As filed with the Securities and Exchange Commission on October 22, 2001.
File No. ___________
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form N-14
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [X]
Pre-Effective Amendment No. _____ [ ]
Post-Effective Amendment No. _____ [ ]
INVESTEC FUNDS
(Formerly Guinness Flight Investment Funds)
(Exact name of Registrant as Specified in Trust Instrument)
1055 Washington Blvd., 3rd Floor
Stamford, Connecticut 06901
___________________________________________________
(Address of Principal Executive Office) (Zip Code)
(800) 362-5365
(Area Code and Telephone Number)
Susan Penry-Williams, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
____________________________________
(Name and Address of Agent for Service)
Copy to
Mr. Royce N. Brennen
Investec Funds
1055 Washington Blvd., 3rd Floor
Stamford, Connecticut 06901
Approximate Date of Proposed Public Offering: As soon as practicable after this
Registration Statement becomes effective.
Title of Securities Being Registered: Shares of Beneficial Interest.
No Filing Fee is due because of reliance on Section 24(f) of the Investment
Company Act of 1940, as amended.
Registrant proposes that the filing become effective on November 21, 2001,
pursuant to Rule 488 under the Securities Act of 1933, as amended.
Investec Funds
1055 Washington Blvd., 3rd Floor
Stamford, Connecticut 06901
Dear Shareholder,
Enclosed is a Proxy Statement seeking your approval of a proposed merger
of Investec Asia New Economy ("Asia New Economy Fund") into Investec Asia Small
Cap Fund ("Asia Small Cap Fund"). Investec Asset Management U.S. Limited
("Investec") is the investment adviser for the Investec Funds and will remain
the investment adviser of the Asia Small Cap Fund after the merger.
We are recommending the merger of the two funds because the investment
objectives of the Asia New Economy Fund and the Asia Small Cap Fund are similar
and the two funds employ similar investment policies to achieve their investment
objectives. Additionally, as discussed in the accompanying document, Asia New
Economy Fund's asset base is decreasing and Asia Small Cap Fund's ratio of
expenses to net assets is lower than that of the Asia New Economy Fund. The
combined assets of the two Funds should provide a more stable asset base for
management because daily purchases and redemptions of shares should have a less
significant impact on the size of the combined Funds. The accompanying document
describes the proposed transaction and compares the investment policies,
operating expenses and performance history of the Asia Small Cap Fund and the
Asia New Economy Fund. You should review the accompanying materials carefully.
Remember, your vote is important. Please take a moment after reviewing the
enclosed materials to sign and return your proxy card in the enclosed postage
paid return envelope. If we do not hear from you after a reasonable amount of
time, you may receive a telephone call from our proxy solicitor reminding you to
vote your shares.
Sincerely,
Royce N. Brennan
President
PRELIMINARY PROXY MATERIALS FOR THE INFORMATION
OF THE SECURITIES AND EXCHANGE COMMISSION
INVESTEC FUNDS
Investec Asia New Economy Fund
800-915-6565
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
The Investec Funds (the "Trust") will host a special meeting of
shareholders of the Investec Asia New Economy Fund (the "Fund") on December 17,
2001, at______ a.m. Eastern Time (the "Meeting"). The Meeting will be held at
the Fund's offices, located at 1055 Washington Blvd., 3rd Floor, Stamford,
Connecticut. At the Meeting, shareholders will be asked to consider and act upon
the following proposal:
To reorganize the Fund into the Investec Asia Small Cap Fund; and
To transact such other business as may properly come before the
Meeting or any adjournments thereof.
___________, 2001
By Order of the Board of Trustees,
Eric M. Banhazl
Secretary
PRELIMINARY PROXY MATERIALS FOR THE INFORMATION
OF THE SECURITIES AND EXCHANGE COMMISSION
------------------------------------------------------------------------------
YOUR VOTE IS IMPORTANT!
YOU CAN VOTE EASILY AND QUICKLY BY MAIL, BY PHONE (Toll-Free), OR BY FAX.
JUST FOLLOW THE SIMPLE INSTRUCTIONS THAT APPEAR ON YOUR ENCLOSED PROXY CARD.
------------------------------------------------------------------------------
INVESTEC FUNDS
Investec Asia New Economy Fund
SPECIAL MEETING OF SHAREHOLDERS
December 17, 2001
____________________________________________________________
INVESTEC FUNDS
1055 Washington Blvd., 3rd Floor
Stamford, Connecticut 06901
COMBINED PROXY STATEMENT AND PROSPECTUS
DATED __________, 2001
INTRODUCTION
------------
This Combined Proxy Statement and Prospectus is being provided for a
special meeting of shareholders of the Investec Asia New Economy Fund (the
"Fund") to be held on December 17, 2001 (the "Meeting"). We have divided the
Combined Proxy Statement and Prospectus into five parts:
Part 1 -- An Overview
Part 2 -- Proposal to Reorganize the Fund
Part 3 -- More on Proxy Voting and Meeting of Shareholders
Part 4 -- Trust Information
Part 5 -- Form of Agreement and Plan of Reorganization and Liquidation
Please read the entire Proxy Statement before voting. If you have any
questions, please feel free to call us at 800-915-6565.
This Combined Proxy Statement and Prospectus was first mailed to
shareholders the week of _____________, 2001. It contains information about
certain of the Investec Funds that you should know. Please keep it for future
reference. A Statement of Additional Information
dated April 26, 2001 is incorporated by reference and can be obtained free of
charge by calling us at 800-915-6565.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC") NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR
DETERMINED THAT THIS COMBINED PROXY STATEMENT AND PROSPECTUS IS ACCURATE OR
COMPLETE. ANYONE WHO TELLS YOU OTHERWISE IS COMMITTING A CRIME.
Investec Funds is required by federal law to file reports, proxy
statements and other information with the SEC. The SEC maintains a website that
contains information about the Investec Funds. Any such reports, proxy material
and other information can be inspected and copied at the public reference
facilities of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of
such materials can be obtained from the Public Reference Branch, Office of
Consumer Affairs and Information Services of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549, or by electronic request at the following e-mail
address: publicinfo@sec.gov, at prescribed rates. You may call the SEC at (202)
942-8090 for information on the operation of the Public Reference Room.
PART 1 - AN OVERVIEW........................................................1
PART 2 - PROPOSAL TO REORGANIZATION THE FUND................................1
Introduction...........................................................1
How the Reorganization Works...........................................1
How the Fees of the Investec Asia New Economy Fund Compare
to the Fees of the Investec Asia Small Cap Fund..................2
Information about the Reorganization...................................4
Why We Want to Reorganize the Investec Asia New Economy Fund...........6
Considerations by the Board of Trustees................................6
How your Fund compares to the Investec Asia Small Cap Fund.............7
Comparison of Investment Objectives..............................7
Comparison of Principal Investment Risks.........................9
Comparison of Potential Risks and Rewards/Performance...........10
Comparison of Operations........................................11
Investment Advisory Agreement.........................................11
Administration Agreement, Distribution Agreement and
Distribution Plans..............................................11
Transfer Agent and Custodian..........................................12
Dividends and Other Distributions.....................................12
Purchase, Redemption and Exchange Procedures..........................12
Exchange and Redemption Rights........................................12
Trustees..............................................................13
Comparison of Shareholder Rights......................................13
Capitalization of the Funds...........................................13
Required Vote.........................................................13
Board Recommendation..................................................13
PART 3 - MORE ON PROXY VOTING AND MEETING OF SHAREHOLDERS..................13
PART 4 - FUND INFORMATION..................................................15
PART 5 - FORM OF AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION......16
PART 1 - AN OVERVIEW
The Board of Trustees of the Investec Funds (the "Trust") has sent you
this Combined Proxy Statement and Prospectus to ask for your vote on a proposal
to reorganize your Fund into the Investec Asia Small Cap Fund. Your Fund has
scheduled a shareholder meeting for December 17, 2001 to consider the proposal.
PART 2 - PROPOSAL TO REORGANIZE THE FUND
Introduction
The Board of Trustees of the Trust, on behalf of your Fund and the
Investec Asia Small Cap Fund, both of which are series of the Trust, has
approved an Agreement and Plan of Reorganization and Liquidation under which
your Fund would be reorganized into the Investec Asia Small Cap Fund. In this
Combined Proxy Statement and Prospectus, we refer to the Agreement and Plan of
Reorganization and Liquidation as the "Plan of Reorganization," and to the
transactions described in the Plan of Reorganization as the "reorganization."
The primary purpose of the reorganization is to provide a more stable base
for management of your Fund because daily purchases and redemptions of shares
should have a less significant impact on the size of the combined fund. This may
grant a wider range of choices among permitted investments than are currently
available to your Fund whose policy is to invest at least 85% of its assets in
securities issued by new economy companies. In addition, the larger asset base
following the reorganization may help your Fund achieve economies of scale,
thereby reducing its expenses as a percentage of net assets.
To adopt the Plan of Reorganization, we need shareholder approval.
The next few pages of this Combined Proxy Statement and Prospectus discuss
some of the details of the proposed reorganization and how it will affect your
Fund and you.
How the Reorganization Works
If you approve the proposal discussed in this Combined Proxy Statement and
Prospectus, your Fund would reorganize into the Investec Asia Small Cap Fund.
The reorganization would work as follows:
o If you approve the Plan of Reorganization, your Fund would transfer
substantially all of its assets and liabilities to the Investec Asia Small
Cap Fund, in exchange for shares of the Investec Asia Small Cap Fund.
o Your Fund would distribute to you the Investec Asia Small Cap Fund shares
it receives. The dollar value of the Investec Asia Small Cap Fund shares
would be the same as the dollar value of your Fund shares.
o [The reorganization will qualify as a tax-free reorganization under the
Internal Revenue Code (the "Code").]
o You would become a shareholder of the Investec Asia Small Cap Fund. Your
Fund would then cease operations.
Your Fund and the Investec Asia Small Cap Fund have the same team of
portfolio managers. The investment objective of your Fund is long-term capital
appreciation. At present, the Asia Small Cap Fund invests primarily in equity
securities of smaller capitalization issuers (market value of less than U.S. $1
billion). To enable the Asia Small Cap Fund to place a greater emphasis on
investments in equity securities of companies of any size market value which are
traded on the Asian markets or that derive a substantial portion of their
revenue from business activities in Asia but which are traded elsewhere, the
Board of Trustees of the Trust approved and voted to recommend that shareholders
of the Asia Small Cap Fund approve a change in the Funds investment objective.
Subject to approval of the proposed change of investment objective, the Asia
Small Cap Fund's name will be changed to "Investec Asia Focus Fund". It is
anticipated that before year end, shareholders of the Asia Small Cap Fund will
receive a proxy statement requesting their vote on the proposed amendment to its
investment objective. See "How Your Fund Compares to the Investec Asia Small Cap
Fund" for summary comparisons charts showing investment objectives, investment
policies and investment strategies of the Investec Asia New Economy Fund, the
Investec Asia Small Cap Fund and, assuming shareholders of the Asia Small Cap
Fund approve an amendment to its investment objective, the Investec Asia Focus
Fund. Investec Asset Management U.S. Limited (the "Adviser") currently serves
as the investment adviser of each Fund.
How the Fees of the Investec Asia New Economy Fund Compare to the
Fees of the Investec Asia Small Cap Fund
Both your Fund and the Investec Asia Small Cap Fund, like all mutual
funds, incur certain expenses in their operations. These expenses include
management fees, as well as the costs of maintaining accounts, administration,
providing shareholder liaison and distribution services, and other activities.
The following table describes the fees and expenses you may pay if you invest in
your Fund or the Investec Asia Small Cap Fund. The table also shows the expected
expenses of the Investec Asia Small Cap Fund after the reorganization. The
Funds' annual expenses may be more or less than the amounts shown below.
