EXHIBIT A
FORM OF
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Plan") is adopted by The
Tocqueville Trust, a Massachusetts business trust (the "Trust"), on behalf of
two of its portfolios, The Tocqueville Asia-Pacific Fund (the "Asia-Pacific
Fund") and The Tocqueville International Value Fund (the "International Value
Fund") as of ________, 1997. (The Asia-Pacific Fund and International Value Fund
are sometimes referred to as a "Fund" and together as the "Funds.")
W I T N E S S E T H :
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WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, this Plan is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 368(a)(1)(C) of the
Internal Revenue Code of 1986, as amended, such reorganization to consist of the
transfer of all of the assets of the Asia-Pacific Fund in exchange for shares of
beneficial interest, no par value, of the International Value Fund
("International Value Fund Shares"), the assumption by the International Value
Fund of the liabilities of the Asia-Pacific Fund, and the distribution, after
the Closing (as defined in Section 5) of International Value Fund Shares to the
shareholders of the Asia-Pacific Fund in liquidation of the Asia-Pacific Fund,
all upon the terms and conditions hereinafter set forth in this Plan; and
WHEREAS, the Board of Trustees of the Trust, including a majority of the
Trustees who are not interested persons of the Trust, within the meaning of the
1940 Act, has determined with regard to each Fund that participating in the
transactions contemplated by this Plan is in the best interests of the Funds and
that the interests of shareholders of the Funds will not be diluted as a result
of such transactions.
NOW, THEREFORE, the Board of Trustees of the Trust hereby adopts and
declares the following Plan:
1. TRANSFER OF ASSETS. Subject to the terms and conditions set forth
herein, at the Closing the Trust shall transfer all of the assets of the
Asia-Pacific Fund to the International Value Fund, and in consideration
therefor, the International Value Fund shall assume all of the Liabilities (as
defined herein), and issue to the Trust, on behalf of the Asia-Pacific Fund,
International Value Fund Shares (the "New Shares") having an aggregate net asset
value equal to the value of the assets of the Asia-Pacific Fund transferred less
the Liabilities assumed. "Liabilities" shall mean the liabilities and
obligations reflected in an unaudited statement of assets and liabilities of the
Asia-Pacific Fund as of the close of business on the Valuation Date (as
hereinafter defined), determined in accordance with
generally accepted accounting principles consistently applied from the
Asia-Pacific Fund's most recently completed audit period. The net asset value of
the New Shares and the value of the net assets of the Asia-Pacific Fund to be
transferred shall be determined as of the close of regular trading on the New
York Stock Exchange on the business day next preceding the Closing (the
"Valuation Date") using the valuation procedures set forth in the then current
prospectus and statement of additional information of the International Value
Fund.
The International Value Fund shall assume only the Liabilities, and no
other liabilities or obligations, whether absolute or contingent, known or
unknown, accrued or unaccrued. All Liabilities that exist at or after the
Closing shall, after the Closing, attach to the International Value Fund and may
be enforced against the International Value Fund to the same extent as if the
same had been incurred by the International Value Fund.
2. LIQUIDATION OF THE ASIA-PACIFIC FUND. Upon the consummation of the
transactions referred to in Section 1, the New Shares will be issued to the
Trust, to be credited to the accounts of shareholders of record of the
Asia-Pacific Fund at the close of business on the Valuation Date. At or as soon
as practicable after the Closing, the New Shares will be distributed to such
shareholders in exchange for and in liquidation and cancellation of the shares
of the Asia-Pacific Fund, each such shareholder to receive the number of New
Shares that is equal in dollar amount to the value of shares of beneficial
interest of the Asia-Pacific Fund held by such shareholder as of the close of
business on the Valuation Date. Such distribution will be accomplished by the
establishment of an open account on the share records of the International Value
Fund in the name of each shareholder of the Asia-Pacific Fund and representing
the respective number of New Shares due such shareholder. For these purposes,
the shareholders of record of the Asia-Pacific Fund as of the close of business
on the Valuation Date shall be certified by the transfer agent of the Trust.
The Trust shall file on behalf of the Asia-Pacific Fund such instruments of
dissolution, if any, as are necessary to effect the dissolution of the
Asia-Pacific Fund and shall take all other steps necessary to effect a complete
liquidation and dissolution of the Asia-Pacific Fund.
