EXHIBIT (4.2)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement") is
made as of this ____ day of ______, 2000, by and between Dresdner RCM Investment
Funds Inc., a Maryland corporation (the "Investment Company") on behalf of its
Dresdner RCM Europe Fund series ("Europe Fund"), and Dresdner RCM Global Funds,
Inc., a Maryland corporation (the "Global Company") on behalf of its Dresdner
RCM Europe Fund series ("New Europe Fund").
WHEREAS, the parties wish to enter into a plan of reorganization
(the "Plan") which will consist, among other things, of the transfer of assets
of Europe Fund to New Europe Fund in exchange for shares of common stock of New
Europe Fund ("New Europe Fund Shares");
WHEREAS, the Board of Directors of the Investment Company,
including a majority of the Directors who are not "interested persons" of the
Investment Company, as defined in the Investment Company Act of 1940, as amended
(the "1940 Act"), has determined that the Plan is in the best interests of the
shareholders of Europe Fund, and that their interests would not be diluted as a
result of the transactions contemplated thereby; and
WHEREAS, the Board of Directors of the Global Company, including a
majority of the Directors who are not "interested persons" of the Global
Company, as defined in the 1940 Act, has determined that the Plan is in the best
interests of the sole shareholder of New Europe Fund, which is a newly created
series of the Global Company formed for the specific purpose of entering into
the Plan, and that the interests of the sole shareholder of New Europe Fund
would not be diluted as a result of the transactions contemplated thereby.
NOW THEREFORE, in consideration of the agreements contained in this
Agreement, the parties agree as follows:
Article 1
Transfer of Assets and Liabilities
1.1 TRANSFER OF ASSETS AND LIABILITIES. Subject to the terms and
conditions set forth herein, on the Closing Date (as hereafter defined), Europe
Fund shall transfer all of its assets to New Europe Fund. In exchange therefor,
New Europe Fund shall assume all of the liabilities of Europe Fund and deliver
to Europe Fund a number of New Europe Fund Shares which is equal to (i) the
aggregate net asset value of Europe Fund at the close of business on the date
preceding the Closing Date, divided by (ii) the net asset value per share of New
Europe Fund outstanding as of the close of business on such day.
1.2 LIQUIDATION OF EUROPE FUND. Subject to the terms and conditions set
forth herein, on the Closing Date Europe Fund shall liquidate and shall
distribute pro rata to its shareholders of record, determined as of the close of
business on the day preceding the Closing Date, the New Europe Fund Shares
received by it pursuant to Section 1.1.
1.3 NO ISSUANCE OF SHARE CERTIFICATES. The liquidation and distribution
of Europe Fund provided for herein shall be accomplished by opening accounts on
the books of New Europe Fund in the names of its shareholders and transferring
to its shareholders New Europe Fund
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Shares credited to the account of Europe Fund on the books of New Europe
Fund. No certificates evidencing New Europe Fund Shares shall be issued.
1.4 TIME AND DATE OF COMPUTATION. The number of Shares to be issued by
New Europe Fund to Europe Fund shall be computed as of 4:30 p.m. (Eastern time)
on the date preceding the Closing Date in accordance with the regular practices
of Europe Fund and the Investment Company.
1.5 CLOSING TIME AND PLACE. The Closing Date shall be ___________,
2000, or such later date on which all of the conditions set forth in Article 2
have been fulfilled or otherwise waived by the parties hereto, but in any event
not later than _____________, 2000, or such later date as the parties may
mutually agree. All acts taking place on the Closing Date shall be deemed to be
taking place simultaneously as of the commencement of business on the Closing
Date, unless otherwise provided. The closing of the reorganization contemplated
by the Plan (the "Closing") shall be held at 10:00 a.m. (Pacific time) at the
offices of the Global Company, Four Embarcadero Center, San Francisco,
California, or such other time and/or place as the parties may mutually agree.
1.6 DELAY OF VALUATION. If on the day preceding the Closing Date (a)
the primary trading market for portfolio securities of either party is closed to
trading or trading thereon is restricted, or (b) trading or the reporting of
trading is disrupted so that an accurate appraisal of the value of the net
assets of either party and an accurate calculation of the number of shares held
by each shareholder is impracticable, the Closing Date shall be postponed until
the first business day after the day when trading shall have been fully resumed
and reporting shall have been restored.
