This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 28th day of June, 1999 by and between Nations Fund Portfolios, Inc. (the
"Company"), a Maryland corporation, for itself and on behalf of its Nations
Emerging Markets Fund, and Nations Institutional Reserves ("Reserves"), a
Massachusetts business trust, for itself and on behalf of its Nations Emerging
Markets Fund.
WHEREAS, the Company and Reserves are open-end management investment
companies registered with the Securities and Exchange Commission (the "SEC")
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the parties desire that the Fund Assets and Liabilities (as
defined below) of the Company's Nations Emerging Markets Fund (the "Acquired
Fund") be conveyed to and be acquired and assumed, respectively, by Reserves'
Nations Emerging Markets Fund (the "Acquiring Fund") in exchange for shares of
equal U.S. dollar value of the Acquiring Fund which shall thereafter promptly be
distributed to the shareholders of the Acquired Fund in connection with its
liquidation as described in this Agreement and set forth in Schedule A attached
hereto (the "Reorganization"); and
WHEREAS, the parties intend that the Reorganization qualify as a
"reorganization," within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that the Acquiring Funds and the
Acquired Funds will each be a "party to a reorganization," within the meaning of
Section 368(b) of the Code, with respect to the Reorganization.
NOW, THEREFORE, in accordance with the terms and conditions described
herein, the Acquired Funds and Acquiring Funds shall be consolidated as follows:
1. Conveyance of Fund Assets and Liabilities of the Acquired Funds.
(a)Except as provided below, at the Effective Time of the
Reorganization (as defined in Section 8) all assets of every kind,
and all interests, rights, privileges and powers of the Acquired
Funds (the "Fund Assets"), subject to all liabilities of the
Acquired Funds existing as of the Effective Time of the
Reorganization (the "Liabilities"), shall be transferred by each
Acquired Fund to each corresponding Acquiring Fund and shall be
accepted and assumed by such Acquiring Fund, as more particularly
set forth in this Agreement, such that at and after the Effective
Time of the Reorganization: (i) all Fund Assets of the Acquired
Funds shall become the assets of the Acquiring Funds; and (ii) all
Liabilities of the Acquired Funds shall attach to the Acquiring
Funds, enforceable against the Acquiring Funds to the same extent as
if originally incurred by it.
(b)It is understood and agreed that the Fund Assets shall include all
property and assets of any nature whatsoever, including, without
limitation, all cash, cash equivalents, securities, claims (whether
absolute or contingent, known or unknown, accrued or unaccrued) and
receivables (including dividend and interest receivables) owned or
exercisable by the Acquired Funds, and any deferred or prepaid
expenses shown as an asset on the Acquired Funds' books, that the
Liabilities of the Acquired Funds shall include all liabilities,
whether known or unknown, accrued or unaccrued, absolute or
contingent, in all cases, existing at the Effective Time of the
Reorganization.
(c)At least fifteen (15) business days prior to the Closing Date (as
defined in Section 8), the Acquired Funds will provide to, or cause
to be provided to, the Acquiring Funds, a schedule of its
securities, other assets and its known liabilities. It is understood
and agreed that the Acquired Funds may sell any of the securities or
other assets shown on such schedule prior to the Effective Time of
the Reorganization but will not, without the prior approval of the
Acquiring Funds, acquire any additional securities other than
securities that the Acquiring Funds is not permitted to purchase in
accordance with its stated investment objective and policies. At
least ten (10) business days prior to the Closing Date, the
Acquiring Funds will advise the Acquired Funds of any investments of
the Acquired Funds shown on such schedule that the Acquiring Funds
would not be permitted to hold, pursuant to its stated investment
objective and policies or otherwise. The Acquired Funds, if
requested by the Acquiring Funds, will dispose of any such
securities prior to the Closing Date to the extent practicable and
consistent with applicable legal requirements. In addition, if it is
determined that the investment portfolios of the Acquired Funds and
Acquiring Funds, when aggregated, would contain investments
exceeding certain percentage limitations applicable to the Acquiring
Funds, the Acquired Funds, if requested by the Acquiring Funds, will
dispose of a sufficient amount of such investments as may be
necessary to avoid violating such limitations as of the Effective
Time of the Reorganization.
