This AGREEMENT AND PLAN OF
REORGANIZATION, dated as of October __, 2003, is between the California Money Market
Portfolio, a series of Xxxxxxx Tax-Free Reserves, and the Money Market Portfolio, a series
of Xxxxxxx Tax-Free Reserves.
In
consideration of the mutual promises contained in this Agreement, the parties agree as
follows:
1.
SHAREHOLDER APPROVAL
Approval by
Shareholders. A meeting of the shareholders of California Money Market Portfolio
shall be called and held for the purpose of acting on and authorizing the transactions
contemplated in this Agreement and Plan of Reorganization (the “Agreement” or
“Plan”). Money Market Portfolio shall furnish to California Money Market
Portfolio such data and information as shall be reasonably requested by California Money
Market Portfolio for inclusion in the information to be furnished to its shareholders in
connection with the meeting.
2. REORGANIZATION
| (a) |
Plan of Reorganization. California Money Market Portfolio
will convey, transfer, and deliver to Money Market Portfolio all of the
then-existing assets of California Money Market Portfolio at the closing
provided for in Section 2(b) of this Agreement (the “Closing”). In
consideration thereof, Money Market Portfolio agrees at the Closing: |
| |
(i) |
to deliver to California Money Market Portfolio in exchange for the assets the
number of full and fractional shares of common stock of Money Market Portfolio
(“Money Market Portfolio Shares”) to be determined as follows: |
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In
accordance with Section 3 of this Agreement, the number of shares shall be determined by
dividing the per share net asset value of California Money Market Portfolio Shares
(rounded to the nearest millionth) by the net asset value per share of Money Market
Portfolio (rounded to the nearest millionth) and multiplying the quotient by the number of
outstanding shares of California Money Market Portfolio as of the close of business on the
closing date. It is expressly agreed that there will be no sales charge to California
Money Market Portfolio, or to any of the shareholders of California Money Market Portfolio
upon distribution of Money Market Portfolio Shares to them; and |
| |
(ii) |
not to assume any of California Money Market Portfolio’s obligations and
liabilities, whether absolute, accrued, contingent, or otherwise. |
| (b) |
Closing and Effective Time of the
Reorganization. The Closing shall occur at the Effective Time of the
Reorganization, which shall be either: |
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(iii) |
the later of receipt of all necessary regulatory approvals and the final
adjournment of the meeting of shareholders of California Money Market Portfolio
at which the Plan will be considered, or |
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(iv) |
such later date as the parties may mutually agree. |
3.
VALUATION OF NET ASSETS
| (a) |
The value of California Money Market Portfolio’s net assets to be
transferred to Money Market Portfolio under this Agreement shall be computed as
of the close of business (coinciding with the closing of the regular session of
the New York Stock Exchange (NYSE) (normally 4:00 p.m. ET)) on the business day
immediately preceding the Closing Date (hereinafter the “Valuation
Date”) using the valuation procedures as set forth in Money Market
Portfolio’s prospectus. |
| (b) |
The net asset value per share of Money Market Portfolio Shares for purposes of
Section 2 of this Agreement shall be determined as of the close of business on
the Valuation Date by Money Market Portfolio’s Controller using the same
valuation procedures as set forth in Money Market Portfolio’s prospectus. |
| (c) |
A copy of the computation showing in reasonable detail the valuation of
California Money Market Portfolio’s net assets to be transferred to Money
Market Portfolio pursuant to Section 2 of this Agreement, certified by the
Controller of California Money Market Portfolio, shall be furnished by
California Money Market Portfolio to Money Market Portfolio at the Closing. A
copy of the computation showing in reasonable detail the determination of the
net asset value per share of Money Market Portfolio Shares pursuant to Section 2
of this Agreement, certified by the Controller of Money Market Portfolio, shall
be furnished by Money Market Portfolio to California Money Market Portfolio at
the Closing. |
| 4. |
LIQUIDATION AND DISSOLUTION |
| (a) |
As soon as practicable after the Closing Date, California Money Market Portfolio
will distribute pro rata to California Money Market Portfolio shareholders of
record as of the close of business on the Closing Date the shares of Money
Market Portfolio received by California Money Market Portfolio pursuant to
Section 2 (a) of this Agreement. Such liquidation and distribution will be
