6.10. Applicability of Maryland Business Combination Act. The
Jakarta Fund shall take such action as may be required by Article
IX of its Articles of Incorporation and the Maryland Business
Combination Act to render Article IX of its Articles of Incorporation
and the Maryland Business Combination Act inapplicable to the Merger
and other transactions contemplated by this Agreement.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE INDONESIA FUND, INC.
The obligations of the Indonesia Fund hereunder shall be subject to
the following conditions:
7.1. Approval of Merger; NYSE Listing; Appraisal Rights.
(a) This Agreement shall have been approved by the affirmative vote
of the holders of 66 2/3% of the shares of Common Stock of the
Indonesia 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 Jakarta Fund issued and outstanding and
entitled to vote thereon; and that the Jakarta Fund shall have
delivered to the Indonesia Fund a copy of the resolutions approving
this Agreement adopted by its Board of Directors and shareholders,
certified by its Secretary.
(b) The Indonesia Fund's shares shall have continued to be listed on
the NYSE through the Effective Date.
(c) The holders of not more than 10% of the outstanding shares of the
Jakarta Fund shall have, in accordance with Title 3, subtitle 2 of
the Maryland General Corporation Law, both: (i) filed with the
Jakarta Fund a written objection to the Merger prior to or at the
meeting of shareholders convened to consider the Merger, and (ii)
not voted in favor of the Merger in person or by proxy.
7.2. Certificates and Statements by the Jakarta Growth Fund, Inc.
(a) The Jakarta Fund shall have furnished a statement of assets,
liabilities and capital, together with a schedule of investments with
their respective dates of acquisition and tax costs, certified on its
behalf by its President (or any Vice President) and its Treasurer,
and a certificate executed by both such officers, dated the Effective
Date, certifying that there has been no material adverse change in
its financial position since March 31, 2000, other than changes in
its portfolio securities since that date or changes in the market
value of its portfolio securities.
(b) The Jakarta Fund shall have furnished to the Indonesia 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 the Jakarta Fund 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 date.
(c) The Jakarta Fund shall have delivered to the Indonesia 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 March 31,
2000, 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 Jakarta Fund for the period covered
thereby; and that for the period from April 1, 2000 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 April 1, 2000 to
and including the Effective Date and for any taxable year ending upon
the Effective Date or that the Jakarta 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 Indonesia Fund shall have received an opinion of Xxxxx &
Xxxx LLP, as counsel to the Jakarta Fund, in form and substance
reasonably satisfactory to the Indonesia Fund and dated the Effective
Date, to the effect that (i) the Jakarta Fund is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Maryland; (ii) the Agreement has been duly authorized,
executed and delivered by the Jakarta 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 Jakarta Fund, enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, 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 Jakarta Fund of the Merger, except such as
may be required under the 1933 Act, the 1934 Act, the 1940 Act, the
published rules and regulations of the SEC thereunder and such as
may be required under state securities or blue sky laws and except
for the acceptance by the Department of the Articles of Merger for
filing; (iv) such counsel does not know of any contracts or other
documents with respect to the Jakarta 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 Bylaws, as amended, or any agreement (known to
such counsel) to which the Jakarta Fund is a party or by which the
Jakarta 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 Jakarta Fund; and (vii) all corporate actions required to be
taken by the Jakarta Fund to authorize this Agreement and to effect
the Merger have been duly authorized by all necessary corporate
actions on behalf of the Jakarta Fund. In giving the opinion set
forth above, Xxxxx & Wood LLP may state that it is relying on
certificates of officers of the Jakarta Fund with regard to matters
of fact and certain certificates and written statements of
governmental officials with respect to the good standing of the
Jakarta Fund.
Such counsel 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 Jakarta 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 Jakarta 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
Jakarta 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 Jakarta 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 Jakarta Fund contained or
incorporated by reference in the N-14 Registration Statement.