(d)The Fund Assets shall be transferred and conveyed to the Acquiring
Funds on the following basis:
(1)In exchange for the transfer of the Fund Assets, the Acquiring
Funds shall simultaneously issue to the Acquired Funds at the
Effective Time of the Reorganization full and fractional Shares
of the Acquiring Funds, as set forth in Schedule A attached
hereto, having an aggregate net asset value equal to the net
value of the Fund Assets minus Liabilities so conveyed and
assumed, all determined in accordance with this Agreement. In
this regard, the number of full and fractional shares of the
Acquiring Funds delivered to the Acquired Funds shall be
determined by dividing the value of the Fund Assets minus
Liabilities, computed in the manner and as of the time and date
set forth in this Agreement, by the net asset value of one
Acquiring Funds share of such designated class, computed in the
manner and as of the time and date set forth in this Agreement.
(2)The net asset value of shares to be delivered by the Acquiring
Funds, and the net value of the Fund Assets minus Liabilities to
be conveyed by the Acquired Funds and assumed by the Acquiring
Funds, shall, in each case, be determined as of the Valuation
Time as defined in Section 3. The net asset value of Shares of
the Acquiring Funds shall be computed in accordance with its then
current valuation procedures. In determining the value of the
Fund Assets, each security to be included in the Fund Assets
shall be priced in accordance with the Acquiring Funds' then
current valuation procedures.
2. Liquidation of the Acquired Funds. At the Effective Time of the
Reorganization, the Acquired Funds shall make a liquidating
distribution to their shareholders as follows: Shareholders of record
of the Acquired Funds shall be credited with full and fractional shares
of the respective Shares that are issued by the Acquiring Funds in
connection with the Reorganization corresponding to the Acquired Funds
shares that are held of record by the shareholder at the Effective Time
of the Reorganization. Each such shareholder also shall have the right
to receive any unpaid dividends or other distributions which were
declared before the Effective Time of the Reorganization with respect
to the Acquired Funds shares that are held of record by the shareholder
at the Effective Time of the Reorganization, and Reserves shall record
on its books the ownership of the respective Acquiring Funds shares by
such shareholders (the "Transferor Record Holders"). All of the issued
and outstanding shares of the Acquired Funds at the Effective Time of
the Reorganization shall be redeemed and canceled on the books of
Reserves at such time. As soon as reasonably possible after the
Effective Time of the Reorganization, the Company shall wind up the
affairs of the Acquired Funds and shall file any final regulatory
reports, including but not limited to any Form N-SAR and Rule 24f-2
filings, with respect to the Acquired Funds, and also shall take all
other steps as are necessary and proper to effect the termination or
declassification of the Acquired Funds in accordance with all
applicable laws.
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3. Valuation Time. The "Valuation Time" shall be the time as of which the
net asset value of each class of shares of each of the Acquired Funds
and the Acquiring Funds is determined pursuant to their respective
valuation procedures on the Closing Date or such earlier or later time
as may be mutually agreed to in writing by the parties hereto.
4. Certain Representations, Warranties and Agreements of the Company on
behalf of its Acquired Funds. The Company, on behalf of itself and,
where appropriate, its Acquired Funds, represents and warrants to, and
agrees with, Reserves on behalf of the corresponding Acquiring Funds as
follows, with such representations, warranties and agreements made on
behalf of the Acquired Funds on a several (and not joint, or joint and
several) basis:
(a) The Company is a business trust, duly created, validly existing and
in good standing under the laws of the state of Maryland. The
Company is registered with the SEC as an open-end management
investment company under the 1940 Act, and such registration is in
full force and effect.
(b) The Company has the power to own all of its properties and assets
and to consummate the transactions contemplated herein, and has all
necessary federal, state and local authorizations to carry on its
business as now being conducted and to consummate the transactions
contemplated by this Agreement.