accompanied by the establishment of shareholder accounts on the share records of
Money Market Portfolio in the names of each such shareholder of California Money
Market Portfolio, representing the respective pro rata number of full shares and
fractional interests in shares of Money Market Portfolio due to each. No such
shareholder accounts shall be established by Money Market Portfolio or its
transfer agent for Money Market Portfolio except pursuant to written
instructions from California Money Market Portfolio, and California Money Market
Portfolio agrees to provide on the Closing Date instructions to transfer to a
shareholder account for each former California Money Market Portfolio
shareholder a pro rata share of the number of shares of Money Market Portfolio
received pursuant to Section 2(a) of this Agreement. |
| (b) |
Promptly after the distribution described in Section 4(a) above, appropriate
notification will be mailed by Money Market Portfolio or its transfer agent to
each shareholder of California Money Market Portfolio receiving such
distribution of shares of Money Market Portfolio informing such shareholder of
the number of such shares distributed to such shareholder and confirming the
registration thereof in such shareholder’s name. |
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Share
certificates representing holdings of shares of Money Market Portfolio shall not be issued
unless requested by the shareholder and, if such a request is made, share certificates of
Money Market Portfolio will be issued only for full shares of Money Market Portfolio and
any fractional interests in shares shall be credited in the shareholder’s account
with Money Market Portfolio. |
| (d) |
As promptly as is practicable after the liquidation of California Money Market
Portfolio, and in no event later than 12 months from the date of this Agreement,
California Money Market Portfolio shall be terminated pursuant to the provisions
of the Plan and its By-laws and Declaration of Trust. |
| (e) |
Immediately after the Closing Date, the share transfer books of California Money
Market Portfolio shall be closed and no transfer of shares shall thereafter be
made on those books. |
| 5. |
DECLARATION OF TRUST AND BY-LAWS |
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Declaration
of Trust. The Declaration of Trust of Xxxxxxx Tax-Free Reserves, which
governs its series, Money Market Portfolio, in effect at the Effective Time of the
Reorganization, shall continue to be the Declaration of Trust until amended as provided by
law. |
| (b) |
By-laws. The By-laws of Xxxxxxx Tax-Free Reserves, which govern its
series, Money Market Portfolio, in effect at the Effective Time of the
Reorganization, shall continue to be the By-laws until the same shall thereafter
be altered, amended, or repealed in accordance with said By-laws. |
| 6. |
REPRESENTATIONS AND WARRANTIES OF MONEY MARKET PORTFOLIO |
| (a) |
Organization, Existence, etc. Money Market Portfolio is a
duly organized series of Xxxxxxx Tax-Free Reserves, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts, and has the power
to carry on its business as it is now being conducted. Currently, Money Market
Portfolio is not qualified to do business as a foreign corporation under the
laws of any jurisdiction. Money Market Portfolio has all necessary federal,
state and local authorization to own all of its properties and assets and to
carry on its business as now being conducted. |
| (b) |
Registration as Investment Company. Xxxxxxx Tax-Free
Reserves, of which Money Market Portfolio is a series, is registered under the
Investment Company Act of 1940 (the “Act”) as an open-end diversified
management investment company. Its registration has not been revoked or
rescinded and is in full force and effect. |
| (c) |
Capitalization. Money Market Portfolio has an unlimited number of shares
of beneficial interest, no par value, of which as of August 31, 2003,
[______________] shares were outstanding, and no shares were held in the
treasury of Money Market Portfolio. All of the outstanding shares of Money
Market Portfolio have been duly authorized and are validly issued, fully paid,
and non-assessable. Since Money Market Portfolio is a series of an open-end
investment company engaged in the continuous offering and redemption of its
shares, the number of outstanding shares may change prior to the Effective Time
of the Reorganization. |
| (d) |
Shares to be Issued Upon
Reorganization. Money Market Portfolio Shares to be issued in connection
with the Reorganization have been duly authorized and upon consummation of the
Reorganization will be validly issued, fully paid and non-assessable. |
| (e) |
Authority Relative to this Agreement. Xxxxxxx
Tax-Free Reserves has the power to enter into the Plan on behalf of its series,
Money Market Portfolio, and to carry out its obligations under this Agreement.