1.7 TERMINATION OF EUROPE FUND AND INVESTMENT COMPANY. As promptly as
practicable after the Closing, each of Europe Fund and the Investment Company
shall dissolve.
ARTICLE 2
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE REORGANIZATION
The respective obligation of each party to effect the
reorganization contemplated by this Agreement is subject to the satisfaction or
waiver on or prior to the Closing Date of the following conditions:
2.1 SHAREHOLDER APPROVAL. On or prior to the Closing Date, the
shareholders of Europe Fund shall have approved the transactions contemplated by
this Agreement in accordance with the provisions of Maryland law and the 1940
Act.
2.2 NO INJUNCTIONS OR RESTRAINTS. On the Closing Date, no action, suit
or other proceeding shall be pending before any court or government agency which
seeks to restrain or prohibit or obtain damages or other relief in connection
with this Agreement or the transactions contemplated hereby.
2.3 CONSENTS. All consents of the other party and all other consents,
orders and permits of Federal, state and local regulatory authorities deemed
necessary by the Investment Company to permit consummation, in all material
respects, of the transactions contemplated herein shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of
either Europe Fund or the Investment Company.
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2.4 EFFECTIVE REGISTRATION STATEMENT. The Form N-1A Registration
Statement of the Global Company and the Form N-14 Registration Statement of the
Global Company with respect to the New Europe Fund Shares shall have become
effective and continue to be effective and no stop orders suspending the
effectiveness thereof shall have been issued and, to the best knowledge of the
parties hereto, no investigation or proceeding for that purpose shall have been
instituted or be pending, threatened or contemplated.
2.5 TAX OPINION. The parties shall have received an opinion of Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP substantially to the effect that for Federal
income tax purposes:
(a) The transfer of Europe Fund assets to New Europe Fund, in
exchange for New Europe Fund Shares, and the distribution of
New Europe Fund Shares to the shareholders of Europe Fund in
liquidation of Europe Fund will constitute a "reorganization"
(the "Reorganization") within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended;
(b) No gain or loss will be recognized by New Europe Fund upon the
receipt of the assets of Europe Fund solely in exchange for
New Europe Fund Shares;
(c) No gain or loss will be recognized by Europe Fund upon the
transfer of its assets to New Europe Fund in exchange for New
Europe Fund Shares;
(d) No gain or loss will be recognized by any shareholder of
Europe Fund upon exchange of its Europe Fund shares for New
Europe Fund Shares;
(e) The tax basis of the assets of Europe Fund acquired by New
Europe Fund will be the same as the tax basis of such assets
to Europe Fund immediately prior to the reorganization;
(f) The tax basis of New Europe Fund Shares received by each
shareholder of Europe Fund pursuant to the reorganization will
be the same as the tax basis of Europe Fund shares held by
such shareholder immediately prior to the reorganization;
(g) The holding period of the assets of Europe Fund acquired by
New Europe Fund will include the period during which those
assets were held by Europe Fund; and
(h) The holding period of the New Europe Fund Shares to be
received by each shareholder of Europe Fund will include the
period during which the Europe Fund shares exchanged therefor
were held by such shareholder.
2.6 COVENANTS, REPRESENTATIONS AND WARRANTIES. Each party shall have
performed all of its covenants set forth in Article 4, and its representations
and warranties set forth in Article 3 shall be true and correct in all material
respects on and as of the Closing Date as if made on such date, and each of the
President of the Global Company and the President of the Investment Company
shall have executed a certificate to such effect.
2.7 STATEMENT OF ASSETS AND LIABILITIES. Europe Fund shall have
delivered to the Global Company on the Closing Date a statement of its assets
and liabilities, prepared in accordance with generally accepted accounting
principles consistently applied, together with a
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certificate of its Treasurer or Assistant Treasurer as to its portfolio
securities and the federal income tax basis and holding period as of the
Closing Date.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The parties represent and warrant as follows:
3.1 STRUCTURE AND STANDING. Each party represents and warrants that it
is duly organized as a Maryland corporation, is validly existing and in good
standing under the laws of the State of Maryland, and has the power to own all
of its properties and assets and conduct its business.
3.2 POWER. Each party represents and warrants that it has full power
and authority to enter into and perform its obligations under this Agreement;
the execution, delivery and performance of this Agreement has been duly
authorized by all necessary action of its Board of Directors; this Agreement
does not violate, and its performance will not result in violation of, any
provision of its Articles of Incorporation, Bylaws, or any agreement, instrument
or other undertaking to which it is a party or by which it is bound; and this
Agreement constitutes its valid and binding contract enforceable in accordance
with its terms, subject to the effects of bankruptcy, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto.