(c) This Agreement has been duly authorized by the Board of Trustees of
the Company on behalf of its Acquiring Funds, and has been executed
and delivered by duly authorized officers of the Company, and
represents a valid and binding contract, enforceable in accordance
with its terms, subject as to enforcement to bankruptcy,
insolvency, reorganization, arrangement, moratorium, and other
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The execution
and delivery of this Agreement does not, and, subject to the
approval of shareholders referred to in Section 6, the consummation
of the transactions contemplated by this Agreement will not,
violate the Articles of Incorporation or the By-Laws of the
Company, or any material agreement or arrangement to which the
Company is a party or by which it is bound.
(d) The Company's Acquired Funds have elected to qualify and have
qualified as regulated investment companies under Part I of
Subchapter M of Subtitle A, Chapter 1, of the Code, as of and since
their first taxable year; have been regulated investment companies
under such Part of the Code at all times since the end of their
first taxable year when they so qualified; and qualify and shall
continue to qualify as regulated investment companies for their
taxable year ending upon its liquidation.
(e) The Company has valued, and will continue to value, the portfolio
securities and other assets of its Acquired Funds in accordance
with applicable legal requirements.
(f) The proxy statement and form of proxy (the "Proxy Statement") from
its effective date with the SEC, through the time of the
shareholders meeting referred to in Section 6 and the Effective
Time of the Reorganization, insofar as they relate to the Company,
(i) shall comply in all material respects with the provisions of
the Securities Exchange Act of 1934 as amended (the "1934 Act") and
the 1940 Act, the rules and regulations thereunder, and state
securities laws, and (ii) shall not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein not
misleading.
(g) All of the issued and outstanding shares of the Company's Acquired
Funds have been validly issued and are fully paid and
non-assessable, and were offered for sale and sold in conformity
with the registration requirements of all applicable federal and
state securities laws.
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(h) The Company shall operate the business of its Acquired Funds in the
ordinary course between the date hereof and the Effective Time of
the Reorganization, it being agreed that such ordinary course of
business will include the declaration and payment of customary
dividends and distributions and any other dividends and
distributions deemed advisable in anticipation of the
Reorganization. Notwithstanding anything herein to the contrary,
the Company may take all appropriate action necessary in order for
the Company to receive the opinion provided for in Sections 9(e)
and 10(g).
(i) At the Effective Time of the Reorganization, the Company's Acquired
Funds will have good and marketable title to the Fund Assets and
full right, power and authority to assign, deliver and otherwise
transfer such assets.
(j) At the Effective Time of the Reorganization, all federal and other
tax returns and reports of the Acquired Funds required by law to
have been filed by such time shall have been filed, and all federal
and other taxes shall have been paid so far as due, or provision
shall have been made for the payment thereof and, to the best
knowledge of management of the Company, no such return or report
shall be currently under audit and no assessment shall have been
asserted with respect to such returns or reports.
5. Certain Representations, Warranties and Agreements of Reserves on
behalf of the Acquiring Funds. Reserves, on behalf of itself and
where appropriate, the Acquiring Funds, represents and warrants to,
and agrees with each of the Company on behalf of the Acquired Funds
as follows, with such representations, warranties and agreements
made on behalf of the Acquiring Funds on a several (and not joint,
or joint and several) basis:
(a) Reserves is a business trust duly created, validly existing and in
good standing under the laws of the Commonwealth or Massachusetts
and is registered with the SEC as an open-end management investment
company under the 1940 Act and such registration is in full force
and effect.
(b) Reserves has the power to own all of its properties and assets and
to consummate the transactions contemplated herein, and has all
necessary federal, state and local authorizations to carry on its
business as now being conducted and to consummate the transactions
contemplated by this Agreement.
(c) This Agreement has been duly authorized by the Board of Trustees of
Reserves on behalf of the Acquiring Funds, and executed and
delivered by duly authorized officers of Reserves, and represents a
valid and binding contract, enforceable in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles. The execution and delivery of
this Agreement does not, and the consummation of the transactions
contemplated by this Agreement will not, violate the Declaration of
Trust or By-Laws of Reserves or any material agreement or
arrangement to which it is a party or by which it is bound.