Investec Investec
Asia New Asia
Economy Small Cap Combined
Fund Fund Pro Forma
Shareholder Transaction
Expenses (paid directly from
your investment)
Maximum Sales Charge Imposed None None None
on Purchases (as a percentage
of offering price)
Sales Charge Imposed on None None None
Reinvested Dividends
Deferred Sales Charge None None None
2
Investec Investec
Asia New Asia
Economy Small Cap Combined
Fund Fund Pro Forma
Redemption Fees/Exchange Fees(1) 1.00% 1.00% 1.00%
Maximum Account Fee None None None
Annual Fund Operating Expenses
(as a percentage of average
daily net assets)
Management Fees 1.00% 1.00% 1.00%
Distribution (Rule 12b-1) Fees 0.00% 0.00% 0.00%
Other Expenses 2.50% 1.67% 2.52%
Total Annual Fund Operating
Expenses(2) 3.50% 2.67% 3.52%
Expenses Reimbursed to the Fund 1.52% 0.69% 1.54%
Net Annual Fund Operating
Expenses (expenses actually
incurred by the Fund)(2) 1.98% 1.98% 1.98%
1 You will be charged a 1% fee if you redeem or exchange shares of either Fund
within 30 days of purchase. There is a $10 fee for redemptions by wire.
2 The Fund's Adviser is contractually obligated to cap each Fund's Total Annual
Fund Operating Expenses at 1.98% at least through June 30, 2002.
Example. This Example is intended to help you compare the cost of
investing in the Investec Asia New Economy Fund with the cost of investing in
the Investec Asia Small Cap Fund.
The Example assumes that you invest $10,000 in either of the Funds for the
time periods indicated and then redeem all of your shares at the end of those
periods. The Example also assumes that your investment has a 5% return each year
and that each Fund's operating expenses remain the same. Although your actual
costs may be higher or lower, based on these assumptions your costs would be:
------------------------------------------------------------------------------
1 Year 3 Years 5 Years 10 Years
------------------------------------------------------------------------------
Investec Asia New Economy Fund* $201 $933 $1,687 $3,674
------------------------------------------------------------------------------
Investec Asia Small Cap Fund* $201 $764 $1,354 $2,952
------------------------------------------------------------------------------
Combined Pro Forma* $201 $937 $1,695 $3,690
------------------------------------------------------------------------------
3
* Your costs of investing in the Fund for 1 year reflect the amount you
would pay after the Adviser reimburses the Fund for some or all of the
other expenses. Your costs of investing in the Fund for 3, 5 and 10 years
reflect the amount you would pay if the Adviser did not reimburse the Fund
for some or all of the other expenses. If the Adviser continues to cap the
Fund's expenses for 3, 5 or 10 years as the Advisor did for the first
year, your actual costs for those periods would be lower than the amounts
shown. The Advisor is currently under no obligation to cap expenses for
any period beyond June 30, 2002.
Information about the Reorganization
This section describes some information you should know about the
reorganization.
Description of transaction. The Plan of Reorganization provides that your
Fund will transfer substantially all of its assets to the Investec Asia Small
Cap Fund in exchange for shares of the Investec Asia Small Cap Fund in the same
proportion as the shares of your Fund. The Investec Asia Small Cap Fund will
also assume substantially all of your Fund's liabilities. After this
transaction, the Investec Asia New Economy Fund will give you shares of the
Investec Asia Small Cap Fund (the "Closing"). The dollar value of the shares you
receive will be equal to the dollar value of the Fund shares you owned at the
end of business on the day of the Closing. You will not pay a sales charge or
any other fee as part of this transaction. The Funds will bear certain expenses
that are normal with this type of reorganization.
Please see the Plan of Reorganization for a more detailed description of
the reorganization. You can find the Plan of Reorganization in Part 5 of this
Combined Proxy Statement and Prospectus.
[Tax Consequences of the Reorganization. The following discussion
addresses certain material United States federal income tax consequences of
the reorganization. It is based on current tax law, which may be changed by
legislative, judicial, or administrative action, sometimes with retroactive
effect. No attempt has been made to present a complete discussion of the
federal tax consequences to the Funds or their shareholders, and this
discussion does not address any state, local or foreign tax consequences.
The discussion relates to United States persons who hold shares of a Fund as
capital assets (as defined in section 1221 of the United States Internal
Revenue Code (the "Code")). Special tax considerations may apply to certain
types of investors subject to special treatment under the tax law.
Accordingly, you are urged to consult your tax adviser with specific
reference to your own tax circumstances.
As a condition to the closing of the reorganization, both your Funds must
receive an opinion of counsel, on the basis of the representations set forth or
referred to in such opinion, substantially to the effect that:
o No gain or loss will be recognized by your Fund on the transfer to
the Asia Small Cap Fund of its assets in exchange solely for shares
of the Asia Small Cap Fund and the Asia Small Cap Funds's assumption
of your Fund's liabilities or on the subsequent distribution of
shares of the Asia Small Cap Fund to you in liquidation of your
Fund;
4
o No gain or loss will be recognized by the Asia Small Cap Fund on its
receipt of your Fund's assets in exchange solely for shares of the
Asia Small Cap Fund and the Asia Small Cap Fund's assumption of your
Fund's liabilities;
o The Asia Small Cap Fund's adjusted tax basis in the assets acquired
from your Fund will be equal to the basis thereof in your Fund's
hands immediately before the reorganization, and the Asia Small Cap
Funds's holding period for the assets acquired from your Fund will
include your Fund's holding period therefor;
o You will recognize no gain or loss on the exchange of shares of your
Fund solely for shares of the Asia Small Cap Fund pursuant to the
reorganization; and
o Your aggregate tax basis in shares of the Asia Small Cap Fund
received by you in the reorganization will equal your aggregate tax
basis in the shares of your Fund surrendered in exchange therefor,
and your holding period for shares of the Asia Small Cap Fund
received in the reorganization will include your holding period for
the shares of your Fund surrendered in exchange therefor, provided
that you hold such shares as capital assets at the effective time of
the reorganization.
As of September 30, 2001, the Asia New Economy Fund had capital loss
carryforwards of $2,537,351. As a result of the reorganization, the use of your
Fund's capital loss carryforward after the reorganization may be limited to an
amount equal to the net asset value of your Fund immediately prior to the
reorganization multiplied by the long-term tax-exempt rate in effect for the
month in which the reorganization occurs (the rate for October 2001 is 4.94%).
You will be required to retain in your records and file with your federal
income tax return for the taxable year in which the reorganization takes place a
statement setting forth all relevant facts in respect of the nonrecognition of
gain or loss upon the exchange. The statement is required to include:
o your tax basis in the shares surrendered in the reorganization; and
o the fair market value of the shares of the Asia Small Cap Fund
received in the reorganization as of the effective time of the
reorganization.
Your Fund or the Asia Small Cap Fund may pay a dividend or distribute a
taxable gain prior to the reorganization. You may be liable for taxes on those
distributions.
The foregoing discussion is intended only as a summary and does not
purport to be a complete analysis or listing of all potential tax effects
relevant to a decision whether to vote in favor of the reorganization.]
Conditions of the reorganization. Before the reorganization can occur,
both your Fund and the Investec Asia Small Cap Fund must satisfy certain
conditions. For example:
o [Each Fund must receive an opinion of counsel stating, in effect, that the
reorganization will qualify as a tax-free reorganization under the Code;]
5
o Each Fund must receive an opinion of counsel certifying to certain matters
concerning the legal existence of each Fund;
o A majority of the shareholders voting at the Meeting in person or by proxy
must approve the reorganization.
Why We Want to Reorganize the Investec Asia New Economy Fund
The Adviser believes that the reorganization will benefit both of the
Funds. Among other things, the Adviser believes the reorganization will:
o Result in economies of scale. That is, the increased assets of two
combined Funds could possibly reduce expenses over time by spreading fixed
costs over a larger asset base.
o Going forward, eliminate duplicative efforts that separate funds may
require, such as accounting services, resulting in more efficient
operations of the Investec Asia Small Cap Fund.
o Provides a more stable base for management of your Fund because daily
purchases and redemptions of shares should have a less significant impact
on the size of the two combined Funds.
o Provide greater investment opportunities. That is, the increased assets of
the two combined Funds will provide the manager with a wider range of
choices among permitted investments than are currently available to the
Funds separately.
Considerations by the Board of Trustees
On September 10, 2001, the Board of Trustees of the Trust, on behalf of
both your Fund and the Investec Asia Small Cap Fund, unanimously approved the
proposed Plan of Reorganization. The Trustees concluded that the reorganization:
o Was in the best interests of the shareholders of both your Fund and the
Investec Asia Small Cap Fund; and
o Would not result in any dilution of the value of your investment or the
investment of the shareholders of the Investec Asia Small Cap Fund.
In approving the Plan of Reorganization, the Trustees, including a
majority of the Trustees who are not "interested persons" (as defined in the
Investment Company Act of 1940, as amended) (the "Independent Trustees"),
considered that, among other things:
o The investment objective and policies of your Fund and those proposed for
the Investec Asia Small Cap Fund are relatively similar (see comparison
charts below);
o Merging your Fund with the Investec Asia Small Cap Fund would result in
the combined Fund having a larger asset base which, over time, may result
in economies of scale and offer improved services to shareholders; and
6
o [The reorganization will qualify as a tax-free reorganization under the
Code.]
How your Fund Compares to the Investec Asia Small Cap Fund.
For complete information about your Fund, or the Investec Asia Small Cap
Fund, please refer to your copy of the Investec Funds' combined prospectus dated
April 26, 2001. You also can call us at 800-915-6565 for a free copy of the
combined prospectus. The information contained in your Fund's prospectus is
incorporated by reference into this Combined Proxy Statement and Prospectus.
Comparison of Investment Objectives. The following table compares
the investment objective of your Fund with the current investment objective of
the Investec Asia Small Cap Fund, and with the investment objective of the
Investec Asia Focus Fund, assuming that shareholders of the Asia Small Cap Fund
vote to approve a proposed change of fundamental investment objective.
--------------------------------------------------------------------------------
Investec Asia New Investec Asia Small Cap Investec Asia Focus Fund:
Economy Fund Fund: Current Assuming that shareholders of
the Asia Small Cap Fund vote to
approve a proposed change of
fundamental investment objective
--------------------------------------------------------------------------------
Long-term capital Long-term capital Long-term capital appreciation
appreciation. appreciation primarily
through investments in
equity securities of
smaller capitalization
issuers that are located
in Asia.
--------------------------------------------------------------------------------
Comparison of Investment Policies and Strategies. Your Fund and the
Investec Asia Small Cap Fund differ primarily in the investment strategies that
they employ to achieve their respective goals. The following table compares the
principal investment policies and strategies of your Fund with the current
principal investment policies and strategies of the Investec Asia Small Cap
Fund, and with the principal investment policies and strategies of the Investec
Asia Focus Fund, assuming that shareholders of the Asia Small Cap Fund vote to
approve a proposed change of fundamental investment objective.
7
-------------------------------------------------------------------------------------------
Investec Asia New Economy Fund Investec Asia Small Cap Investec Asia Focus Fund:
Fund: Current Assuming that shareholders
of the Asia Small Cap Fund
vote to approve a proposed
change of fundamental
investment objective
-------------------------------------------------------------------------------------------
The Fund intends to invest at The Investec Asia Small Cap The Investec Asia Focus
least 85% of its total assets Fund intends to invest at Fund intends to invest at
in securities issued by New least 65% of its total least 65% of its total
Economy companies that are assets in securities issued assets in equities of
traded primarily on the Asian by "small cap" companies companies that are traded
stock markets. that are traded on the Asian on Asian stock markets or
markets. derive a substantial
The New Economy consists of portion of their revenues
those companies that use A small cap company for from business activities
communications technology to purposes of this Fund is a in Asia but which are
create global company that has a market listed and traded
competition. value of less than U.S. $1 elsewhere.
billion.