The execution and delivery of the Plan and the consummation of the transactions
contemplated have been duly authorized by the Board of Trustees of Xxxxxxx
Tax-Free Reserves and no other proceedings by Xxxxxxx Tax-Free Reserves are
necessary to authorize its officers to effectuate the Plan and the transactions
contemplated. Money Market Portfolio is not a party to or obligated under any
charter, by-law, indenture, or contract provision or any other commitment or
obligation, or subject to any order or decree, which would be violated by its
executing and carrying out the Plan. |
| (f) |
Liabilities. There are no liabilities of Xxxxxxx Tax-Free Reserves on
behalf of its series, Money Market Portfolio, whether or not determined or
determinable, other than liabilities disclosed or provided for in Money Market
Portfolio Financial Statements and liabilities incurred in the ordinary course
of business subsequent to December 31, 2002, or otherwise previously disclosed
to California Money Market Portfolio, none of which has been materially adverse
to the business, assets or results of operations of Money Market Portfolio. |
| (g) |
Litigation. To the knowledge of Money Market Portfolio there are no
claims, actions, suits, or proceedings, pending or threatened, which would
adversely affect Money Market Portfolio or its assets or business, or which
would prevent or hinder consummation of the transactions contemplated by this
Agreement. |
| (h) |
Contracts. Except for contracts and agreements previously disclosed to
California Money Market Portfolio under which no default exists, Money Market
Portfolio is not a party to or subject to any material contract, debt
instrument, plan, lease, franchise, license, or permit of any kind or nature
whatsoever. |
| (i) |
Registration Statement. Money Market Portfolio shall have filed
with the Securities and Exchange Commission (the “Commission”) a
Registration Statement under the Securities Act of 1933 (“Securities
Act”) relating to the shares of capital stock of Money Market Portfolio
issuable under this Agreement. At the time the Registration Statement becomes
effective, the Registration Statement: |
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(i) |
will comply in all material respects with the provisions of the Securities Act
and the rules and regulations of the Commission thereunder (the
“Regulations”), and |
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(ii) |
will not contain an untrue statement of material fact or omit to state a
material act required to be stated therein or necessary to make the statements
therein not misleading. |
Further, at the time the Registration
Statement becomes effective, at the time of the shareholders’ meeting referred to in
Section 1, and at the Effective Time of the Reorganization, the Prospectus and Statement
of Additional Information included therein, as amended or supplemented by any amendments
or supplements filed by Money Market Portfolio, will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided,
however, that none of the representations and warranties in this subsection shall apply to
statements in or omissions from the Registration Statement or Prospectus and Statement of
Additional Information made in reliance upon and in conformity with information furnished
by California Money Market Portfolio for use in the Registration Statement or Prospectus
and Statement of Additional Information as provided in Section 7(k).
| 7. |
REPRESENTATIONS AND WARRANTIES OF CALIFORNIA MONEY MARKET PORTFOLIO |
| (a) |
Organization, Existence, etc. California Money Market
Portfolio is a duly organized series of Xxxxxxx Tax-Free Reserves, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, and has power to carry on its business as it is now being
conducted. Currently, California Money Market Portfolio is not qualified to do
business as a foreign corporation under the laws of any jurisdiction. California
Money Market Portfolio has all necessary federal, state and local authorization
to own all of its properties and assets and to carry on its business as now
being conducted. |
| (b) |
Registration as Investment Company. Xxxxxxx Tax-Free
Reserves, of which the California Money Market Portfolio is a series, is
registered under the Act as an open-end management investment company. Its
registration has not been revoked or rescinded and is in full force and effect. |
| (c) |
Capitalization. California Money Market
Portfolio has an unlimited number of shares
of beneficial interest, no par value, of which as of August 31, 2003, [________]
shares were outstanding, and no shares were held in the treasury of California
Money Market Portfolio. All of the outstanding shares of California Money Market
Portfolio have been duly authorized and are validly issued, fully paid, and
non-assessable. Since California Money Market Portfolio is a series of an
open-end investment company engaged in the continuous offering and redemption of
its shares, the number of outstanding shares of California Money Market
Portfolio may change prior to the Effective Date of the Reorganization. |
| (d) |
Financial Statements. The financial statements of California Money
Market Portfolio for the year ended December 31, 2002, (“California Money
Market Portfolio Financial Statements”), to be delivered to Money Market
Portfolio, will fairly present the financial position of California Money Market
Portfolio as of December 31, 2002, and the results of its operations and changes
in its net assets for the year then ended. |
| (e) |
Authority Relative to the Plan. Xxxxxxx
Tax-Free Reserves has the power to enter into the Plan on behalf of California
Money Market Portfolio and to carry out its obligations under this Agreement.