(d) The Acquiring Funds has elected to qualify and has qualified as a
regulated investment company under Part I of Subchapter M of
Subtitle A, Chapter 1, of the Code, as of and since its first
taxable year; has been a regulated investment company under such
Part of the Code at all times since the end of its first taxable
year when it so qualified; and qualifies and shall continue to
qualify as a regulated investment company for its current taxable
year.
(e) Reserves has valued, and will continue to value, the portfolio
securities and other assets of the Acquiring Funds in accordance
with applicable legal requirements.
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(f) The Proxy Statement, from its effective date with the SEC through
the time of the shareholders meeting referred to in Section 6 and
at the Effective Time of the Reorganization, insofar as it relates
to Reserves, or the Acquiring Funds, or the Primary A Shares,
Primary B Shares, Investor A Shares, Investor B Shares or Investor
C Shares of the Acquiring Funds to be issued pursuant thereto (i)
shall comply in all material respects with the provisions of the
Securities Act of 1933, as amended, (the "1933 Act"), the 1934 Act
and the 1940 Act, the rules and regulations thereunder, and state
securities laws, and (ii) shall not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein not
misleading.
(g) The shares of the Acquiring Funds to be issued and delivered to the
Acquired Funds for the account of the shareholders of the Acquired
Funds, pursuant to the terms hereof, shall have been duly
authorized as of the Effective Time of the Reorganization and, when
so issued and delivered, shall be duly and validly issued, fully
paid and non-assessable, and no shareholder of the Acquiring Funds
shall have any preemptive right of subscription or purchase in
respect thereto.
(h) All of the issued and outstanding shares of the Acquiring Funds
have been validly issued and are fully paid and non-assessable, and
were offered for sale and sold in conformity with the registration
requirements of all applicable federal and state securities laws.
(i) Reserves shall operate the business of the Acquiring Funds in the
ordinary course between the date hereof and the Effective Time of
the Reorganization, except that Reserves shall complete all
measures in respect of the Acquiring Funds prior to the Effective
Time of the Reorganization to ensure that the Reorganization does
not qualify as a "reorganization" within the meaning of Section 368
of the Code, regardless of whether such measures are in the
ordinary course. It is understood that such ordinary course of
business will include the declaration and payment of customary
dividends and distributions and any other dividends and
distributions deemed advisable in anticipation of the
Reorganization.
(j) At the Effective Time of the Reorganization, all federal and other
tax returns and reports of the Acquiring Funds required by law to
have been filed by such time shall have been filed, and all federal
and other taxes shall have been paid so far as due, or provision
shall have been made for the payment thereof and, to the best
knowledge of management of Reserves, no such return or report shall
be currently under audit and no assessment shall have been asserted
with respect to such returns or reports.
7. Shareholder Action. As soon as practicable after the effective date of
the Proxy Statement each the Company shall hold a meeting(s) of the
shareholders of the Acquired Funds for the purpose of considering and
voting upon:
(a) approval of this Agreement and the Reorganization contemplated
hereby; and
(b) such other matters as may be determined by the Board of Trustees of
the Company.
8. Regulatory Filings. As soon as practicable, the Company shall file a
Proxy Statement with the SEC, and, where required, with appropriate
state securities regulatory authorities.
9. Closing Date, Effective Time of the Reorganization. The "Closing Date"
shall be August 20, 1999, or such earlier or later date as may be
mutually agreed in writing by the parties hereto. Delivery of the Fund
Assets and the shares of the Acquiring Funds to be issued pursuant to
Section 1 and the liquidation of the Acquired Funds pursuant to Section
2 shall occur on the day following the Closing Date, whether or not
such day is a business day, or on such other date, and at such place
and time, as may be mutually agreed in writing, by the parties hereto.
5
The date and time at which such actions are taken are referred to
herein as the "Effective Time of the Reorganization." To the extent any
Fund Assets are, for any reason, not transferred at the Effective Time
of the Reorganization, the Company shall cause such Fund Assets to be
transferred in accordance with this Agreement at the earliest
practicable date thereafter.