Under normal market Under normal market
conditions, the Fund will Under normal market conditions, the Investec
invest in at least four conditions, the Investec Asia Focus Fund will
different countries. These Asia Small Cap Fund will invest in at least four
countries include, but are not invest in at least four different countries. These
limited to: different countries. These countries include, but are
countries include, but are not limited to:
o Mainland China, Hong not limited to:
Kong, Taiwan and South o Mainland China, Hong
Korea in Northeast Asia; o Mainland China, Hong Kong, Taiwan and South
Kong, Taiwan and South Korea in Northeast
o Singapore, Thailand, Korea in Northeast Asia; Asia;
Malaysia, Indonesia,
Vietnam and the o Singapore, Thailand, o Singapore, Thailand,
Philippines in Southeast Malaysia, Indonesia, Malaysia, Indonesia,
Asia; and Vietnam and the Vietnam and the
Philippines in Philippines in
o India, Pakistan, Southeast Asia; and Southeast Asia; and
Bangladesh and Sri Lanka
in South Asia. o India, Pakistan, o India, Pakistan,
Bangladesh and Sri Bangladesh,
Under normal market Lanka in South Asia. Sri Lanka, New Zealand
conditions, the Fund intends in South Asia.
to invest in approximately 35 When current market,
to 40 stocks. The Fund manager economic, political or other Under normal market
will invest primarily in conditions are unsuitable conditions, the Fund
medium to large market for the Investec Asia Small intends to invest in
capitalization companies Cap Fund's investment approximately 35 to 40
(companies with market objective, the Investec Asia stocks. The Fund manager
capitalizations greater than Small Cap Fund may will invest primarily in
$1 billion) but may from time temporarily invest up to medium to large market
to time invest in smaller 100% of its assets in cash, capitalization companies
8
-------------------------------------------------------------------------------------------
Investec Asia New Economy Fund Investec Asia Small Cap Investec Asia Focus Fund:
Fund: Current Assuming that shareholders
of the Asia Small Cap Fund
vote to approve a proposed
change of fundamental
investment objective
-------------------------------------------------------------------------------------------
capitalization issues cash equivalents or high (companies with market
(companies with market quality short-term money capitalizations greater
capitalization less than $1 market instruments. However, than $1 billion) but may
billion). the Fund will not engage in from time to time invest in
market timing. The smaller capitalization
When current market, economic, philosophy of the Fund is to issues (companies with
political or other conditions remain invested. market capitalization less
are unsuitable for the Fund's than $1 billion).
investment objective, the Fund
may temporarily invest up to When current market,
100% of its assets in cash, economic, political or
cash equivalents or high other conditions are
quality short-term money unsuitable for the Investec
market instruments. To the Asia Focus Fund's
extent that the Fund is investment objective, the
invested in cash, cash Investec Asia Focus Fund
equivalents or high quality may temporarily invest up
short-term money market to 100% of its assets in
instruments for defensive cash, cash equivalents or
purposes, the Fund's high quality short-term
investment objective may not money market instruments.
be achieved. When investing However, the Fund will not
for temporary defensive engage in market timing.
purposes, the Fund will not The philosophy of the Fund
engage in market timing. The is to remain invested.
philosophy of the Fund is to
remain invested.
Comparison of Principal Investment Risks. The following table
compares the principal investment risks of investing in your Fund with the
principal investment risks of investing in the Investec Asia Small Cap Fund
(Investec Asia Focus Fund).
---------------------------------------------------------------------------------
Investec Asia New Economy Fund Investec Asia Small Cap Fund (Investec
Asia Focus Fund):
---------------------------------------------------------------------------------
You may lose money if any of the You may lose money if any of the
following occurs: following occurs:
o the Asian stock markets decline in o the Asian stock markets decline
value; in value;
o Asian New Economy stocks fall out o Asian small cap stocks fall out
of favor with investors; of favor with investors;
o the value of Asian currencies o small cap stocks are more
declines relative to the U.S. difficult to sell during a down
dollar; market due to lower liquidity;
9
---------------------------------------------------------------------------------
Investec Asia New Economy Fund Investec Asia Small Cap Fund (Investec
Asia Focus Fund):
---------------------------------------------------------------------------------
o a foreign government expropriates o a stock or stocks in the Fund's
the Fund's assets; portfolio do not perform well;
o political, social or economic o the value of Asian currencies
instability in Asia causes the declines relative to the U.S.
value of the Fund's investments to dollar;
decline; or
o a foreign government expropriates
o the Fund manager's investment the Fund's assets; or
strategy does not achieve the
Fund's objective or the manager o political, social or economic
does not implement the strategy instability in Asia causes the
properly. value of the Fund's investments
to decline.
Comparison of Potential Risks and Rewards/Performance. Both Funds
have their own risks and potential rewards. The charts and tables below compare
the potential risks and rewards of investing in each Fund.
The bar charts shown below provide an indication of the risks of investing
in each Fund by showing changes in each Fund's performance for various time
periods ending December 31. The figures shown in the bar charts and tables
assume reinvestment of dividends.
Keep in mind that past performance does not indicate future results.
Investec Asia New Economy Fund*
2000: -38.58%
1999: 61.16%
1998: -11.78%
1997: -37.68%
* Formerly known as the Guinness Flight Asia Blue Chip Fund.
During the period shown in the bar chart, the highest return for a quarter
was 35.67% (quarter ending December 31, 1999) and the lowest return for a
quarter was -26.75% (quarter ending June 30, 1998).
Investec Asia Small Cap Fund
2000: -45.74%
1999: 42.43%
1998: -30.83%
1997: -30.77%
10
During the period shown in the bar chart, the highest return for a quarter
was 40.59% (quarter ending June 30, 1999) and the lowest return for a quarter
was -37.39% (quarter ending December 31, 1997).
The average annual total returns for the two Funds for the periods ended
December 31, 2000 are as follows:
----------------------------------------------------------------------
Average Annual Total Returns Past One Since
Year inception
----------------------------------------------------------------------
Investec Asia New Economy Fund -38.58% -11.49%*
----------------------------------------------------------------------
Investec Asia Small Cap Fund -45.74% -16.99%*
----------------------------------------------------------------------
*Average annual total return since inception, April 29, 1996.
Comparison of Operations.
Investment Advisory Agreement
Investec Asset Management U.S. Limited (the "Adviser") is the investment
adviser for both of the Funds. The Adviser supervises all aspects of each Fund's
operations and advises the Funds, subject to oversight by the Funds' Board of
Trustees. For providing these services, each Fund pays the Adviser an annual 1%
advisory fee. The Adviser's primary offices are located in the U.K., South
Africa, Guernsey, Hong Kong, and the U.S. The U.S. office is located at 1055
Washington Blvd., 3rd Floor Stamford, CT 06901. The Advisers' main office is
located in London, England at 2 Gresham Street, London EC2V 7QP. The Hong Kong
office is located at 2106-2108 Jardine House, One Connaught Place, Central, Hong
Kong. The current Advisory Agreement was approved on behalf of each Fund by the
Board of Trustees on June 3, 1998 and by the shareholders of the Funds on August
25, 1998 at a shareholder meeting called for that purpose.
Administration Agreement, Distribution Agreement and Distribution
Plan
The Trust has entered into separate Administration and Distribution
Agreements with respect to the Funds with Investment Company Administration,
L.L.C. ("Administrator") and Quasar Distributors, LLC ("Distributor"),
respectively.
For its services to the Funds, the Administrator receives a monthly fee
equal to, on an annual basis, 0.25% of each Funds' average daily net assets,
subject to a $40,000 annual minimum for the Investec Asia New Economy Fund and
for the Investec Asia Small Cap Fund.
Under the Distribution Agreement, the Distributor uses all reasonable
efforts, consistent with its other business, to secure purchases for the Funds'
shares and pays the expenses of printing and distributing any prospectuses,
reports and other literature used by the Distributor, advertising, and other
promotional activities in connection with the offering of shares of the Funds
for sale to the public. It is understood that the Administrator may reimburse
the Distributor for these expenses from any source available to it, including
the administration fee paid to the Administrator by the Funds.
11
The Funds will not make separate payments as a result of the Distribution
Plan to the Adviser, the Administrator, Distributor or any other party, it being
recognized that the Funds presently pay, and will continue to pay, an investment
advisory fee to the Adviser and an administration fee to the Administrator. To
the extent that any payments made by the Funds to the Adviser or the
Administrator, including payment of fees under the Investment Advisory Agreement
or the Administration Agreement, respectively, should be deemed to be indirect
financing of any activity primarily intended to result in the sale of shares of
the Funds within the context of rule 12b-1 under the Investment Company Act of
1940, as amended (the "1940 Act"), then such payments shall be deemed to be
authorized by the Plan. The Distribution Plan and related agreements were
approved by the Board of Trustees including all of the "Qualified Trustees"
(Trustees who are not "interested" persons of the Funds, as defined in the 1940
Act, and who have no direct or indirect financial interest in the Plan or any
related agreement).
Transfer Agent and Custodian
Transfer Agent. State Street Bank and Trust Company is the Transfer Agent
for the Funds. The Transfer Agent provides record keeping and shareholder
services. State Street is located at P.O. Box 1912, Boston, MA 02105.
Custodian. Investors Bank and Trust Company is the custodian for the
Funds. The custodian holds the securities, cash and other assets of the Funds.
Investors Bank and Trust is located at 200 Claredon Street, Boston, MA 02116.
Dividends and Other Distributions
Both Funds distribute all or most of their net investment income and net
capital gains to shareholders. Dividends (investment income) for the Funds are
normally declared and paid semi-annually, in June and December. Net capital
gains for the Funds are normally distributed in June and December. When
calculating the amount of capital gain for a Fund, the Fund can offset any
capital gain with net capital loss (which may be carried forward from a previous
year).
Your dividends and/or capital gains distributions will be automatically
reinvested on the ex-dividend date when there is a distribution, unless you
elect otherwise, so that you will be buying more of both full and fractional
shares of the Fund. You will be buying those new shares at the NAV per share on
the ex-dividend date. You may choose to have dividends and capital gains
distributions paid to you in cash. You may also choose to reinvest dividends and
capital gains distributions in shares of another Investec Fund. You may
authorize either of these options by calling the Transfer Agent at (800)
915-6565 and requesting an optional shareholder services form. Dividends and
distributions are treated in the same manner for federal income tax purposes
whether you receive them in the form of cash or additional shares.
Purchase, Redemption and Exchange Procedures
The Transfer Agent is open from 8 a.m. to 6 p.m. Eastern Time for
purchase, redemption and exchange orders. Shares will be purchased, exchanged
and redeemed at NAV per share. For trades in the Investec Asia New Economy Fund
and the Investec Asia Small Cap Fund the cut-off time is 9:30 a.m. Eastern Time,
meaning that purchase, exchange and
12
redemption orders must be received by that time to be processed that day. The
phone number you should call for account transaction requests is (800) 915-6565.
Exchange and Redemption Rights
You may exchange or redeem shares by mail or telephone. When you exchange
shares, you sell shares of one Investec Fund and buy shares of another Fund. You
may realize either a gain or loss on those shares and will be responsible for
paying the appropriate taxes. If you exchange or redeem through a broker, the
broker may charge you a transaction fee. If you purchased your shares by check,
you may not receive your redemption proceeds until the check has cleared, which
may take up to 15 calendar days.
Trustees
The Board of Trustees of the Trust is responsible for the management of
both Funds.
Comparison of Shareholder Rights. As series of the Trust,
both Funds' shareholders have the same rights, including, but not limited to,
par value, preemptive rights, preference and appraisal rights.
Capitalization of the Funds. The table below show existing
capitalization as of September 30, 2001, as well as pro forma capitalization as
of the same date, which reflects the impact of any corporate actions, including
accounting adjustments, required to facilitate the reorganization. For these
reasons, the total pro forma combined Total Net Assets may differ from the
combined net assets of the Funds prior to the reorganization.
------------------------------------------------------------------------
Total Net Shares
Assets (000) Outstanding (000)
------------------------------------------------------------------------
Investec Asia New Economy Fund $2,959 628
------------------------------------------------------------------------
Investec Asia Small Cap Fund $11,007 2,442
------------------------------------------------------------------------
Combined Pro Forma $13,966 3,098
------------------------------------------------------------------------
Required Vote
Approval of the Proposal requires approval of a majority of the
outstanding shares of your Fund. Should the Plan of Reorganization not be
approved, the Board of Trustees would determine what, if any, further action
should be taken, including continuing to operate your Fund or liquidating it.
Board Recommendation
THE BOARD OF TRUSTEES RECOMMENDS THAT
SHAREHOLDERS VOTE "FOR" THE PROPOSAL
PART 3 - MORE ON PROXY VOTING AND MEETING of SHAREHOLDER S
Who Can Vote
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Only shareholders of record of the Fund at the close of business on the
Record Date, __________, 2001, may vote for the proposal at the Meeting. As of
the Record Date, the Fund had ________shares of beneficial interest issued and
outstanding, each share being entitled to one vote.
Information Concerning Outstanding Shares
[To the best knowledge of the Fund, no person beneficially owned 5% or
more of the outstanding shares of the Fund as of the Record Date. As of the
Record Date, the Trustees and officers as a group owned beneficially less than
1% of the outstanding shares of the Fund.]