The execution and delivery of the Plan and the consummation of the transactions
contemplated have been duly authorized by the Trustees of the Xxxxxxx Tax-Free
Reserves and, except for approval by the holders of its capital stock, no other
proceedings by Xxxxxxx Tax-Free Reserves are necessary to authorize its officers
to effectuate the Plan and the transactions contemplated. California Money
Market Portfolio is not a party to or obligated under any charter, by-law,
indenture, or contract provision or any other commitment or obligation, or
subject to any order or decree, which would be violated by its executing and
carrying out the Plan. |
| (f) |
Liabilities. There are no liabilities of California Money Market
Portfolio whether or not determined or determinable, other than liabilities
disclosed or provided for in California Money Market Portfolio Financial
Statements and liabilities incurred in the ordinary course of business
subsequent to December 31, 2002, or otherwise previously disclosed to Money
Market Portfolio, none of which has been materially adverse to the business,
assets, or results of operations of California Money Market Portfolio. |
| (g) |
Litigation. To the knowledge of California Money Market Portfolio there
are no claims, actions, suits, or proceedings, pending or threatened, which
would adversely affect California Money Market Portfolio or its assets or
business, or which would prevent or hinder consummation of the transactions
contemplated by this Agreement. |
| (h) |
Contracts. Except for contracts and agreements previously disclosed to
Money Market Portfolio under which no default exists, Xxxxxxx Tax-Free Reserves
on behalf of California Money Market Portfolio is not a party to or subject to
any material contract, debt instrument, plan, lease, franchise, license, or
permit of any kind or nature whatsoever. |
| (i) |
Taxes. The federal income tax returns of California Money Market
Portfolio have been filed for all taxable years up to and including the taxable
year ended December 31, 2002, and all taxes payable pursuant to such returns
have been paid. California Money Market Portfolio has qualified as a regulated
investment company under the Internal Revenue Code with respect to each past
taxable year of California Money Market Portfolio since commencement of its
operations. |
| (j) |
Portfolio Securities. All securities to be listed in the schedule of investments
of California Money Market Portfolio as of the Effective Time of the
Reorganization will be owned by Xxxxxxx Tax-Free Reserves on behalf of
California Money Market Portfolio free and clear of any liens, claims, charges,
options, and encumbrances, except as indicated in the schedule. Except as so
indicated, none of the securities is, or after the Reorganization as
contemplated by this Agreement will be, subject to any legal or contractual
restrictions on disposition (including restrictions as to the public offering or
sale of the securities under the Securities Act), and all the securities are or
will be readily marketable. |
| (k) |
Registration Statement. California Money Market Portfolio will cooperate with
Money Market Portfolio in connection with the Registration Statement referred to
in Section 6(i) of this Agreement, and will furnish to Money Market Portfolio
the information relating to California Money Market Portfolio required by the
Securities Act and its Regulations to be set forth in the Registration Statement
(including the Prospectus and Statement of Additional Information). At the time
the Registration Statement becomes effective, the Registration Statement,
insofar as it relates to California Money Market Portfolio: |
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(i) |
will comply in all material respects with the provisions of the Securities Act
and its Regulations, and |
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(ii) |
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. |
Further, at the time the Registration
Statement becomes effective, at the time of the shareholders’ meeting referred to in
Section 1 and at the Effective Time of the Reorganization, the Prospectus and Statement of
Additional Information, as amended or supplemented by any amendments or supplements filed
by Money Market Portfolio, insofar as they relate to California Money Market Portfolio,
will not contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the representations and warranties
in this subsection shall apply only to statements in or omissions from the Registration
Statement or Prospectus and Statement of Additional Information made in reliance upon and
in conformity with information furnished by California Money Market Portfolio for use in
the Registration Statement or Prospectus and Statement of Additional Information as
provided in this Section 7(k).
8.