(b) The Indonesia Fund shall have received an opinion from Xxxxxxx
Xxxx & Xxxxxxxxx, as counsel to the Indonesia 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 Jakarta Fund and the Indonesia 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 Jakarta
Fund as a result of the Merger or upon the conversion of Jakarta
Fund shares to Indonesia Fund Common Stock; (iii) no gain or loss
will be recognized by the Indonesia Fund as a result of the Merger;
(iv) no gain or loss will be recognized to the shareholders of the
Jakarta Fund upon the conversion of their Jakarta Fund shares into
Indonesia Fund Common Stock except to the extent such shareholders
are paid cash in lieu of fractional shares of Indonesia Fund in the
Merger; (v) the tax basis of the Jakarta Fund assets in the hands
of the Indonesia Fund will be the same as the tax basis of such
assets in the hands of the Jakarta Fund immediately prior to the
consummation of the Merger; (vi) immediately after the Merger,
the tax basis of the Indonesia Fund Common Stock received by
the shareholders of the Jakarta Fund in the Merger will be equal,
in the aggregate, to the tax basis of the shares of the Jakarta
Fund converted pursuant to the Merger less the portion of such
tax basis allocable to cash received in lieu of fractional shares
of the Indonesia Fund in the Merger; (vii) a shareholder's holding
period for the Indonesia Fund Common Stock will be determined by
including the period for which he or she held the Common Stock of
the Jakarta Fund converted pursuant to the Merger, provided that
such Jakarta Fund shares were held as a capital asset; (viii) the
Indonesia Fund's holding period with respect to the Jakarta Fund
assets transferred will include the period for which such assets
were held by the Jakarta Fund; and (ix) the payment of cash to a
Jakarta Fund shareholder in lieu of fractional shares of the
Indonesia Fund will be treated as though the fractional shares
were distributed as part of the Merger and then redeemed by the
Indonesia Fund with the result that the Jakarta 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 Jakarta Fund shares were held
as capital assets immediately prior to the conversion and that the
shareholder's proportionate interest in the Indonesia Fund will be
reduced as a result of such cash distribution.
7.5. Auditor's Consent and Certification.
(a) The Indonesia Fund shall have received from
PricewaterhouseCoopers LLP a letter dated within five days prior
to 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 Indonesia Fund, to the
effect that (i) they are independent public auditors with respect to
the Indonesia 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 Indonesia 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.
(b) The Indonesia Fund shall have received from
PricewaterhouseCoopers LLP a letter dated within five days prior
to 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 Indonesia Fund, to the
effect that they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data, financial information and financial statements
appearing in the N-14 Registration Statement, which previously have
been specified by such accountants and which shall be specified in
such letter, and have compared certain of such items with, and have
found such items to be in agreement with, the accounting and
financial records of the Indonesia Fund.
7.6. Liabilities. The assets or liabilities of the Jakarta Fund as
of the Effective Date shall not include any assets or liabilities
which the Indonesia Fund, by reason of limitations in its investment
objectives and policies as in effect upon consummation of the Merger
or Articles of Incorporation, may not properly acquire or assume.
The Indonesia Fund does not anticipate that there will be any such
assets or liabilities but the Indonesia Fund will notify the Jakarta
Fund if any do exist and shall reimburse the Jakarta Fund for any
reasonable transaction costs incurred by the Jakarta 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 Indonesia Fund, contemplated
by the SEC.
7.8. Regulatory Filings. The Indonesia Fund shall have received from
the SEC such orders or interpretations as Xxxxxxx Xxxx & Xxxxxxxxx, as
counsel to the Indonesia Fund, deems reasonably necessary or
desirable under the 1933 Act, the 1934 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.
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; and no other legal, administrative or other
proceeding shall be instituted or threatened which would materially
affect the financial condition of the Jakarta Fund or would prohibit
the Merger.
7.10. Dividends. Prior to the Effective Date, the Jakarta 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.
7.11. Custodian's Certificate. The Jakarta Fund's custodian shall
have delivered to the Indonesia Fund a certificate identifying all
of the assets of the Jakarta Fund held or maintained by such
custodian as of the Valuation Time.
7.12. Books and Records. The Jakarta Fund's transfer agent shall
have provided to the Indonesia Fund (i) the originals or true copies
of all of the records of the Jakarta Fund in the possession of such
transfer agent as of the Effective Date, (ii) a certificate setting
forth the number of shares of the Jakarta 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 JAKARTA GROWTH FUND,
INC.
The obligations of the Jakarta 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 Jakarta Fund issued and outstanding and entitled
to vote thereon and the affirmative vote of the holders of at least
66 2/3% of the shares of Common Stock of the Indonesia Fund issued
and outstanding and entitled to vote thereon; and that the Indonesia
Fund shall have delivered to the Jakarta 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 Indonesia Fund, Inc.
(a) The Indonesia 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 December 31, 1999,
other than changes in its portfolio securities since that date or
changes in the market value of its portfolio securities.
(b) The Indonesia Fund shall have furnished to the Jakarta 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 the Indonesia Fund 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 date.