Quorum Requirements
At the Meeting, the presence in person or by proxy of shareholders of
one-third of the outstanding shares entitled to vote at the Meeting shall be
necessary and sufficient to constitute a quorum for the transaction of business.
In the event that a quorum of shareholders is not present at the Meeting, the
persons named as proxies shall have the power to adjourn the Meeting. Such
meeting shall be reconvened without additional notice. In the event a quorum is
present but sufficient votes to approve the proposal are not received, the
persons named as proxies may propose one or more adjournments to permit further
solicitation of proxies. If this should occur, we will vote proxies for or
against a motion to adjourn in the same proportion to the votes received in
favor or against the proposal.
You may cast one vote for the proposal for each whole share that you own
of the Fund. We count your fractional shares as fractional votes. If we receive
your proxy before the Meeting date, we will vote your shares as you instruct the
proxies. If you sign and return your proxy, but do not specify instructions, we
will vote your shares in favor of the proposal. You may revoke your proxy at any
time before the Meeting if you notify us in writing, or if you attend the
Meeting in person and vote in person.
If a proxy represents a broker "non-vote" (that is, a proxy from a broker
or nominee indicating that such person has not received instructions from the
beneficial owner or other person entitled to vote shares on a particular matter
with respect to which the broker or nominee does not have discretionary power)
or is marked with an abstention, the shares represented thereby will be
considered to be present at the Meeting for purposes of determining the
existence of a quorum for the transaction of business but will not be voted. For
this reason, a broker "non-vote" and abstentions will have the affect of a "no"
vote for purposes of obtaining the requisite approval of the proposal.
The Proxy Solicitation Process
The Board of Trustees of the Trust is soliciting your proxy to vote on the
matters described in this Combined Prospectus and Proxy Statement. We expect to
solicit proxies primarily by mail, but representatives of the Fund, the Adviser,
their affiliates or others may communicate with you by mail or by telephone or
other electronic means to discuss your vote. Such individuals will receive no
additional compensation from the Fund for soliciting your proxy vote. [The Fund
has also retained Georgeson Shareholder, a professional proxy solicitation firm,
14
to assist in the solicitation of proxies. The cost of the services of Georgeson
Shareholder will be shared equally by the Fund and the Adviser and is expected
to be approximately $_____.]
If you do not expect to attend the Meeting, please sign your proxy card
promptly and return it in the enclosed envelope to avoid unnecessary expense and
delay. No postage is necessary. You may also vote your shares by phone at
1-800-690-6903, by fax at _____________, or via the internet at
http//www.proxyvote.com. If you need assistance, or have any questions regarding
the proposal or how to vote your shares, please call the Fund at 1-800-434-5623.
A proxy is revocable at any time prior to its use.
Other business. The Board of Trustees knows of no other business to be
brought before the Meeting. If any other matters properly come before the
Meeting, and on all matters incidental to the conduct of the Meeting, the named
proxies will vote all proxies using their best judgment on such matters unless
instructed to the contrary.
Recommendation of the Board of Trustees. After carefully considering all
of the issues involved, the Board of Trustees of the Trust has unanimously
concluded that the proposal is in the best interests of shareholders. The Board
of Trustees recommends that you vote to approve the Proposal.
PART 4 - FUND INFORMATION
The Trust is a business trust established under Delaware law. The
operations of The Trust is governed by a Trust Instrument dated March 7,
1997.
Each Fund is a separate series of the Trust and, as such, has similar
rights under the Trust Instrument of the Trust and applicable Delaware law.
You should be aware of the following features of the Funds:
o Shares of each Fund participate equally in dividends and other
distributions attributable to that Fund, including any distributions in
the event of a liquidation.
o Each share of the Funds is entitled to one vote for all purposes.
o Shares of all series of the Trust vote for the election of Trustees and on
any other matter that affects all series of the Trust in substantially the
same manner, except as otherwise required by law.
o As to matters that affect each Fund differently, such as approval of an
investment advisory agreement, shares of each series vote as a separate
series.
o Delaware law does not require registered investment companies, such as the
Trust or its series, to hold annual meetings of shareholders and it is
anticipated that shareholder meetings will be held only when specifically
required by federal or state law.
o Shareholders have available certain procedures for the removal of
Trustees.
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o The Trust indemnifies trustees and officers to the fullest extent
permitted under federal and Delaware law.
Financial Statements. Ernst & Young LLP, independent auditors of the
Trust, has audited the financial statements for the year ended December 31, 2000
incorporated by reference into the Statement of Additional Information date
April 26, 2001.
PART 5 - FORM OF AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION
This AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION ("Agreement") is
made as of October __, 2001, between Investec Funds, a Delaware business trust
(the "Trust"), on behalf of Investec Asia Small Cap Fund, a series of the Trust
("Acquiring Fund"), and the Trust, on behalf of, Investec Asia New Economy Fund
a series of the Trust ("Target"). (Acquiring Fund and Target are sometimes
referred to herein individually as a "Fund" and collectively as the "Funds," and
the Trust is sometimes referred to herein as the "Investment Company.")
All agreements, representations, and obligations described herein, made or
to be taken or undertaken by either Fund, are made or shall be taken or
undertaken by the Trust on the Fund's behalf.
In accordance with the terms and conditions set forth in this Agreement,
the parties desire that Target transfer substantially all its assets to
Acquiring Fund in exchange solely for voting shares of beneficial interest of
Acquiring Fund ("Acquiring Fund's Shares") and the assumption by Acquiring Fund
of substantially all of Target's liabilities, and that Target distribute
Acquiring Fund's Shares pro rata to the holders of shares of beneficial interest
in Target ("Target's Shares") in liquidation of Target. All such transactions
with respect to Target and Acquiring Fund are referred to herein collectively as
the "Reorganization."
It is intended by the parties hereto that the Reorganization constitute a
reorganization within the meaning of Section 368(a)(1) of the Internal Revenue
Code of 1986, as amended (the "Code"). The parties hereto hereby adopt this
Agreement as a "plan of reorganization" within the meaning of Treasury
Regulation Sections 1.368-2(g) and 1.368-3(a).
In consideration of the mutual promises herein, the parties covenant and
agree as follows:
1. PLAN OF REORGANIZATION AND LIQUIDATION OF TARGET
1.1. At the Effective Time (as defined in paragraph 3.1), Target agrees
to assign, sell, convey, transfer, and deliver all of its assets
described in paragraph 1.2 ("Assets") to Acquiring Fund. Acquiring
Fund agrees in exchange therefore:
(a) to issue and deliver to Target the number of full and
fractional Acquiring Fund's Shares determined by dividing the
net value of Target (computed as set forth in paragraph 2.1)
by the "NAV" (computed as set forth in paragraph 2.2) of
Acquiring Fund's Shares; and
16
(b) to assume Target's liabilities described in paragraph 1.3
("Liabilities").
1.2. Assets shall include, without limitation, all cash, cash
equivalents, securities, receivables (including interest and
dividends receivable), claims and rights of action, rights to
register shares under applicable securities laws, books and records,
deferred and prepaid expenses shown as assets on Target's books, and
other property owned by Target at the Effective Time as defined in
paragraph 3.1.
1.3. Liabilities shall include (except as otherwise provided herein) all
of Target's known liabilities, debts and obligations arising in the
ordinary course of business reflected on the books of Target at the
Effective Time, and any contingent liabilities, if any, as the Board
of Trustees shall reasonably deem exist against Target at the
Effective Time, for which contingent and other appropriate liability
reserves shall be established on Target's books. Notwithstanding the
foregoing, Target agrees to use its best efforts to discharge all of
its known Liabilities prior to the Effective Time.
1.4. At or immediately before the Effective Time, Target shall declare
and pay to its shareholders a dividend and/or other distribution in
an amount large enough so that it will have distributed
substantially all (and in any event not less than 90%) of its
investment company taxable income (computed without regard to any
deduction for dividends paid) and substantially all of its realized
net capital gain, if any, for the current taxable year through the
Effective Time.
1.5. At the Effective Time (or as soon thereafter as is reasonably
practicable), Target shall distribute Acquiring Fund's Shares
received by it pursuant to paragraph 1.1 to Target's shareholders of
record, determined as of the Effective Time (collectively
"Shareholders" and individually a "Shareholder"), in exchange for
Target's Shares and in liquidation of Target. To accomplish this
distribution, Acquiring Fund's transfer agent ("Transfer Agent")
shall open accounts on Acquiring Fund's share transfer books in the
Shareholders' names and transfer Acquiring Fund's Shares thereto.
Each Shareholder's account shall be credited with the pro rata
number of full and fractional (rounded to the third decimal place)
Acquiring Fund's Shares due that Shareholder. All outstanding
Target's Shares, including any represented by certificates, shall
simultaneously be canceled on Target's share transfer books.
Acquiring Fund shall not issue certificates representing Acquiring
Fund's Shares in connection with the Reorganization. However,
certificates representing Target's Shares shall represent Acquiring
Fund's Shares after the Reorganization.
1.6. As soon as reasonably practicable after distribution of Acquiring
Fund's Shares pursuant to paragraph 1.5, Target shall be terminated
and any further actions shall be taken in connection therewith as
required by applicable law. Target shall file such instruments and
shall take all other steps necessary to effect a complete
liquidation and dissolution of Target.
1.7. Any reporting responsibility of Target to a public authority is and
shall remain its responsibility up to and including the date on
which it is terminated.
17
1.8. Any transfer taxes payable upon issuance of Acquiring Fund's Shares
in a name other than that of the registered holder on Target's books
of Target's Shares exchanged therefor shall be paid by the person to
whom Acquiring Fund's Shares are to be issued, as a condition of
such transfer.
2. VALUATION
2.1. For purposes of paragraph 1.1(a), Target's net value shall be (a)
the value of the Assets computed as of the close of regular trading
on the New York Stock Exchange ("NYSE") on the date of the Closing
as defined in paragraph 3.1 ("Valuation Time"), using the valuation
procedures set forth in Target's then current prospectus and
statement of additional information less (b) the amount of the
Liabilities as of the Valuation Time.
2.2. For purposes of paragraph 1.1(a), the NAV of Acquiring Fund's Shares
shall be computed as of the Valuation Time, using the valuation
procedures set forth in Acquiring Fund's then current prospectus and
statement of additional information.
2.3. All computations pursuant to paragraphs 2.1 and 2.2 shall be made by
or under the direction of Investec Asset Management U.S. Limited.
3. CLOSING AND EFFECTIVE TIME
3.1. The Reorganization, together with related acts necessary to
consummate the same ("Closing"), shall occur at the Funds' principal
offices, located at 1055 Washington Blvd., Stamford, CT 06901 on
____________, 2001, or at such other place and/or on such other date
upon which the parties may agree. All acts taking place at the
Closing shall be deemed to take place simultaneously as of the close
of business on the date thereof or at such other time upon which the
parties may agree ("Effective Time"). If, immediately before the
Valuation Time, (a) the NYSE is closed to trading or trading thereon
is restricted or (b) trading or the reporting of trading on the NYSE
or elsewhere is disrupted, so that accurate appraisal of the net
value of Target and the NAV for Acquiring Fund is impracticable, the
Effective Time shall be postponed until the first business day after
the day when such trading shall have been fully resumed and such
reporting shall have been restored.
3.2. Target shall deliver to the Trust at the Closing a schedule of its
Assets as of the Effective Time, which shall set forth for all
portfolio securities included therein their adjusted tax bases and
holding periods by lot. Target's custodian shall deliver at the
Closing a certificate of an authorized officer stating that (a) the
Assets held by the custodian will be transferred to Acquiring Fund
at the Effective Time and (b) all necessary taxes in conjunction
with the delivery of the Assets, including all applicable federal
and state stock transfer stamps, if any, have been paid or provision
for payment has been made.
3.3. The Transfer Agent shall deliver at the Closing a certificate as to
the opening on Acquiring Fund's share transfer books of accounts in
the names of Target's Shareholders. The Trust shall issue and
deliver a confirmation to Target evidencing
18
Acquiring Fund's Shares to be credited to Target at the Effective
Time or provide evidence satisfactory to Target that Acquiring
Fund's Shares have been credited to Target's account on Acquiring
Fund's books. At the Closing, each party shall deliver to the other
such bills of sale, checks, assignments, stock certificates,
receipts, or other documents as the other party or its counsel may
reasonably request.