CONDITIONS TO OBLIGATIONS OF MONEY MARKET PORTFOLIO
The obligations of Money Market
Portfolio under this Agreement with respect to the consummation of the Reorganization are
subject to the satisfaction of the following conditions:
| (a) |
Representations, Warranties, and Agreements. As of the Effective Time of the
Reorganization, California Money Market Portfolio shall have complied with each
of its obligations under this Agreement, each of the representations and
warranties contained in this Agreement shall be true in all material respects,
and there shall have been no material adverse change in the financial condition,
results of operations, business, properties or assets of California Money Market
Portfolio since December 31, 2002. Money Market Portfolio shall have received a
certificate from California Money Market Portfolio satisfactory in form and
substance to Money Market Portfolio indicating that it has met the terms stated
in this Section. |
| (b) |
Regulatory Approval. All necessary orders of exemption under the
Act with respect to the transactions contemplated by this Agreement shall have
been granted by the Commission, and all approvals, registrations, and exemptions
under state securities laws considered to be necessary shall have been obtained. |
Tax Opinion. Money
Market Portfolio shall have received the opinion of counsel, addressed to and in form and
substance satisfactory to Money Market Portfolio, as to certain of the federal income tax
consequences of the Reorganization under the Internal Revenue Code to California Money
Market Portfolio and the shareholders of California Money Market Portfolio. For purposes
of rendering its opinion, counsel may rely exclusively and without independent
verification, as to factual matters, on the statements made in the Plan, the proxy
statement which will be distributed to the shareholders of California Money Market
Portfolio in connection with the Reorganization, and on such other written representations
as California Money Market Portfolio and Money Market Portfolio, respectively, will have
verified as of the date of issuance of the tax opinion. The opinion of counsel will be to
the effect that, based on the facts and assumptions stated therein, for federal income tax
purposes:
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(i) |
neither California Money Market Portfolio nor Money Market Portfolio will
recognize any gain or loss upon the transfer of the assets of California Money
Market Portfolio to Money Market Portfolio in exchange for Money Market
Portfolio Shares and upon the distribution (whether actual or constructive) of
Money Market Portfolio Shares to the shareholders of California Money Market
Portfolio in exchange for their shares of capital stock of California Money
Market Portfolio; |
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(ii) |
the shareholders of California Money Market Portfolio who receive Money Market
Portfolio Shares pursuant to the Reorganization will not recognize any gain or
loss upon the exchange (whether actual or constructive) of their shares of
capital stock of California Money Market Portfolio for Money Market Portfolio
Shares (including any fractional share interests they are deemed to have
received) pursuant to the Reorganization; |
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(iii) |
the basis of Money Market Portfolio Shares received by California Money Market
Portfolio’s shareholders will be the same as the basis of the shares of
capital stock of California Money Market Portfolio surrendered in the exchange,
the holding period of Money Market Portfolio shares received by each shareholder
of California Money Market Portfolio will include the period during which the
shares of California Money Market Portfolio exchanged therefor were held by such
shareholder, provided the shares of California Money Market Portfolio were held
as a capital asset on the date of the Reorganization; and |
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(iv) |
the basis of California Money Market Portfolio’s assets acquired by Money
Market Portfolio will be the same as the basis of such assets to California
Money Market Portfolio immediately prior to the Reorganization, and the holding
period of the assets of California Money Market Portfolio in the hands of Money
Market Portfolio will include the period during which those assets were held by
California Money Market Portfolio. |
| (d) |
Opinion of Counsel. Money Market Portfolio shall have
received the opinion of counsel for California Money Market Portfolio, dated the
Effective Time of the Reorganization, addressed to and in form and substance
satisfactory to Money Market Portfolio, to the effect that: |
Xxxxxxx Tax-Free Reserves is an
open-end management company registered under the Securities Act of 1933 and the Investment
Company Act of 1940, and is duly organized and validly existing in good standing under the
laws of the Commonwealth of Massachusetts;
California Money Market Portfolio is
a series of Xxxxxxx Tax-Free Reserves; and
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(iii) |
The Agreement and Plan of Reorganization and the execution and filing of the
Plan have been duly authorized and approved by all requisite action by the Board
of Trustees of Xxxxxxx Tax-Free Reserves, and the Plan has been duly executed
and delivered by Xxxxxxx Tax-Free Reserves and, assuming due authorization,
execution, and delivery of the Plan by Xxxxxxx Tax-Free Reserves, is a valid and
binding obligation of Xxxxxxx Tax-Free Reserves and its series, California Money
Market Portfolio. |
9.