3.3 LITIGATION. Each party represents and warrants that no litigation
or administrative proceeding or investigation of or before any court or
governmental body is currently pending against it and, to the best of its
knowledge, none is threatened against it or any of its properties or assets,
which, if adversely determined, would materially and adversely affect its
financial condition or the conduct of its business; it knows of no facts which
might form the basis for the institution of such proceedings; and it 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.
3.4 FUND ASSETS. Europe Fund represents and warrants that on the
Closing Date the assets received by New Europe Fund from Europe Fund will be
delivered to New Europe Fund as provided in Section 1.1 free and clear of all
liens, pledges, security interests, charges or other encumbrances of any nature
whatsoever created by Europe Fund and without any restriction upon the transfer
thereof, except for such liabilities assumed as provided in Section 1.1.
3.5 THE SHARES. New Europe Fund represents and warrants that on the
Closing Date (a) the New Europe Fund Shares to be delivered to Europe Fund as
contemplated in this Agreement will be duly authorized, validly issued, fully
paid and nonassessable; (b) no shareholder of New Europe Fund or any other
series of the Global Company has any preemptive right to subscription or
purchase in respect thereof; (c) Europe Fund will acquire the New Europe Fund
Shares free and clear of all liens, pledges, security interests, charges or
other encumbrances of any nature whatsoever created by the Global Company and
without any restriction on the transfer thereof; and (d) the New Europe Fund
Shares will be duly qualified for offering to the public in all of the states of
the United States in which such qualification is required or an exemption from
such requirement shall have been obtained.
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3.6 TAX STATUS AND FILINGS. Each party represents and warrants that it
has satisfied the requirements of Subchapter M of the Code for treatment as a
regulated investment company and has elected (or, in the case of New Europe
Fund, will elect) to be treated as such; it has filed or furnished all federal,
state, and other tax returns and reports required by law to have been filed or
furnished, and it has paid or made provision for payment of, so far as due, all
federal, state and other taxes, interest and penalties; that no such return is
currently being audited; and that no assessment has been asserted with respect
to any such returns or reports.
3.7 ACCURACY OF INFORMATION. Each party represents and warrants that
all information furnished by it to the other party for use in any documents
which may be necessary in connection with the transactions contemplated by this
Agreement will be accurate and complete and will comply in all material respects
with federal securities and other laws and regulations applicable thereto.
3.8 ACQUISITION OF THE SHARES. Europe Fund represents and warrants that
the New Europe Fund Shares it acquires pursuant to this Agreement are not being
acquired for the purpose of making any distribution thereof, except in
accordance with the terms of this Agreement.
3.9 THE GLOBAL COMPANY. The Global Company represents and warrants that
as of the Closing Date the New Europe Fund will have only nominal assets and
outstanding shares, solely for the purpose of voting on matters related to the
reorganization contemplated by the Plan.
3.10 INVESTMENT COMPANY FINANCIAL STATEMENTS. Europe Fund represents
and warrants that its Statement of Assets and Liabilities of ______, 2000
provided to the Global Company has been prepared in accordance with generally
accepted accounting principles consistently applied, and fairly reflects its
financial condition as of such date, and there are no known contingent
liabilities of such party as of such date not disclosed therein.
3.11 NO ADVERSE CHANGES IN INVESTMENT COMPANY. Europe Fund represents
and warrants that since ______, 2000, there has not been any material adverse
change in its financial condition, assets, liabilities or business other than
changes occurring in the ordinary course of business except as otherwise
disclosed in writing to and accepted by the Global Company (for the purposes of
this paragraph, a decline in net asset value per share of a party shall not
constitute a material adverse change).
3.12 PROXY STATEMENT. Each party represents and warrants that the
Combined Proxy Statement and Prospectus contained in the Registration Statement
on Form N-14 to be used in connection with the transaction contemplated hereby
(only insofar as it relates to such party) will, on its effective date and on
the Closing Date, not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
were made, not materially misleading.
ARTICLE 4
COVENANTS
4.1 CONDUCT OF BUSINESS. During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Closing Date, each party shall operate its business in the ordinary
course except as contemplated by this Agreement.