3.4. The Trust, on behalf of Target and Acquiring Fund, respectively,
shall deliver at the Closing a certificate executed in its name by
its President or a Vice President and dated as of the Effective
Time, to the effect that the representations and warranties it
made in this Agreement are true and correct in all material respects
at the Effective Time, with the same force and effect as if made at
and as of the Effective Time, except as they may be affected by the
transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1. Target represents and warrants as follows:
4.1.1. At the Closing, Target will have good and marketable title
to its Assets and full right, power, and authority to sell,
assign, transfer, and deliver its Assets free of any liens
or other encumbrances; and upon delivery and payment for
the Assets, Acquiring Fund will acquire good and marketable
title thereto;
4.1.2. Acquiring Fund's Shares are not being acquired for the
purpose of making any distribution thereof, other than in
accordance with the terms hereof;
4.1.3. Target's current prospectus and statement of additional
information conform in all material respects to the
applicable requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the Investment Company Act of
1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, and do not include any untrue
statement of a material fact or omit any material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading;
4.1.4. Target is not in violation of, and the execution and
delivery of this Agreement and consummation of the
transactions contemplated hereby will not (a) conflict with
or violate Delaware law or any provision of the Trust's
Trust Instrument or By-laws or of any agreement,
instrument, lease, or other undertaking to which Target is
a party or by which it is bound or (b) result in the
acceleration of any obligation, or the imposition of any
penalty, under any agreement, judgment, or decree to which
Target is a party or by which it is bound, except as
previously disclosed in writing to and accepted by the
Trust;
4.1.5. Except as otherwise disclosed in writing to and accepted by
the Trust, all material contracts and other commitments of
or applicable to Target (other than this Agreement and
investment contracts, including options and futures) will
be terminated, or provision for discharge of any
liabilities of Target thereunder will be made, at or prior
to the Effective Time, without Target incurring any
liability or penalty with respect thereto and without
diminishing or releasing any rights
19
Target may have had with respect to actions taken or not
taken by any other party thereto prior to the Closing;
4.1.6. Except as otherwise disclosed in writing to and accepted by
the Trust on behalf of Acquiring Fund, no litigation,
administrative proceeding, or investigation of or before
any court or governmental body is presently pending or (to
Target's knowledge) threatened against Target or any of its
properties or assets that, if adversely determined, would
materially and adversely affect Target's financial
condition or the conduct of its business; Target knows of
no facts that might form the basis for the institution of
any such litigation, proceeding, or investigation and is
not a party to or subject to the provisions of any order,
decree, or judgment of any court or governmental body that
materially or adversely affects its business or its ability
to consummate the transactions contemplated hereby;
4.1.7. The execution, delivery, and performance of this Agreement
has been duly authorized as of the date hereof by all
necessary action on the part of the Trust's Board of
Trustees on behalf of Target, which has made the
determinations required by Rule 17a-8(a) under the 1940
Act; and, subject to approval by Target's shareholders and
receipt of any necessary exemptive relief or no-action
assurances requested from the Securities and Exchange
Commission ("SEC") or its staff with respect to Sections
17(a) and 17(d) of the 1940 Act, this Agreement will
constitute a valid and legally binding obligation of
Target, enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and
similar laws relating to or affecting creditors' rights and
by general principles of equity;
4.1.8. At the Effective Time, the performance of this Agreement
shall have been duly authorized by all necessary action by
Target's shareholders;
4.1.9. No governmental consents, approvals, authorizations, or
filings are required under the 1933 Act, the Securities
Exchange Act of 1934, as amended ("1934 Act"), or the 1940
Act for the execution or performance of this Agreement by
Target, except for (a) a proxy statement ("Proxy
Statement"), the information for which is included in a
combined prospectus and proxy statement filed by Acquiring
Fund with the SEC on Form N-14, (b) receipt of the
exemptive relief or no-action assurances referenced in
subparagraph 4.1.7, and (c) such consents, approvals,
authorizations, and filings as have been made or received
or as may be required subsequent to the Effective Time;
4.1.10. On the effective date of the Registration Statement, at
the time of the shareholders' meeting referred to in
paragraph 5.2, and at the Effective Time, the Proxy
Statement will (a) comply in all material respects with the
applicable provisions of the 1933 Act, the 1934 Act, and
the 1940 Act and the rules and regulations thereunder and
(b) not contain any untrue statement of a material fact or
omit any 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
misleading. This provision shall not apply to statements in
or
20
omissions from the Proxy Statement made in reliance on and
in conformity with information furnished by the Trust for
use therein.
4.2. Acquiring Fund represents and warrants as follows:
4.2.1. Acquiring Fund's Shares to be issued and delivered to
Target hereunder will, at the Effective Time, have been
duly authorized and, when issued and delivered as provided
herein, will be duly and validly issued and outstanding
shares of Acquiring Fund, fully paid and nonassessable by
the Trust (except as disclosed in the Trust's then current
prospectus and statement of additional information). Except
as contemplated by this Agreement, Acquiring Fund does not
have outstanding any options, warrants, or other rights to
subscribe for or purchase any of its shares, nor is there
outstanding any security convertible into any of its
shares;
4.2.2. Acquiring Fund's current prospectus and statement of
additional information conform in all material respects to
the applicable requirements of the 1933 Act and the 1940
Act and the rules and regulations thereunder and do not
include any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
4.2.3. Acquiring Fund is not in violation of, and the execution
and delivery of this Agreement and consummation of the
transactions contemplated hereby (a) will not conflict with
or violate Delaware law or any provision of the Trust's
Trust Instrument or By-laws or any provision of any
agreement, instrument, lease, or other undertaking to which
Acquiring Fund is a party or by which it is bound or (b)
result in the acceleration of any obligation, or the
imposition of any penalty, under any agreement, judgment,
or decree to which Acquiring Fund is a party or by which it
is bound, except as previously disclosed in writing to and
accepted by the Trust;
4.2.4. Except as otherwise disclosed in writing to and accepted by
the Trust on behalf of Target, no litigation,
administrative proceeding, or investigation of or before
any court or governmental body is presently pending or (to
Acquiring Fund's knowledge) threatened against the Trust
with respect to Acquiring Fund or any of its properties or
assets that, if adversely determined, would materially and
adversely affect Acquiring Fund's financial condition or
the conduct of its business; Acquiring Fund knows of no
facts that might form the basis for the institution of any
such litigation, proceeding, or investigation and is not a
party to or subject to the provisions of any order, decree,
or judgment of any court or governmental body that
materially or adversely affects its business or its ability
to consummate the transactions contemplated hereby;
4.2.5. The execution, delivery, and performance of this Agreement
has been duly authorized as of the date hereof by all
necessary action on the part of the Trust's Board of
Trustees on behalf of Acquiring Fund, which has made the
21
determinations required by Rule 17a-8(a) under the 1940
Act; and, subject to receipt of any necessary exemptive
relief or no-action assurances requested from the SEC or
its staff with respect to Sections 17(a) and 17(d) of the
1940 Act, this Agreement will constitute a valid and
legally binding obligation of Acquiring Fund, enforceable
in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws relating to or
affecting creditors' rights and by general principles of
equity;
4.2.6. No governmental consents, approvals, authorizations, or
filings are required under the 1933 Act, the 1934 Act, or
the 1940 Act for the execution or performance of this
Agreement by the Trust, except for (a) the filing with the
SEC of the Registration Statement and a post-effective
amendment to the Trust's registration statement on Form
N-14, (b) receipt of the exemptive relief or no-action
assurances referenced in subparagraph 4.2.5, and (c) such
consents, approvals, authorizations, and filings as have
been made or received or as may be required subsequent to
the Effective Time;
4.3. The Trust, on behalf of each Fund, represents and warrants to the
other as follows:
4.3.1. The Trust is a business trust that is duly organized,
validly existing, and in good standing under the laws of
the State of Delaware; and a copy of its Certificate of
Trust is on file with the Secretary of the State of
Delaware;
4.3.2. The Trust is duly registered as an open-end management
investment company under the 1940 Act, and such
registration will be in full force and effect at the
Effective Time;
4.3.3. Each Fund is a duly established and designated series of
the Trust.
5. COVENANTS
5.1. Each Fund covenants to operate its respective business in the
ordinary course between the date hereof and the Closing, it being
understood that (a) such ordinary course will include declaring and
paying customary dividends and other distributions and such changes
in operations as are contemplated by each Fund's normal business
activities and (b) each Fund will retain exclusive control of the
composition of its portfolio until the Closing, provided that Target
shall not dispose of more than an insignificant portion of its
historic business assets during such period without Acquiring Fund's
prior consent.
5.2. Target covenants to call a special meeting of shareholders to
consider and act upon this Agreement and to take all other action
necessary to obtain approval of the transactions contemplated
hereby.
5.3. Target covenants that Acquiring Fund's Shares to be delivered
hereunder are not being acquired for the purpose of making any
distribution thereof, other than in accordance with the terms
hereof.
22
5.4. Target covenants that it will assist the Trust in obtaining such
information as the Trust reasonably requests concerning the
beneficial ownership of Target's Shares.
5.5. Target covenants that its books and records (including all books and
records required to be maintained under the 1940 Act and the rules
and regulations thereunder) will be turned over to the Trust at the
Closing.
5.6. Each Fund covenants to cooperate in preparing the Proxy Statement in
compliance with applicable federal securities laws.
5.7. Each Fund covenants that it will, from time to time, as and when
requested by the other Fund, execute and deliver or cause to be
executed and delivered all such assignments and other instruments,
and will take or cause to be taken such further action, as the other
Fund may deem necessary or desirable in order to vest in, and
confirm to (a) Acquiring Fund, title to and possession of all
Target's Assets, and (b) Target, title to and possession of
Acquiring Fund's Shares to be delivered hereunder, and otherwise to
carry out the intent and purpose hereof.
5.8. Acquiring Fund covenants to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act,
and such state securities laws as it may deem appropriate in order
to continue its operations after the Effective Time.
5.9. Subject to this Agreement, each Fund covenants to take or cause to
be taken all actions, and to do or cause to be done all things,
reasonably necessary, proper, or advisable to consummate and
effectuate the transactions contemplated hereby.
6. CONDITIONS PRECEDENT
6.1. Each Fund's obligations hereunder shall be subject to (a)
performance by the other Fund of all the obligations to be performed
hereunder at or before the Effective Time, (b) all representations
and warranties of the other Fund contained herein being true and
correct in all material respects as of the date hereof and, except
as they may be affected by the transactions contemplated hereby, as
of the Effective Time, with the same force and effect as if made at
and as of the Effective Time, and (c) the following further
conditions that, at or before the Effective Time:
6.1.1. This Agreement and the transactions contemplated hereby
shall have been duly adopted and approved by the Trust's
Board of Trustees on behalf of Target and Acquiring Fund
and shall have been approved by Target's shareholders in
accordance with applicable law.
6.1.2. All necessary filings shall have been made with the SEC and
state securities authorities, and no order or directive
shall have been received that any other or further action
is required to permit the parties to carry out the
transactions contemplated hereby. The Registration
Statement shall have become effective under the 1933 Act,
no stop orders suspending the effectiveness thereof shall
have been issued, and the SEC shall not have issued an
unfavorable report with respect
23
to the Reorganization under Section 25(b) of the 1940 Act
nor instituted any proceedings seeking to enjoin
consummation of the transactions contemplated hereby under
Section 25(c) of the 1940 Act. All consents, orders, and
permits of federal, state, and local regulatory authorities
(including the SEC and state securities authorities) deemed
necessary by either Fund to permit consummation, in all
material respects, of the transactions contemplated hereby
shall have been obtained, except where failure to obtain
the same would not involve a risk of a material adverse
effect on the assets or properties of the Fund.
6.1.3. At the Effective Time, no action, suit, or other proceeding
shall be pending before any court or governmental agency in
which it is sought to restrain or prohibit, or to obtain
damages or other relief in connection with, the
transactions contemplated hereby.