CONDITIONS TO OBLIGATIONS OF CALIFORNIA MONEY MARKET PORTFOLIO
The obligations of California Money
Market Portfolio under this Agreement with respect to the consummation of the
Reorganization are subject to the satisfaction of the following conditions:
| (a) |
Shareholder Approval. The Plan shall have been approved by the
affirmative vote of two thirds of all the votes entitled to be cast on the
matter; and if necessary, the requisite vote of the shareholders of the other
portfolios of Xxxxxxx Tax-Free Reserves. |
| (b) |
Representations, Warranties and, Agreements. As of
the Effective Time of the Reorganization, Money Market Portfolio shall have
complied with each of its responsibilities under this Agreement, each of the
representations and warranties contained in this Agreement shall be true in all
material respects, and there shall have been no material adverse change in the
financial condition, results of operations, business, properties, or assets of
Money Market Portfolio since December 31, 2002. As of the Effective Time of the
Reorganization, California Money Market Portfolio shall have received a
certificate from Money Market Portfolio satisfactory in form and substance to
California Money Market Portfolio indicating that it has met the terms stated in
this Section. |
| (c) |
Regulatory Approval. The Registration Statement referred to in
Section 6(i) shall have been declared effective by the Commission and no stop
orders under the Securities Act pertaining thereto shall have been issued; all
necessary orders of exemption under the Act with respect to the transactions
contemplated by this Agreement shall have been granted by the Commission; and
all approvals, registrations, and exemptions under federal and state laws
considered to be necessary shall have been obtained. |
| (d) |
Tax Opinion. California Money Market Portfolio shall have received
the opinion of counsel, addressed to and in form and substance satisfactory to
California Money Market Portfolio, as to certain of the federal income tax
consequences of the Reorganization under the Internal Revenue Code to Money
Market Portfolio and its shareholders. For purposes of rendering its opinion,
counsel may rely exclusively and without independent verification, as to factual
matters, on the statements made in the Plan, the proxy statement which will be
distributed to the shareholders of California Money Market Portfolio in
connection with the Reorganization, and on such other written representations as
California Money Market Portfolio and Money Market Portfolio, respectively, will
have verified as of the date of issuance of the tax opinion. The opinion of
counsel will be to the effect that, based on the facts and assumptions stated
therein, for federal income tax purposes: |
| |
(i) |
neither California Money Market Portfolio nor Money Market Portfolio will
recognize any gain or loss upon the transfer of the assets of California Money
Market Portfolio to Money Market Portfolio in exchange for Money Market
Portfolio Shares and upon the distribution (whether actual or constructive) of
Money Market Portfolio Shares to the shareholders of California Money Market
Portfolio in exchange for their shares of capital stock of California Money
Market Portfolio; |
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(ii) |
the shareholders of California Money Market Portfolio who receive Money Market
Portfolio Shares pursuant to the Reorganization will not recognize any gain or
loss upon the exchange (whether actual or constructive) of their shares of
capital stock of California Money Market Portfolio for Money Market Portfolio
Shares (including any fractional share interests they are deemed to have
received) pursuant to the Reorganization; |
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(iii) |
the basis of Money Market Portfolio Shares received by California Money Market
Portfolio’s shareholders will be the same as the basis of the shares of
capital stock of California Money Market Portfolio surrendered in the exchange,
and the holding period of Money Market Portfolio shares received by each
shareholder of California Money Market Portfolio will include the period during
which the shares of California Money Market Portfolio exchanged therefor were
held by such shareholder, provided the shares of California Money Market
Portfolio were held as a capital asset on the date of the Reorganization; and |
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(iv) |
the basis of California Money Market Portfolio assets acquired by Money Market
Portfolio will be the same as the basis of such assets to California Money
Market Portfolio immediately prior to the Reorganization, and the holding period
of the assets of California Money Market Portfolio in the hands of Money Market
Portfolio will include the period during which those assets were held by
California Money Market Portfolio. |
| (e) |
Opinion of Counsel. California Money Market Portfolio shall
have received the opinion of counsel for Money Market Portfolio, dated the
Effective Time of the Reorganization, addressed to and in form and substance
satisfactory to California Money Market Portfolio, to the effect that: |
Xxxxxxx Tax-Free Reserves is an
open-end management company registered under the Securities Act of 1933 and the Investment
Company Act of 1940, and is duly organized and validly existing in good standing under the
laws of the Commonwealth of Massachusetts;
Money Market Portfolio is a series of
Xxxxxxx Tax-Free Reserves;
| |
(iii) |
The Agreement and Plan of Reorganization and the execution and filing of the
Plan have been duly authorized and approved by all requisite action by the Board
of Trustees of Xxxxxxx Tax-Free Reserves, and the Plan has been duly executed
and delivered by Money Market Portfolio and, assuming due authorization,
execution, and delivery of the Plan by Xxxxxxx Tax-Free Reserves, is a valid and
binding obligation of Xxxxxxx Tax-Free Reserves and its series, Money Market
Portfolio; and |
Money Market Portfolio shares to be
issued pursuant to the Reorganization have been duly authorized and upon issuance thereof
in accordance with the Plan will be validly issued, fully paid and non-assessable shares
of beneficial interest of Money Market Portfolio.