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4.2 SHAREHOLDERS MEETING. Europe Fund shall call a special meeting of
its shareholders as soon as possible for the purpose of considering the
reorganization contemplated by this Agreement.
4.3 PREPARATION OF COMBINED PROSPECTUS AND PROXY STATEMENT. As soon as
reasonably practicable after the execution of this Agreement, the Global Company
shall prepare and file with the United States Securities and Exchange Commission
in form and substance satisfactory to both parties, (a) an amendment to the Form
N-1A registration statement of the Global Company with respect to New Europe
Fund, and (b) a combined prospectus and proxy statement on Form N-14 with
respect to the reorganization and shall use its best efforts to provide that the
combined prospectus and proxy statement can be distributed to the shareholders
of Europe Fund as promptly thereafter as practicable. As soon as reasonably
practicable, the parties shall also prepare and file any other related filings
required under applicable state securities laws.
4.4 FEES AND EXPENSES. Whether or not this Agreement is consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by Dresdner RCM Global
Investors, LLC.
4.5 PROVISION OF DOCUMENTS. Each party agrees that it will, from time
to time as and when reasonably requested by the other party, execute and file
Articles of Transfer with respect to the transactions contemplated in this
Agreement with the Maryland State Department of Assessments and Taxation,
provide or cause to be provided to the other party such information, execute and
deliver or cause to be executed and delivered to the other party such documents,
and take or cause to be taken such further action, as the other party may deem
necessary in order to carry out the intent of this Agreement.
4.6 INVESTMENT COMPANY LIABILITIES. The Investment Company will use its
best efforts to discharge all of its financial liabilities and obligations prior
to the Closing Date.
ARTICLE 5
TERMINATION, AMENDMENT AND WAIVER
5.1 TERMINATION. This Agreement may be terminated by resolution of the
Board of Directors of the Investment Company or the Board of Directors of the
Global Company at any time prior to the Closing Date, if
(a) either party shall have breached any material provision of
this Agreement; or
(b) circumstances develop that, in the opinion of such Board, make
proceeding with the Plan inadvisable; or
(c) any governmental body shall have issued an order, decree or
ruling having the effect of permanently enjoining, restraining
or otherwise prohibiting the consummation of this Agreement.
5.2 EFFECT OF TERMINATION. In the event of any termination pursuant to
Section 5.1 (b) or (c), there shall be no liability for damage on the part of
either party to the other party.
5.3 AMENDMENT. This Agreement contains the entire agreement of the
parties with respect to the reorganization contemplated by the Plan and may be
amended prior to the Closing
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Date by the parties in writing at any time; provided, however, that there
shall not be any amendment that by law requires approval by the shareholders
of a party without obtaining such approval.
5.4 WAIVER. At any time prior to the Closing Date, any of the terms or
conditions of this Agreement may be waived by the Board of Directors of the
Investment Company or the Board of Directors of the Global Company, if, in its
judgment after consultation with legal counsel, such action or waiver will not
have a material adverse effect on the benefits intended under this Agreement to
the shareholders of Europe Fund or of New Europe Fund.
ARTICLE 6
GENERAL PROVISIONS
6.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Maryland applicable to contracts made
and to be performed in such state..
6.2 ASSIGNMENT. This Agreement shall be binding upon 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 either 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 other than the parties hereto and their respective successors
and assigns any rights or remedies under or by reason of this Agreement.
6.3 NOTICES. Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be in writing and shall be
given by prepaid telegraph, telecopy or certified mail addressed to the
Investment Company at Xxxx Xxxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: President, or the Global Company at Xxxx Xxxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: President.
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IN WITNESS WHEREOF, each party has caused this Agreement to be
executed and attested on its behalf by its duly authorized representatives as of
the date first above written.
DRESDNER RCM INVESTMENT FUNDS INC., on
behalf of its Dresdner BRCM Europe Fund
series
Attest: By:
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Xxxxxx Xxxx
President
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Secretary
DRESDNER RCM GLOBAL FUNDS, INC., on
behalf of its Dresdner RCM Europe Fund
series
Attest: By:
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Xxxxxxx Ain
President
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Secretary
For good and valuable consideration, receipt of which is
hereby acknowledged, the undersigned hereby agrees to the provisions of Section
4.4 of this Agreement.
DRESDNER RCM GLOBAL INVESTORS LLC
By:
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