6.1.4 Target shall have received an opinion of Kramer Levin
Naftalis & Frankel LLP, counsel to the Trust ("Counsel"),
substantially to the effect that:
6.1.4.1. Acquiring Fund is a validly existing series of the
Trust, a business trust duly formed and validly
existing and in good standing under the laws of the
State of Delaware with the power under its Trust
Instrument to carry on its business and to own all
of its properties and assets;
6.1.4.2. This Agreement (a) has been duly authorized and
executed by the Trust on behalf of Acquiring Fund
and (b) assuming due authorization, execution, and
delivery of this Agreement by Target, is a legal,
valid and binding obligation of Acquiring Fund,
enforceable against Acquiring Fund in accordance
with its terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency,
reorganization, receivership, fraudulent conveyance,
moratorium or other laws of general application
relating to or affecting the enforcement of
creditors' rights and remedies, as from time to time
in effect, (ii) application of equitable principles
(regardless of whether such enforceability is
considered in a proceeding in equity or at law) and
(iii) principles of course of dealing or course of
performance and standards of good faith, fair
dealing, materiality and reasonableness that may be
applied by a court to the exercise of rights and
remedies;
6.1.4.3. Acquiring Fund's Shares to be issued and delivered
to the Shareholders under this Agreement, assuming
their due delivery as contemplated by this
Agreement, will be duly authorized and validly
issued and outstanding and fully paid and
nonassessable (except as disclosed in the Trust's
then current prospectus and statement of additional
information);
6.1.4.4. The execution and delivery of this Agreement did
not, and the consummation of the transactions
contemplated hereby will not (a) materially violate
the Trust's Trust Instrument or By-laws or any
provision of any agreement to which the Trust (with
respect to Acquiring Fund) is a party or by which it
is bound or (b) to the knowledge of Counsel, result
in
24
the acceleration of any obligation, or the
imposition of any penalty, under any agreement,
judgment, or decree known to Counsel to which the
Trust (with respect to Acquiring Fund) is a party or
by which it (with respect to Acquiring Fund) is
bound, except as set forth in such opinion or as
previously disclosed in writing to and accepted by
the Trust;
6.1.4.5. To the knowledge of Counsel, no consent, approval,
authorization or order of any Delaware or Federal
Court or governmental authority of the State of
Delaware or the United States of America is required
for the consummation by the Trust on behalf of
Acquiring Fund, of the transactions contemplated by
the Agreement, except such as may be required under
the 1933 Act, the 1934 Act and the 1940 Act and
under securities laws of states other than the State
of Delaware;
6.1.4.6. The Trust is registered with the SEC as an
investment company, and to the knowledge of Counsel
no order has been issued or proceeding instituted to
suspend such registration; and
6.1.4.7. To the knowledge of Counsel, (a) no litigation,
administrative proceeding, or investigation of or
before any court or governmental body is pending or
threatened as to the Trust (with respect to
Acquiring Fund) or any of its properties or assets
attributable or allocable to Acquiring Fund and (b)
the Trust (with respect to Acquiring Fund) is not a
party to or subject to the provisions of any order,
decree, or judgment of any court or governmental
body that materially and adversely affects Acquiring
Fund's business, except as set forth in such opinion
or as otherwise disclosed in writing to and accepted
by the Trust.
In rendering such opinion, Counsel may (i) rely, as to
matters governed by the laws of the State of Delaware, on
an opinion of competent Delaware counsel, (ii) make
assumptions regarding the authenticity, genuineness, and/or
conformity of documents and copies thereof without
independent verification thereof, and other customary
assumptions as the parties may agree, (iii) limit such
opinion to applicable federal and state law, (iv) define
the word "knowledge" and related terms to mean the
knowledge of attorneys then with such firm who have devoted
substantive attention to matters directly related to this
Agreement and the Reorganization; and (v) rely on
certificates of officers or trustees of the Trust, in each
case reasonably acceptable to the Trust.
6.1.5. Acquiring Fund shall have received an opinion of Counsel,
substantially to the effect that:
6.1.5.1. Target is a validly existing series of the Trust,
a business trust duly organized and validly existing
and in good standing under the laws of the State of
Delaware with power under its Trust Instrument to
own all of its properties and assets and, to the
knowledge of Counsel, to carry on its business as
presently conducted;
25
6.1.5.2. This Agreement (a) has been duly authorized and
executed by the Trust on behalf of Target and (b)
assuming due authorization, execution, and delivery
of this Agreement by the Trust on behalf of
Acquiring Fund, is a legal, valid and binding
obligation of Target, enforceable against Target in
accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, receivership, fraudulent
conveyance, moratorium or other laws of general
application relating to or affecting the enforcement
of creditors' rights and remedies, as from time to
time in effect, (ii) application of equitable
principles (regardless of whether such
enforceability is considered in a proceeding in
equity or at law) and (iii) principles of course of
dealing or course of performance and standards of
good faith, fair dealing, materiality and
reasonableness that may be applied by a court to the
exercise of rights and remedies;
6.1.5.3. The execution and delivery of this Agreement did
not, and the consummation of the transactions
contemplated hereby will not, (a) materially violate
the Trust's Trust Instrument or By-laws or any
provision of any agreement known to Counsel, to
which the Trust (with respect to Target) is a party
or by which it is bound or (b) to the knowledge of
such counsel, result in the acceleration of any
obligation, or the imposition of any penalty, under
any agreement, judgment, or decree known to Counsel
to which the Trust (with respect to Target) is a
party or by which it (with respect to Target) is
bound, except as set forth in such opinion or as
previously disclosed in writing to and accepted by
the Trust;
6.1.5.4. To the knowledge of Counsel, no consent, approval,
authorization or order of any Delaware or Federal
Court or governmental authority of the State of
Delaware or the United States of America is required
for the consummation by the Trust on behalf of
Target, of the transactions contemplated by the
Agreement, except such as may be required under the
1933 Act, the 1934 Act and the 1940 Act and under
securities laws of states other than the State of
Delaware;
6.1.5.5. The Trust is registered with the SEC as an
investment company, and to the knowledge of Counsel
no order has been issued or proceeding instituted to
suspend such registration; and
6.1.5.6. To the knowledge of Counsel, (a) no litigation,
administrative proceeding, or investigation of or
before any court or governmental body is pending or
threatened as to the Trust (with respect to Target)
or any of its properties or assets attributable or
allocable to Target and (b) the Trust (with respect
to Target) is not a party to or subject to the
provisions of any order, decree, or judgment of any
court or governmental body that materially and
adversely affects Target's business, except as set
forth in such opinion or as otherwise disclosed in
writing to and accepted by the Trust.
26
In rendering such opinion, Counsel may (i) rely, as to
matters governed by the laws of the State of Delaware, on
an opinion of competent Delaware counsel, (ii) make
assumptions regarding the authenticity, genuineness, and/or
conformity of documents and copies thereof without
independent verification thereof, and other customary
assumptions as the parties may agree, (iii) limit such
opinion to applicable federal and state law, (iv) define
the word "knowledge" and related terms to mean the
knowledge of attorneys then with such firm who have devoted
substantive attention to matters directly related to this
Agreement and the Reorganization, and (v) rely on
certificates of officers or trustees of Target; in each
case reasonably acceptable to the Trust.
6.1.6. [The Trust, on behalf of Target and Acquiring Fund, shall
have received an opinion of Counsel addressed to and in
form and substance reasonably satisfactory to it, as to the
federal income tax consequences of the Reorganization ("Tax
Opinion"). In rendering the Tax Opinion, Counsel may rely
as to factual matters, exclusively and without independent
verification, on the representations made in this Agreement
(and/or in separate letters addressed to Counsel) and each
Fund's separate covenants. Each Fund agrees to make
reasonable covenants and representations as to factual
matters as of the Effective Time in connection with the
rendering of such opinion. The Tax Opinion shall be
substantially to the effect that, based on the facts and
assumptions stated therein and conditioned on consummation
of the Reorganization in accordance with this Agreement,
for federal income tax purposes:
6.1.6.1. The Reorganization will constitute a
reorganization within the meaning of section
368(a)(1) of the Code, and each Fund will be "a
party to a reorganization" within the meaning of
section 368(b) of the Code;
6.1.6.2. No gain or loss will be recognized by Target on
the transfer to Acquiring Fund of its assets in
exchange solely for Acquiring Fund's Shares and
Acquiring Fund's assumption of Target's liabilities
or on the subsequent distribution of those shares to
the Shareholders in liquidation of Target;
6.1.6.3. No gain or loss will be recognized by Acquiring
Fund on its receipt of Targets assets in exchange
solely for Acquiring Fund's Shares and its
assumption of Target's liabilities;
6.1.6.4. Acquiring Fund's adjusted tax basis in the assets
acquired from Target will be equal to the basis
thereof in Target's hands immediately before the
Reorganization, and Acquiring Fund's holding period
for the assets acquired from Target will include
Target's holding period therefor;
6.1.6.5. A Shareholder will recognize no gain or loss on
the exchange of Target Shares solely for Acquiring
Fund's Shares pursuant to the Reorganization; and
27
6.1.6.6. A Shareholder's aggregate tax basis in Acquiring
Fund's Shares received by it in the Reorganization
will equal its aggregate tax basis in its Target
Shares surrendered in exchange therefor, and its
holding period for Acquiring Fund Shares received in
the reorganization will include its holding period
for Target Shares surrendered in exchange therefor,
provided such Target Shares are held as capital
assets by the Shareholder at the Effective Time.]
6.2. At any time before the Closing, either Fund may waive any of the
foregoing conditions if, in the judgment of the Trust's Board of
Trustees, such waiver will not have a material adverse effect on its
shareholders' interests.
7. BROKERAGE FEES AND EXPENSES
7.1. The Trust, on behalf of each Fund, represents and warrants that
there are no brokers or finders entitled to receive any payments in
connection with the transactions provided for herein.
7.2. The Funds will be responsible for paying the following expenses
incurred in connection with the Reorganization:
[to be provided]
8. ENTIRE AGREEMENT; SURVIVAL
8.1. Neither party has made any representation, warranty, or covenant not
set forth herein, and this Agreement constitutes the entire
agreement between the parties. The representations, warranties, and
covenants contained herein or in any document delivered pursuant
hereto or in connection herewith shall survive the Closing.
9. TERMINATION OF AGREEMENT
9.1. This Agreement may be terminated at any time at or prior to the
Effective Time, whether before or after approval by Target's
Shareholders:
9.1.1. By either Fund (a) in the event of a material breach of any
representation, warranty, or covenant contained herein to
be performed at or prior to the Effective Time, (b) if a
condition to its obligations has not been met and it
reasonably appears that such condition will not or cannot
be met, or (c) if the Closing has not occurred on or before
_____________, 2002; or
9.1.2. By the parties' mutual agreement.
9.2. In the event of termination under paragraphs 0(a), (b) or (c) or 0,
there shall be no liability for damages on the part of either Fund
affected by the termination, or the trustees or officers of the
Trust, to the other Fund.
28
10. AMENDMENT
10.1. This Agreement may be amended, modified, or supplemented at any
time, notwithstanding approval thereof by Target's Shareholders, in
such manner as may be mutually agreed upon in writing by the
parties; provided that following such approval no such amendment
shall have a material adverse effect on such Shareholders'
interests.
11. MISCELLANEOUS
11.1. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Delaware; provided that, in the
case of any conflict between such laws and the federal securities
laws, the latter shall govern.
11.2. Nothing expressed or implied herein is intended or shall be
construed to confer upon or give any person, firm, trust, or
corporation other than the parties and their respective successors
and assigns any rights or remedies under or by reason of this
Agreement.
11.3. The parties acknowledge that the Trust is a business trust. Notice
is hereby given that this instrument is executed on behalf of the
Trust's Trustees solely in their capacity as trustees, and not
individually, and that the Trust's obligations under this instrument
on behalf of each Fund are not binding on or enforceable against any
of its trustees, officers, or shareholders, but are only binding on
and enforceable against the respective Funds' assets and property.
Each Fund agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the corresponding Fund's assets and
property in settlement of such rights or claims and not to such
Trustees or shareholders or to the assets of any other series of the
Trust.
11.4. The Trust agrees to indemnify and hold harmless each Trustee of the
Trust at the time of the execution of this Agreement against
expenses, including reasonable attorneys' fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by such
Trustee in connection with any claim that is asserted against such
trustee arising out of such person's service as a Trustee of the
Trust, provided that such indemnification shall be limited to the
full extent of the indemnification that is available to the Trustees
of the Trust pursuant to the provisions of the Trust's Trust
Instrument and applicable law.
11.5 The Trust, on behalf of each Fund, hereby waives any conflict
arising out of the representation of each Fund by Counsel.
29
IN WITNESS WHEREOF, each party has caused this Agreement to be executed
by its duly authorized officer.