| 10. |
AMENDMENTS, TERMINATIONS, NON-SURVIVAL OF COVENANTS, WARRANTIES AND
REPRESENTATIONS |
| (a) |
The parties hereto may, by agreement in writing authorized by the Board of
Trustees of each party, amend the Plan at any time before or after approval of
the Plan by shareholders of California Money Market Portfolio, but after such
approval, no amendment shall be made that substantially changes the terms of
this (a) Agreement. |
| (b) |
At any time prior to the Effective Time of the Reorganization, any of the
parties may by written instrument signed by it: (i) waive any inaccuracies in
the representations and warranties made pursuant to this Agreement, and (ii)
waive compliance with any of the covenants or conditions made for its benefit
pursuant to this Agreement. |
California Money Market Portfolio may
terminate the Plan at any time prior to the Effective Time of the Reorganization by notice
to Money Market Portfolio if: (i) a material condition to its performance under this
Agreement or a material covenant of Money Market Portfolio contained in this Agreement is
not fulfilled on or before the date specified for the fulfillment thereof, or (ii) a
material default or material breach of the Plan is made by Money Market Portfolio.
| (d) |
Money Market Portfolio may terminate the Plan at any time prior to the Effective
Time of the Reorganization by notice to California Money Market Portfolio if:
(i) a material condition to its performance under this Agreement or a material
covenant of California Money Market Portfolio contained in this Agreement is not
fulfilled on or before the date specified for the fulfillment thereof, or (ii) a
material default or material breach of the Plan is made by California Money
Market Portfolio. |
| (e) |
The Plan may be terminated by either party at any time prior to the Effective
Time of the Reorganization upon notice to the other party, whether before or
after approval by the shareholders of California Money Market Portfolio, without
liability on the part of either party hereto or its respective trustees,
officers, or shareholders, and shall be terminated without liability as of the
close of business on December 12, 2003, if the Effective Time of the
Reorganization is not on or prior to such date. |
| (f) |
No representations, warranties, or covenants in or pursuant to the Plan shall
survive the Reorganization. |
Each Portfolio will bear its own
expenses incurred in connection with this Reorganization.
12.
GENERAL
This Plan supersedes all prior
agreements between the parties (written or oral), is intended as a complete and exclusive
statement of the terms of the Plan between the parties and may not be changed or
terminated orally. The Plan may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when one or
more counterparts have been executed by each party and delivered to each of the parties
hereto. The headings contained in the Plan are for reference purposes only and shall not
affect in any way the meaning or interpretation of the Plan. Nothing in the Plan,
expressed or implied, is intended to confer upon any other person any rights or remedies
by reason of the Plan.
IN WITNESS WHEREOF,
California Money Market Portfolio and Money Market Portfolio have caused the Plan to be
executed on their behalf by their respective Chairman, President, or a Vice President,
and their seals to be affixed hereto and attested by their respective Secretary or
Assistant Secretary, all as of the day and year first above written, and to be delivered
as required.
(SEAL)
Attest:
By:______________________
|
XXXXXXX TAX-FREE RESERVES
on behalf of the CALIFORNIA MONEY
MARKET PORTFOLIO
By: ______________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
|
(SEAL)
By:_____________________
|
XXXXXXX TAX-FREE RESERVES
on behalf of the MONEY MARKET
PORTFOLIO
By: ______________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
|