(c) The Indonesia Fund shall have delivered to the Jakarta 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 Indonesia Fund for the period covered
thereby; and that for the period from January 1, 2000 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 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 January 1, 2000 to and including the Effective Date or that the
Indonesia 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 Jakarta Fund shall have received an opinion of Xxxxxxx
Xxxx & Xxxxxxxxx, as counsel to the Indonesia Fund, in form and
substance reasonably satisfactory to the Jakarta Fund and dated
the Effective Date, to the effect that (i) the Indonesia Fund is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland; (ii) the Agreement has been
duly authorized, executed and delivered by the Indonesia 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 Indonesia Fund, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, 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 Indonesia Fund of the Merger,
except such as may be required under the 1933 Act, the 1934 Act, the
1940 Act and the published rules and regulations of the SEC
thereunder and such as may be required under state securities or
blue sky laws and except for the acceptance by the Department of
the Articles of Merger for filing; (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 Indonesia 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 Indonesia 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 Bylaws, as amended, or any agreement
(known to such counsel) to which the Indonesia Fund is a party or by
which the Indonesia 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 Indonesia Fund; and (viii) all corporate actions required
to be taken by the Indonesia Fund to authorize this Agreement and
to effect the Merger have been duly authorized by all necessary
corporate actions on behalf of the Indonesia Fund. In giving the
opinion set forth above, Xxxxxxx Xxxx & Xxxxxxxxx may state that it
is relying on certificates of officers of the Indonesia Fund with
regard to matters of fact and certain certificates and written
statements of governmental officials with respect to the good
standing of the Indonesia Fund and on the opinion of Xxxxxxx, Baetjer
and Xxxxxx, LLP as to matters of Maryland law.
Such counsel 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 Indonesia 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 Indonesia 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 Indonesia 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 Indonesia Fund contained or incorporated by reference in the N-14
Registration Statement.
(b) The Jakarta Fund shall have received an opinion from Xxxxx &
Wood LLP, as counsel to the Jakarta 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 Jakarta
Fund and the Indonesia 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 Jakarta Fund as a
result of the Merger or upon the conversion of Jakarta Fund shares
to Indonesia Fund Common Stock; (iii) no gain or loss will be
recognized by the Indonesia Fund as a result of the Merger; (iv)
no gain or loss will be recognized to the shareholders of the Jakarta
Fund upon the conversion of their shares into Indonesia Fund Common
Stock except to the extent such shareholders are paid cash in lieu
of fractional shares of Indonesia Fund in the Merger; (v) the tax
basis of the Jakarta Fund assets in the hands of the Indonesia Fund
will be the same as the tax basis of such assets in the hands of the
Jakarta Fund immediately prior to the consummation of the Merger;
(vi) immediately after the Merger, the tax basis of the Indonesia
Fund Common Stock received by the shareholders of the Jakarta Fund
in the Merger will be equal, in the aggregate, to the tax basis of
the shares of the Jakarta Fund converted pursuant to the Merger less
the portion of such tax basis allocable to cash received in lieu of
fractional shares of the Indonesia Fund in the Merger; (vii) a
shareholder's holding period for the Indonesia Fund Common Stock
will be determined by including the period for which he or she held
the Common Stock of the Jakarta Fund converted pursuant to the
Merger, provided that such Jakarta Fund shares were held as a capital
asset; (viii) the Indonesia Fund's holding period with respect to
the Jakarta Fund assets transferred will include the period for
which such assets were held by the Jakarta Fund; and (ix) the payment
of cash to a Jakarta Fund shareholder in lieu of fractional shares
of the Indonesia Fund will be treated as though the fractional shares
were distributed as part of the Merger and then redeemed by the
Indonesia Fund with the result that the Jakarta 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 Jakarta Fund shares were held
as capital assets immediately prior to the conversion and that the
shareholder's proportionate interest in the Indonesia Fund will be
reduced as a result of such cash distribution.
8.5. Auditor's Consent and Certification.
(a) The Jakarta Fund shall have received from PricewaterhouseCoopers
LLP a letter dated within five days prior to 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 Jakarta Fund, to the effect that (i) they are independent
public auditors with respect to the Jakarta 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 Jakarta 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.
(b) The Jakarta Fund shall have received from PricewaterhouseCoopers
LLP a letter dated within five days prior to 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 Jakarta Fund, to the effect that they have
performed other specified procedures, not constituting an audit,
with respect to certain amounts, percentages, numerical data,
financial information and financial statements appearing in the
N-14 Registration Statement, which previously have been specified
by such accountants and which shall be specified in such letter,
and have compared certain of such items with, and have found such
items to be in agreement with, the accounting and financial records of
the Jakarta Fund.
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 Jakarta Fund, contemplated by
the SEC.
8.7. Regulatory Filings.
(a) The Jakarta Fund shall have received from the SEC such orders or
interpretations as Xxxxx & Xxxx LLP, as counsel to the Jakarta Fund,
deems reasonably necessary or desirable under the 1933 Act, the 1934
Act and the 1940 Act in connection with the Merger, provided that
such counsel or counsel to the Jakarta Fund shall have requested
such orders as promptly as practicable, and all such orders shall be
in full force and effect.