ATTEST: INVESTEC FUNDS, on behalf of the
Investec Asia Small Cap Fund
By: _________________________________ By: ________________________________
Eric M. Banhazl Royce N. Brennan
Secretary President
ATTEST: INVESTEC FUNDS, on behalf of the
Investec Asia New Economy Fund
By: _________________________________ By: ________________________________
Eric M. Banhazl Royce N. Brennan
Secretary President
30
Part B
STATEMENT OF ADDITIONAL INFORMATION
_______, 2001
Acquisition of the Assets of
INVESTEC FUNDS
Asia New Economy Fund
by and in exchange for all the shares of
INVESTEC FUNDS
Asia Small Cap Fund
This Statement of Additional Information dated __________, 2001, is not a
prospectus, but should be read in conjunction with the Combined Proxy Statement
and Prospectus dated ___________, 2001. This Statement of Additional Information
is incorporated by reference in its entirety into the Combined Proxy Statement
and Prospectus. Copies of the Combined Proxy Statement and Prospectus may be
obtained by writing Investec Funds at 1055 Washington Blvd., 3rd Floor,
Stamford, CT 06901 or by calling toll free 1-800-915-6565.
TABLE OF CONTENTS
Page
Statement of Additional Information of the Investec Asia Small Cap
Fund and Investec Asia New Economy Fund, both of which are series of
the Investec Funds, dated April 26, 2001. 2
Financial Statements of Investec Asia Small Cap Fund and Investec
Asia New Economy Fund, dated December 31, 2000 June 30, 2001. 2
STATEMENT OF ADDITIONAL INFORMATION OF THE REGISTRANT AND OF THE COMPANY
BEING ACQUIRED
The Statement of Additional Information of the Investec Asia Small Cap
Fund (the "Registrant") and the Investec Asia New Economy Fund (the "Company
Being Acquired"), both of which are series of the Investec Funds, dated April
26, 2001, as filed with the Securities and Exchange Commission on April 26,
2001, pursuant to Rule 485(b) (File No. 33-75340) hereby is incorporated by
reference. You may obtain a copy at no cost by writing Investec Funds at
1055 Washington Blvd., 3rd Floor, Stamford, CT 06901 or by calling toll free
1-800-915-6565.
FINANCIAL STATEMENTS OF THE REGISTRANT AND OF THE COMPANY BEING ACQUIRED
The audited and unaudited Financial Statements of the Investec Asia Small
Cap Fund (the "Registrant") and the Investec Asia New Economy Fund (the "Company
Being Acquired"), both of which are series of the Investec Funds, are
incorporated by reference to the Annual Report and Semi-Annual Report of the
Investec Funds (File No. 33-75340) dated December 31, 2000 and June 30, 2001,
respectively. You may obtain copies at no cost by writing Investec Funds at 1055
Washington Blvd., 3rd Floor, Stamford, CT 06901 or by calling toll free
1-800-915-6565.
The following unaudited pro forma financial information combines the
Schedules of Portfolio Investments, the Statements of Assets and Liabilities,
and the Statements of Operations, as of September 30, 2001, of the Investec
Asia New Economy Fund and the Investec Asia Small Cap Fund to reflect the
reorganization of the Investec Asia New Economy Fund into the Investec Asia
Small Cap Fund. The pro forma financial information shows the expected
effect of the reorganization transaction on the Investec Asia Small Cap Fund.
INVESTEC ASIA NEW ECONOMY FUND AND
INVESTEC ASIA SMALL CAP FUND
PRO FORMA COMBINING PORTFOLIO OF INVESTMENTS
SEPTEMBER 30, 2001
(UNAUDITED)
------------------------------------------------------------------------------------------------------------------------------------
Shares Value
------------------------------------------------------------------------------------------------------------------------------------
Asia New Asia Small Asia New Asia Small Pro Pro
Economy Fund Cap Fund Pro Forma Economy Fund Cap Fund Forma Forma
(Historical) (Historical) Combined (Historical) (Historical) Adjust Combined
------------ ------------ ----------- ------------ ------------ ------- --------
HONG KONG
40,000 - 40,000 China Mobile (Hong Kong) Ltd.* $ 127,188 $ - $ - $ 127,188
- 1,400,000 1,400,000 Chaoda Modern Agriculture (Holdings), Inc.* - 367,972 - 367,972
- 510,000 510,000 China Pharmaceutical Enterprise * - 654 - 654
81,000 - 81,000 China Unicom Ltd.* 87,236 - - 87,236
20,000 - 20,000 Citic Pacific Ltd. 37,695 - - 37,695
25,200 109,214 134,414 Dah Sing Financial Holdings 112,115 485,893 - 598,008
- 400,840 400,840 Esprit Holdings Ltd. - 380,309 - 380,309
- 672,000 672,000 Giordano International Ltd. - 303,712 - 303,712
- 1,100,000 1,100,000 Global Bio-Chem Technology Group Co. Ltd.* - 263,735 - 263,735
- 5,200,000 5,200,000 Global Tech Holdings - 346,689 - 346,689
- 577,777 577,777 Global Tech Holdings Wts. - 7,630 - 7,630
- 2,000,000 2,000,000 Glorious Sun Enterprises Ltd. - 238,477 - 238,477
- 1,342,400 1,342,400 HKR International Ltd. - 301,199 - 301,199
17,200 - 17,200 HSBC Holdings Plc 180,281 - - 180,281
33,000 - 33,000 Hutchison Whampoa 245,400 - - 245,400
- 850,000 850,000 JCG Holdings Ltd. - 460,446 - 460,446
70,000 - 70,000 Johnson Electric Holdings 63,722 - - 63,722
- 962,000 962,000 Kingboard Chemicals Holdings Ltd.* - 428,611 - 428,611
- 96,200 96,200 Kingboard Chemicals Holdings Ltd. Wts.* - 2,960 - 2,960
32,000 - 32,000 Li & Fung Ltd. 30,361 - - 30,361
- 652,000 652,000 Nanjing Panda Electronics Co., Ltd.* - 142,112 - 142,112
373,142 - 373,142 Pacific Century CyberWorks Ltd. 91,856 - - 91,856
- 454,000 454,000 QPL International Holdings Ltd.* - 83,239 - 83,239
- 90,800 90,800 QPL International Holdings Ltd. Wts.* - 2,561 - 2,561
- 1,000,000 1,000,000 Quality Healthcare Asia Ltd.* - 32,694 - 32,694
- 54,000 54,000 Roadshow Holdings Ltd. - 9,831 - 9,831
- 230,000 230,000 Shui On Construction - 134,175 - 134,175
- 1,400,000 1,400,000 Texwinca Holdings Ltd. - 426,309 - 426,309
- 560,000 560,000 Varitronix International Ltd. - 244,118 - 244,118
35,000 - 35,000 Wharf Holdings Ltd. 58,113 - - 58,113
17,000 70,000 87,000 Wing Hang Bank Ltd. 53,183 218,988 - 272,171
---------- --------- ----- ----------
1,087,150 4,882,314 - 5,969,464
---------- --------- ----- ----------
------------------------------------------------------------------------------------------------------------------------------------
Shares Value
------------------------------------------------------------------------------------------------------------------------------------
Asia New Asia Small Asia New Asia Small Pro Pro
Economy Fund Cap Fund Pro Forma Economy Fund Cap Fund Forma Forma
(Historical) (Historical) Combined (Historical) (Historical) Adjust Combined
------------ ------------ ----------- ------------ ------------ ------- --------
MALAYSIA
- 300,000 300,000 Gamuda Berhad - 331,579 - 331,579
- 200,000 200,000 Hong Leong Bank - 168,421 - 168,421
13,000 84,000 84,000 Unisem (M) Berhad 23,434 151,421 - 174,855
---------- --------- ----- ----------
23,434 651,421 - 674,855
---------- --------- ----- ----------
PHILIPPINES
- 700,000 700,000 Cosmos Bottling Corp. - 79,065 - 79,065
---------- --------- ----- ----------
SINGAPORE
- 380,000 380,000 Comfort Group Ltd. - 124,763 - 124,763
- 71,800 71,800 Datacraft Asia Ltd. - 235,504 - 235,504
17,890 - 17,890 DBS Group Holdings Ltd. 97,726 - - 97,726
- 340,000 340,000 First Captial Corp. - 178,031 - 178,031
- 220,000 220,000 Flextech Holdings Ltd. - 47,324 - 47,324
9,000 - 9,000 Singapore Press Holdings 80,496 - - 80,496
8,120 - 8,120 United Overseas Bank 44,127 - - 44,127
14,000 52,000 66,000 Venture Manufacturing Ltd. 69,344 257,564 - 326,908
---------- --------- ----- ----------
291,693 843,186 - 1,134,879
---------- --------- ----- ----------
SOUTH KOREA
- 5,200 5,200 Cheil Communications, Inc. - 367,270 - 367,270
- 37,750 37,750 Daeduck Electrnoics Co., Ltd. - 243,175 - 243,175
- 28,000 28,000 Future Systems Inc. - 256,595 - 256,595
- 11,000 11,000 Humax Co., Ltd. - 160,276 - 160,276
12,500 - 12,500 Kookmin Bank 154,333 - - 154,333
- 77,800 77,800 Korea Circuit Co. - 187,937 - 187,937
3,907 - 3,907 Korea Telecom Corp. ADR 68,372 - - 68,372
1,830 - 1,830 Samsung Electronics GDR 196,472 - - 196,472
22,000 - 22,000 Shinhan Financial Group Ltd. 166,687 - - 166,687
- 8,044 8,044 Shinsegae Department Stores - 567,522 - 567,522
780 - 780 SK Telecom Co. 124,417 - - 124,417
4,000 - 4,000 SK Telecom Co. Wts. 72,120 - - 72,120
- 22,000 22,000 Uniwide Technologies, Inc. - 79,295 - 79,295
---------- --------- ----- ----------
782,401 1,862,070 - 2,644,471
---------- --------- ----- ----------
TAIWAN
1,031 - 1,031 Acer, Inc. 1,423 - - 1,423
179,400 179,400 Advantech Co. Ltd. - 332,704 - 332,704
13,000 97,856 110,856 Ambit Microsystems Corp. 42,002 316,168 - 358,170
49,400 - 49,400 Asustek Computer GDR 146,820 - - 146,820
29,400 - 29,400 Delta Electronic Industrial 32,118 - - 32,118
58,800 58,800 Faraday Technology Corp.* - 183,164 - 183,164
24,400 - 24,400 Hon Hai Precision Industry 77,068 - - 77,068
7,000 - 7,000 MediaTek, Inc. 51,116 - - 51,116
89,572 89,572 Procomp Informatics Co., Ltd.* - 94,737 - 94,737
------------------------------------------------------------------------------------------------------------------------------------
Shares Value
------------------------------------------------------------------------------------------------------------------------------------
Asia New Asia Small Asia New Asia Small Pro Pro
Economy Fund Cap Fund Pro Forma Economy Fund Cap Fund Forma Forma
(Historical) (Historical) Combined (Historical) (Historical) Adjust Combined
------------ ------------ ----------- ------------ ------------ ------- --------
TAIWAN - (Continued)
236,155 236,155 Prodisc International* - 203,924 - 203,924
30,000 148,500 178,500 Realtek Semiconductor Corp.* 81,715 404,491 - 486,206
87,455 - 87,455 Siliconware Precision GDR* 43,335 - - 43,335
75,270 75,270 Stark Technology, Inc.* - 221,384 - 221,384
119,280 - 119,280 Taiwan Semiconductor Manufacturing Co. Ltd.* 161,413 - - 161,413
117,150 - 117,150 United Microelectronics Corp.* 91,317 - - 91,317
12,000 - 12,000 Via Technologies, Inc.* 29,731 - - 29,731
306,944 306,944 Weltrend Semiconductor, Inc.* - 223,248 - 223,248
317,892 317,892 World Wiser Electronics, Inc.* - 155,676 - 155,676
299,223 299,223 Zyxel Communications Corp.* - 267,055 - 267,055
---------- ----------- ----- -----------
758,058 2,402,551 - 3,160,609
---------- ----------- ----- -----------
THAILAND
8,000 - 8,000 Advanced Info Service (FB) 85,611 - - 85,611
- 600,000 600,000 United Broadcasting Corp.* - 82,284 - 82,284
---------- ----------- ----- -----------
85,611 82,284 - 167,895
---------- ----------- ----- -----------
Total Common Stocks
(cost $ 4,886,373 and
$16,342,338 respectively) 3,028,347 10,802,891 - 13,831,238
---------- ----------- ----- -----------
Total Investments in Securities
(cost $ 4,886,373 and
$16,342,338, respectively+) 3,028,347 10,802,891 - 13,831,238
Other Assets less Liabilities (69,346) 204,374 - 135,028
---------- ----------- ----- -----------
Net Assets $2,959,001 $11,007,265 $ - $13,966,266
========== =========== ===== ===========
+ Cost for Federal income tax purposes is the same.