10.Conditions to the Company's Obligations on Behalf of its Acquired
Funds. The obligations of the Company hereunder shall be subject to the
following conditions precedent:
(a) This Agreement and the Reorganization shall have been approved by
the Board of Trustees of the Company and by a majority of the
shareholders of its Acquired Funds in the manner required by
applicable law and this Agreement.
(b) All representations and warranties of the Company made in this
Agreement shall be true and correct in all material respects as if
made at and as of the Valuation Time and the Effective Time of the
Reorganization.
(c) The Company shall have delivered a certificate executed in its name
by its President or Vice President and its Treasurer or Assistant
Treasurer, in a form reasonably satisfactory and dated as of the
Closing Date, to the effect that the representations and warranties
of the Acquiring Funds made in this Agreement are true and correct
at and as of the Valuation Time and that, to the best of its
knowledge, the Fund Assets include only assets which the Company's
Acquiring Funds may properly acquire under its investment
objectives, policies and limitations and may otherwise be lawfully
acquired by such Acquiring Funds.
(d) The Company shall have received an opinion of Xxxxxxxx & Xxxxxxxx
LLP, as counsel to the Company in form reasonably satisfactory to
Reserves and dated the Closing Date, substantially to the effect
that (i) the Company is a corporation duly established and validly
existing under the laws of the state of Maryland; (ii) the shares
of the corresponding Acquiring Funds to be delivered to the
Company's Acquired Funds as provided for by this Agreement are duly
authorized and upon delivery will be validly issued, fully paid and
non-assessable by the Company; (iii) this Agreement has been duly
authorized, executed and delivered by the Company, and represents a
legal, valid and binding contract, enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and similar laws relating to or
affecting creditors' rights generally and court decisions with
respect thereto, and such counsel shall express no opinion with
respect to the application of equitable principles in any
proceeding whether at law or in equity; (iv) the execution and
delivery of this Agreement did not, and the consummation of the
transactions contemplated by this Agreement will not, violate the
Articles of Incorporation or the By-Laws of the Company or any
material contract known to such counsel to which the Company is a
party or by which it is bound; and (v) no consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been obtained
under the 1933 Act, the 1934 Act, the 1940 Act, the rules and
regulations under those Acts and such as may be required by state
securities laws or such as may be required subsequent to the
Effective Time of the Reorganization. Such opinion may rely on the
opinion of other counsel to the extent set forth in such opinion,
provided such other counsel is reasonably acceptable to Reserves.
(e) The Company shall have received an opinion of Xxxxxxxx & Xxxxxxxx
LLP, based upon reasonable representations made in certificates
provided by the Company, its affiliates and/or principal
shareholders of the Company's Acquired Funds and/or the
corresponding Acquiring Funds, addressed to the Company in a form
reasonably satisfactory to them, and dated the Closing Date, with
respect to the matters specified in Subsection 11(g).
6
(f) The Company shall have received (i) a memorandum addressed to the
Company, in a form reasonably satisfactory to them, prepared by
Xxxxxxxx & Xxxxxxxx LLP, or another person approved by the parties,
concerning the registration of shares to be issued by Company
pursuant to this Agreement under applicable state securities laws
or the exemption from registration under such laws, and (ii)
assurance reasonably satisfactory to it that all permits and other
authorizations necessary under state securities laws to consummate
the transactions contemplated by this Agreement have been obtained.
(g) The Proxy Statement shall have become effective under the 1933 Act
and no stop order suspending the effectiveness shall have been
instituted, or to the knowledge of the Company, contemplated by the
SEC.
(h) No action, suit or other proceeding shall be threatened or pending
before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in
connection with, this Agreement or the transactions contemplated
herein.
(i) The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking
to enjoin consummation of the transactions contemplated by this
Agreement under Section 25(c) of the 1940 Act.
(j) The Company on behalf of the Acquired Funds shall have performed
and complied in all material respects with each of its agreements
and covenants required by this Agreement to be performed or
complied with by it prior to or at the Valuation Time and the
Effective Time of the Reorganization.