(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; and no other legal,
administrative or other proceeding shall be instituted or threatened
which would materially affect the financial condition of the Jakarta
Fund or would prohibit the Merger.
(c) The Indonesia 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 Jakarta Growth Fund, Inc. All proceedings
taken by the Indonesia Fund and its counsel in connection with the
Merger and all documents incidental thereto shall be satisfactory
in form and substance to the Jakarta Fund.
8.9. Dividends. Prior to the Effective Date, the Indonesia 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. Each Fund will bear its own legal, accounting and
mailing expenses relating to the Merger and one-half of all other
Merger-related expenses (including, but not limited to, all costs
related to the preparation and distribution of the N-14 Registration
Statement, proxy solicitation expenses, SEC registration fees, and
NYSE listing fees), except that if the Merger is consummated the
Indonesia Fund shall bear the first $200,000 of expenses otherwise
to be borne by the Jakarta Fund under this formula. If the Merger
is not consummated for any reason other than a material breach by
the Jakarta Fund of its obligations under this Agreement, the
Indonesia Fund will bear all of the Jakarta Fund's ordinary
Merger-related expenses, including its legal, accounting and
mailing expenses as set forth above, but excluding any
extraordinary expenses such as litigation expenses. Counsel to the
Indonesia Fund has taken the lead role in drafting the N-14
Registration Statement and this Agreement, and the Indonesia
Fund will bear the fees and expenses of such counsel. To give
effect to the cost allocation set forth in this Section 9.1, the net
asset value of the Jakarta Fund as of the Effective Date shall exclude
the expenses of up to $200,000 and the liabilities of the Indonesia
Fund as of the Effective Date will reflect up to $200,000 of costs to
be assumed pursuant to this Section 9.1.
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 Jakarta Fund acknowledges
and agrees that from and after the Effective Date, the Indonesia Fund
shall be entitled to possession of all documents, books, records,
agreements and financial data of any sort pertaining to the Jakarta
Fund.
11. INDEMNIFICATION
11.1. Jakarta Growth Fund, Inc. The Indonesia Fund agrees to
indemnify and hold harmless the Jakarta Fund and each of the Jakarta
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 Jakarta
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
Indonesia Fund of any of its representations, warranties, covenants
or agreements set forth in this Agreement.
11.2. The Indonesia Fund, Inc. The Jakarta Fund agrees to indemnify
and hold harmless the Indonesia Fund and each of the Indonesia 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 Indonesia 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
Jakarta 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 Indonesia Fund if
any of the obligations of the Jakarta Fund set forth in this
Agreement has not been fulfilled or waived by such Board or if
the Jakarta Fund has made a material and intentional
misrepresentation herein or in connection herewith; or (iii) by the
Board of Directors of the Jakarta Fund if any of the obligations of
the Indonesia Fund set forth in this Agreement has not been fulfilled
or waived by such Board or if the Indonesia 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 February 28, 2001, 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 Jakarta Fund or the Indonesia Fund
(whichever is entitled to the benefit thereof), if, in the judgmen
t 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 the 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 Indonesia 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 Indonesia 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 INDONESIA 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
Indonesia Fund's transfer agent with respect to such shares. The
Jakarta Fund will provide the Indonesia Fund on the Effective Date
with the name of any Jakarta Fund Shareholder who is to the
knowledge of the Jakarta 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 Indonesia Fund:
Xxx Xxxxxx, Esq.
Senior Vice President
The Indonesia Fund, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With copies to:
Xxxxxx Xxxxxxxxxxx, Esq.
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
If to the Jakarta Fund:
Xxxxx Xxxxxxxx
President
Jakarta Growth Fund, Inc.
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
With copies to:
Xxxx X. XxxXxxxxx, Esq.
Xxxxx & Xxxx LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx X. XxxXxxx, Esq.
Debevoise & Xxxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
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 Indonesia Fund and the Jakarta Fund;
provided, however, that following the meeting of the Indonesia Fund
and Jakarta Fund shareholders to approve the Merger, no such amendment
may have the effect of changing the provisions for determining the
number of the Indonesia Fund shares to be issued to the Jakarta 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,
except for Section 6.9 hereof, which shall be for the benefit of, and
enforceable by, the Indemnitees.
13.9. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of
New York, 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 INDONESIA FUND, INC.
By: /s/ Hal Liebes___________________________
Name: Xxx Xxxxxx
Attest: /s/ Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President; Secretary
JAKARTA GROWTH FUND, INC.
By: /s/ Nobuo Katayama______________________
Name: Xxxxx Xxxxxxxx, President
Attest: /s/ Xxxx X. Xxxxxxx
Title: Secretary
797884.10
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