Net unrealized appreciation (depreciation) consists of:
Gross unrealized appreciation $ 84,081 $1,296,168 $ - $ 1,380,249
Gross unrealized depreciation $(1,942,107) (6,835,615) - (8,777,722)
=========== =========== ===== ===========
Net unrealized depreciation $(1,858,026) $(5,539,447) $ - $(7,397,473)
=========== =========== ===== ===========
* Non-income producing security.
See accompanying Notes to Pro Forma Combining Financial Statements.
INVESTEC ASIA NEW ECONOMY FUND AND
INVESTEC ASIA SMALL CAP FUND
PRO FORMA COMBINING STATEMENT OF ASSETS AND LIABILITIES
SEPTEMBER 30, 2001
(UNAUDITED)
Asia New Asia Small
Economy Fund Cap Fund Pro Forma Pro Forma
(Historical) (Historical) Adjust Combined
------------- ------------- ------------- -------------
ASSETS
Investments in securities, at cost $ 4,886,373 $ 16,342,338 $ 0 $ 21,228,711
============= ============= ============= =============
Investments in securities, at value $ 3,028,347 $ 10,802,891 $ 0 $ 13,831,238
Cash 20,905 231,739 -- 252,644
Receivables:
Fund shares sold 1,000 20,000 -- 21,000
Dividends and interest 3,216 8,518 -- 11,734
Due from advisor 819 349 -- 1,168
Prepaid expenses and other assets 5,479 3,239 -- 8,718
------------- ------------- ------------- -------------
Total assets 3,059,766 11,066,736 -- 14,126,502
------------- ------------- ------------- -------------
LIABILITIES
Payables:
Securities purchased 66,406 -- -- 66,406
Unrealized loss on forward foreign currency contracts 74 -- -- 74
Accrued expenses 32,437 56,873 -- 89,310
Deferred trustees' compensation 1,848 2,598 -- 4,446
------------- ------------- ------------- -------------
Total liabilities 100,765 59,471 -- 160,236
------------- ------------- ------------- -------------
NET ASSETS $ 2,959,001 $ 11,007,265 $ 0 $ 13,966,266
============= ============= ============= =============
Number of shares issued and outstanding
(unlimited shares authorized no par value) 628,591 2,442,071 27,507 3,098,169
============= ============= ============= =============
Net asset value per share $ 4.71 $ 4.51 $ 4.51
============= ============= ============= =============
COMPONENTS OF NET ASSETS
Paid-in capital $ 7,387,348 $ 107,356,586 $ 0 $ 114,743,934
Accumulated net investment income (loss) (6,930) 63,319 -- 56,389
Accumulated net realized loss on investments (2,563,603) (90,873,183) -- (93,436,786)
Net unrealized appreciation (depreciation) on: --
Investments (1,858,026) (5,539,447) -- (7,397,473)
Foreign currency 212 (10) -- 202
------------- ------------- ------------- -------------
Net assets $ 2,959,001 $ 11,007,265 $ 0 $ 13,966,266
============= ============= ============= =============
See accompanying Notes to Pro Forma Combining Financial Statements.
INVESTEC ASIA NEW ECONOMY FUND AND
INVESTEC ASIA SMALL CAP FUND
PRO FORMA COMBINING STATEMENT OF OPERATIONS
SEPTEMBER 30, 2001
(UNAUDITED)
Asia New Asia Small
Economy Fund Cap Fund Pro Forma Pro Forma
(Historical) (Historical) Adjust Combined
----------- ---------- --------- -----------
INVESTMENT INCOME
Income
Dividends + $63,020 $297,156 $0 $360,176
Interest 2,841 5,878 - 8,719
----------- ---------- ---- -----------
Total income 65,861 303,034 - 368,895
----------- ---------- ---- -----------
Expenses
Advisory fees 36,763 121,068 - 157,831
Fund accounting fees 42,423 44,226 - 86,649
Transfer agent fees 38,128 63,803 - 101,931
Custody fees 10,095 18,909 - 29,004
Administration fees 14,850 30,267 - 45,117
Audit fees 20,354 22,825 - 43,179
Registration expense 12,819 14,517 - 27,336
Reports to shareholders 3,720 20,769 - 24,489
Legal fees 1,878 6,519 - 8,397
Trustee fees 4,438 6,772 - 11,210
Insurance expense 359 2,199 - 2,558
Interest expense 2,924 12,404 - 15,328
Miscellaneous 2,395 3,223 - 5,618
----------- ---------- ---- -----------
Total expenses 191,146 367,501 - 558,647
Less: fees waived and expenses absorbed (118,355) (127,786) - (246,141)
----------- ---------- ---- -----------
Net expenses 72,791 239,715 - 312,506
----------- ---------- ---- -----------
Net investment income (loss) (6,930) 63,319 - 56,389
----------- ---------- ---- -----------
REALIZED AND UNREALIZED GAIN (LOSS) ON INVESTMENTS
Net realized loss on investments (602,701) (2,561,499) - (3,164,200)
Net realized loss on foreign currency (12,489) (37,880) - (50,369)
Net unrealized appreciation (depreciation) on:
Investments (860,740) 1,421,249 - 560,509
Foreign currency (2,128) 1,002 - (1,126)
----------- ---------- ---- -----------
Net realized and unrealized loss on investments (1,478,058) (1,177,128) - (2,655,186)
----------- ---------- ---- -----------
Net decrease in net assets resulting
from operations ($1,484,988) ($1,113,809) $0 ($2,598,797)
=========== ========== ==== ===========
+ Net of foreign tax withheld of $12,226 for the Asia New Economy Fund and
$30,939 for the Asia Small Cap Fund.
See accompanying Notes to Pro Forma Combining Financial Statements.
INVESTEC FUNDS
NOTES TO PRO FORMA COMBINING FINANCIAL STATEMENT
--------------------------------------------------------------------------------
NOTE 1 - BASIS OF PRO FORMA PRESENTATION
The pro forma combining financial statements and the accompanying pro forma
schedules of investments give effect to the proposed Agreements and Plans of
Reorganization pursuant to which the Investec Asia New Economy Fund (the
"Acquired Fund") will transfer all of its assets and liabilities to the Investec
Asia Small Cap Fund (the "Acquiring Fund"), respectively, in exchange for shares
of the corresponding Acquiring Fund. The Investec Asia Small Cap Fund will be
the legal and accounting survivor of the reorganizations. The pro forma
statements should be read in conjunction with the historical financial
statements of the Investec Asia New Economy included in the Statement of
Additional Information.
It is contemplated that the reorganizations will be accounted for as a tax-free
reorganization of investment companies.
INVESTEC FUNDS
PART C
ITEM 15. INDEMNIFICATION.
The response to this item is incorporated by reference to Item 25 of Part C
of Post-Effective Amendment No. 29 to the Registrant's Registration Statement
on Form N-1A as filed April 26, 2001, accession number 0000922423-01-500074.
Item 16. Exhibits:
(1)(a) Certificate of Trust. (1)
(1)(b) Amendment to Certificate of Trust dated September 8, 2000. (2)
(2) Bylaws. (1)
(3) Not Applicable.
(4) Form of Agreement and Plan of Reorganization and Liquidation.
(5)(a) Trust Instrument. (1)
(5)(b) Amendment to Trust Instrument. (2)
(5)(c) Schedule A to Trust Instrument as of June 28, 2000. (2)
(6) Investment Advisory Agreement between Registrant and Investec Asset
Management U.S., Limited (formerly Guinness Flight Investment
Management Limited). (3)
(7) General Distribution Agreement between Registrant and First Fund
Distributors, Inc. (3)
(8) Not Applicable.
(9) Amended Custodian Agreement between Registrant and Investors Bank &
Trust Company. (3)
(10)(a) Distribution and Service Plan. (3)
(10)(b) Form of Distribution Plan for a class of the Guinness Flight Wired(R)
Index Fund. (4)
---------------
(1) Filed as an Exhibit to Post-Effective Amendment No. 7 to Registrant's
Registration Statement on Form N-1A filed electronically on March 20,
1997, accession number 0000922423-96-000220 and incorporated herein by
reference.
(2) Filed as an Exhibit to Post-Effective Amendment No. 28 to Registrant's
Registration Statement on Form N-1A filed electronically on October 13,
2000, accession number 0000922423-96-500010 and incorporated herein by
reference.
(3) Filed as an Exhibit to Post-Effective Amendment No. 12 to Registrant's
Registration Statement on Form N-1A filed electronically on August 28,
1998, accession number 0000922423-98-000948 and incorporated herein by
reference.
(4) Filed as an Exhibit to Post-Effective Amendment No. 24 to Registrant's
Registration Statement on Form N-1A filed electronically on December 23,
1999, accession number 0000922423-99-001476 and incorporated herein by
reference.
C-1
(10)(c) Form of Rule 18f-3 Multi-Class Plan. (5)
(11)(a) Consent of Counsel.
(11)(b) Opinion of counsel (to be filed by amendment).
(11)(c) Opinion of Delaware counsel (to be filed by amendment).
(12) Tax Opinion (to be filed by amendment).
(13) Not Applicable.
(14) Consent of Ernst & Young LLP, Independent Auditors for the
Registrant.
(15) Not Applicable.
(16) Powers of Attorney.
(17) Form of Proxy Card.
ITEM 17. Undertakings
(1) The undersigned registrant agrees that prior to any public reoffering of
the securities registered through the use of a prospectus which is a part
of this registration statement by any person or party who is deemed to be
an underwriter within the meaning of Rule 145(c) under the Securities Act
of 1933, as amended (the "Securities Act"), the reoffering prospectus will
contain the information called for by the applicable registration form for
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(2) The undersigned registrant agrees that every prospectus that is filed
under paragraph (1) above will be filed as a part of an amendment to the
registration statement and will not be used until the amendment is
effective, and that, in determining any liability under the Securities
Act, each post-effective amendment shall be deemed to be a new
registration statement for the securities offered therein, and the
offering of the securities at that time shall be deemed to be the initial
bona fide offering of them.
---------------
(5) Filed as an Exhibit to Post-Effective Amendment No. 26 to Registrant's
Registration Statement on Form N-1A filed electronically on June 30, 2000,
accession number 0000922423-00-000903 and incorporated herein by
reference.
C-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement on Form N-14 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York
and State of New York, on the 19th day of October, 2001.
INVESTEC FUNDS
By: /s/ Royce N. Brennan
--------------------------------------
Royce N. Brennan
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form N-14 has been signed below by the following
persons in the capacities indicated on the 19th of October, 2001.
Signature Title Date
/s/ Eric Banhazl Treasurer October 19, 2001
----------------------
Eric Banhazl
/s/ Dr. Gunter Dufey Trustee October 19, 2001
----------------------
*Dr. Gunter Dufey
/s/ J. I. Fordwood Trustee October 19, 2001
----------------------
*J. I. Fordwood
/s/ Timothy Guinness Trustee October 19, 2001
----------------------
*Timothy Guinness
/s/ Bret A. Herscher Trustee October 19, 2001
----------------------
*Bret A. Herscher
/s/ J. Brooks Reece, Jr. Trustee October 19, 2001
----------------------
*J. Brooks Reece, Jr.
*By: /s/ Susan Penry-Williams
---------------------------
Susan Penry-Williams
Attorney-in-Fact
EXHIBIT INDEX
EX-99.4 Form of Agreement and Plan of Reorganization and Liquidation.
EX-99.11(a) Consent of Counsel.
EX-99.11(b) Opinion of counsel (to be filed by amendment).
EX-99.12 Opinion of Delaware counsel (to be filed by amendment).
EX-99.14 Consent of Ernst & Young LLP, Independent Auditors for the
Registrant.
EX-99.16 Powers of Attorney
EX-99.17 Form of Proxy Card