(k) The Company shall have received a duly executed instrument whereby
the corresponding Acquiring Funds assume all of the liabilities of
the Company's Acquired Funds.
11.Conditions to Reserves's Obligations on behalf of the Acquiring Funds.
The obligations of Reserves hereunder shall be subject to the following
conditions precedent:
(a) This Agreement and the Reorganization shall have been approved by
the Board of Trustees of Reserves on behalf of the Acquiring Funds
and by a majority of the shareholders of the Acquired Funds in the
manner required by applicable law and this Agreement.
(b) Reserves shall have delivered to the Company a statement of assets
and liabilities of the Acquired Funds, showing the tax costs of
such securities by lot and the holding periods of such securities,
as of the Valuation Time, certified by the Treasurer or Assistant
Treasurer of Reserves as having been prepared in accordance with
generally accepted accounting principles consistently applied.
(c) Reserves shall have duly executed and delivered to the Company such
bills of sale, assignments, certificates and other instruments of
transfer ("Transfer Documents") as the Company may deem necessary
or desirable to transfer all of the Acquired Funds' right, title
and interest in and to the Fund Assets.
(d) All representations and warranties of Reserves made in this
Agreement shall be true and correct in all material respects as if
made at and as of the Valuation Time and the Effective Time of the
Reorganization.
(e) Reserves shall have delivered a certificate executed in its name by
its President or Vice President and its Treasurer or Assistant
Treasurer, in a form reasonably satisfactory to each of the Company
and dated as of the Closing Date, to the effect that the
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representations and warranties of the Acquired Funds made in this
Agreement are true and correct at and as of the Valuation Time.
(f) Reserves shall have received an opinion of Xxxxxxxx & Xxxxxxxx LLP,
as counsel to Reserves, in a form reasonably satisfactory to the
Company and dated the Closing Date, substantially to the effect
that (i) Reserves is a business trust duly established and validly
existing under the laws of the Commonwealth of Massachusetts; (ii)
this Agreement has been duly authorized, executed and delivered by
Reserves and represents a legal, valid and binding contract,
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, and such counsel shall
express no opinion with respect to the application of equitable
principles in any proceeding, whether at law or in equity; (iii)
the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated by this Agreement
will not, violate the Declaration of Trust or By-Laws of Reserves
or any material contract known to such counsel to which Reserves is
a party or by which it is bound; and (iv) no consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by Reserves of the transactions
contemplated by this Agreement, except such as have been obtained
under the 1933 Act, the 1934 Act, the 1940 Act, the rules and
regulations under those Acts and such as may be required under the
state securities laws or such as may be required subsequent to the
Effective Time of the Reorganization. Such opinion may rely on the
opinion of other counsel to the extent set forth in such opinion,
provided such other counsel is reasonably acceptable to Reserves.
(g) Reserves shall have received an opinion of Xxxxxxxx & Xxxxxxxx LLP,
based upon reasonable representations made in certificates provided
by Reserves, its affiliates and/or principal shareholders of the
Acquired Funds and/or the Acquiring Funds, addressed to Reserves in
a form reasonably satisfactory to the Company, and dated the
Closing Date, substantially to the effect that, for federal income
tax purposes, the Reorganization will qualify as a
"reorganization," within the meaning of Section 368(a) of the Code,
and the Acquired Funds and the Acquiring Funds will each be a
"party to a reorganization," within the meaning of Section 368(b)
of the Code, with respect to the Reorganization.
(h) The Fund Assets to be transferred to the Acquiring Funds under this
Agreement shall include no assets which the Acquiring Funds may not
properly acquire pursuant to its investment objectives, policies or
restrictions or may not otherwise lawfully acquire.
(i) The Proxy Statement shall have become effective under the 1933 Act
and no stop order suspending such effectiveness shall have been
instituted or, to the knowledge of Reserves, contemplated by the
SEC.
(j) No action, suit or other proceeding shall be threatened or pending
before any court or governmental agency in which it is sought to
restrain or prohibit or obtain damages or other relief in
connection with this Agreement or the transactions contemplated
herein.
(k) The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking
to enjoin consummation of the transactions contemplated by this
Agreement under Section 25(c) of the 1940 Act.
(l) Reserves on behalf of the Acquiring Funds shall have performed and
complied in all material respects with each of its agreements and
covenants required by this Agreement to be performed or complied
with by it prior to or at the Valuation Time and the Effective Time
of the Reorganization.
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12.Survival of Representations and Warranties. The representations and
warranties of Reserves on behalf of the Acquiring Funds set forth in
this Agreement shall survive the delivery of the Fund Assets to the
Acquiring Funds and the issuance of the shares of the Acquiring Funds
at the Effective Time of the Reorganization.
13.Termination of Agreement. This Agreement may be terminated by a party
at or, in the case of Subsection 12(c), below, at any time prior to,
the Effective Time of the Reorganization by a vote of a majority of its
Board members as provided below:
(a) By Reserves on behalf of the Acquiring Funds if the conditions set
forth in Section 10 are not satisfied as specified in said Section;
(b) By the Company on behalf of its Acquired Funds if the conditions
set forth in Section 11 are not satisfied as specified in said
Section;
(c) By mutual written consent of Reserves and the Company.
14.Governing Law. This Agreement and the transactions contemplated hereby
shall be governed, construed and enforced in accordance with the laws
of the State of Maryland, except to the extent preempted by federal
law.
15. Brokerage Fees and Expenses.
(a) Reserves represents and warrants that there are no brokers or
finders entitled to receive any payments in connection with the
transactions provided for herein.
(b) The Company and Reserves will be each be responsible, on a pro rata
basis, for the expenses related to entering into and carrying out
the provisions of this Agreement, whether or not the transactions
contemplated hereby are consummated.
16. Amendments
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of
the Company, acting on behalf of its Acquired Funds or Reserves, acting
on behalf of the Acquiring Funds; provided, however, that following the
meetings of the shareholders of the Acquired Funds, no such amendment
may have the effect of changing the provisions for determining the
number of shares of the Acquiring Funds to be issued to the Transferor
Record Holders under this Agreement to the detriment of such Transferor
Record Holders, or otherwise materially and adversely affecting the
Acquired Funds, without the Acquired Funds obtaining its shareholders'
further approval.
At any time prior to or (to the fullest extent permitted by law) after
approval of this Agreement by the shareholders of the Acquired Funds,
the Company on behalf of its Acquired Funds, may waive any breach by
Reserves, on behalf of the Acquiring Funds, or the failure to satisfy
any of the conditions to its obligations (such waiver to be in writing
and signed by an officer of such registered investment companies).
At any time prior to or (to the fullest extent permitted by law) after
approval of this Agreement by the shareholders of the Acquired Funds,
Reserves, on behalf of the Acquiring Funds, may waive any breach by the
Company on behalf of its Acquired Funds, or the failure to satisfy any
of the conditions to either of their obligations (such waiver to be in
writing and signed by an officer of such registered investment
companies).
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17. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers designated below as of the date first
written above.
NATIONS FUND, INC.
On behalf of its Acquired Funds identified
on Schedule A
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx.
Secretary and Treasurer
NATIONS INSTITUTIONAL RESERVES
On behalf of its Acquiring Funds identified
on Schedule A
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx.
Secretary and Treasurer
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SCHEDULE A
SHAREHOLDERS OWNING SHARES WOULD RECEIVE SHARES OF
OF THE FOLLOWING COMPANY'S THE FOLLOWING RESERVES
ACQUIRED FUNDS AND CLASSES: ACQUIRING FUNDS AND CLASSES:
Nations International Equity Fund Nations International Equity Fund
Primary A Shares Company Shares
Primary B Shares Investor Shares
Investor A Shares Market Shares
Investor B Shares Investor Shares
Investor C Shares Investor Shares
Nations International Value Fund Nations International Value Fund
Primary A Shares Company Shares
Primary B Shares Investor Shares
Investor A Shares Market Shares
Investor B Shares Investor Shares
Investor C Shares Investor Shares
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