3. REPRESENTATIONS AND WARRANTIES.
(a) The Trust, on behalf of the Asia-Pacific Fund and International Value
Fund, hereby represents and warrants to the International Value Fund and
Asia-Pacific Fund as follows:
(i) the Trust is duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts and has full power and
authority to conduct its business as presently conducted;
(ii) the Trust has full power and authority to execute, deliver and
carry out the terms of this Plan on behalf of the Asia-Pacific Fund and
International Value Fund;
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(iii) the execution and delivery of this Plan on behalf of the
Asia-Pacific Fund and International Value Fund and the consummation of the
transactions contemplated hereby are duly authorized and no other proceedings on
the part of the Trust, the shareholders of the International Value Fund, or the
shareholders of the Asia-Pacific Fund (other than as contemplated in Section
4(f)) are necessary to authorize this Plan and the transactions contemplated
hereby;
(iv) this Plan has been duly executed by the Trust on behalf of the
Asia-Pacific Fund and the International Value Fund and constitutes its valid and
binding obligation, enforceable in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium and other rights
affecting creditors' rights generally, and general equitable principles;
(v) neither the execution and delivery of this Plan by the Trust on
behalf of the Asia-Pacific Fund or the International Value Fund, nor the
consummation by the Trust on behalf of the Asia-Pacific Fund or the
International Value Fund of the transactions contemplated hereby will conflict
with, result in a breach or violation of, or constitute (or with notice, lapse
of time or both constitute) a breach of or default under, the Declaration of
Trust or By-Laws of the Trust, or any statute, regulation, order, judgment or
decree, or any instrument, contract or other agreement to which the Trust is a
party or by which the Trust or any of its assets is subject or bound; and
(vi) no authorization, consent or approval of any governmental or other
public body or authority or any other party is necessary for the execution and
delivery of this Plan by the Trust on behalf of the Asia-Pacific Fund and the
International Value Fund or the consummation of any transactions contemplated
hereby, other than as shall be obtained at or prior to the closing.
4. CONDITIONS PRECEDENT. The obligations herein of the Trust to effectuate
the Plan shall be subject to the satisfaction of the following conditions:
(a) At or immediately prior to the Closing, the Trust shall have declared
and paid a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to the shareholders of the
Asia-Pacific Fund all of the Fund's investment company taxable income for
taxable years ending at or prior to the Closing (computed without regard to
any deduction for dividends paid) and all of its net capital gain, if any,
realized in taxable years ending at or prior to the closing (after
reduction for any capital loss carry-forward);
(b) Such authority and orders from the Securities and Exchange Commission
(the "Commission") and state securities commissions as may be necessary to
permit the Trust to carry out the transactions contemplated by this Plan
shall have been received;
(c) A registration statement of the Trust on Form N-14 under the Securities
Act of 1933, as amended (the "Securities Act"), and such amendment or
amendments thereto as are determined by the Board of Trustees of the Trust
to be necessary and
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appropriate to effect such registration of the New Shares (the
"Registration Statement"), shall have been filed with the Commission and
shall have become effective, and no stop-order suspending the effectiveness
of such Registration Statement shall have been issued, and no proceeding
for that purpose shall have been initiated or threatened by the Commission
(unless withdrawn or terminated);
(d) The New Shares shall have been duly qualified for offering to the
public in all states in which such qualification required for consummation
of the transactions contemplated hereunder.
(e) The Board of Trustees of the Trust shall have received a legal opinion
from outside counsel, in form and substance reasonably satisfactory to the
Board of Trustees of the Trust, as to tax and corporate matters related to
this Plan, including, without limitation, that the proposed reorganization
will not result in any taxable gain or loss to the Asia-Pacific Fund or its
shareholders; and
(f) This Plan and the proposed reorganization contemplated hereby shall
have been approved by shareholders of the Asia-Pacific Fund in accordance
with the 1940 Act, at a meeting of shareholders of the Asia-Pacific Fund to
be duly called for such purpose.
5. CLOSING. The Closing shall be held at the offices of the Trust and shall
occur as of the commencement of business on (a) _______, 1997, or (b) if all
regulatory or shareholder approvals shall not have been received by such date,
then on the first Monday following receipt of all necessary regulatory approvals
and the final adjourned meeting of shareholders of the Asia-Pacific Fund at
which this Plan is considered and approved, or (c) such later time as the Trust
may determine, giving consideration to the best interests of the Funds. All acts
taking place at the Closing shall deemed to take place simultaneously unless
otherwise provided.
6. EXPENSES. The expenses of the transactions contemplated by this Plan
shall be borne by the Funds in proportion to their respective net assets, valued
at the Closing, whether or not the transactions contemplated hereby are
consummated.
7. TERMINATION. This Plan and the transactions contemplated hereby may be
terminated and abandoned by resolution of the Board of Trustees of the Trust, at
any time prior to the Closing, if circumstances should develop that, in the
opinion of the Board, in its sole discretion, make proceeding with this Plan
inadvisable for either Fund. In the event of any such termination, there shall
be no liability for damages on the part of either Fund, or its agent or
officers, to the other Fund, or its agents or officers.
8. AMENDMENTS. This Plan may be amended, waived or supplemented in such
manner as may be mutually agreed upon in writing by the authorized officers of
the Trust with respect to either Fund; provided, however, that following the
meeting of the Asia-Pacific Fund shareholders called by the Trust pursuant to
Section 4(f) of this Plan, no such amendment, waiver or supplement may have the
effect of changing the provisions for
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determining the amount of International Value Fund Shares to be issued to the
Asia-Pacific Fund shareholders under this Plan, or otherwise to the detriment of
such shareholders, without their further approval.
9. GOVERNING LAW. This Plan shall be governed and construed in accordance
with the laws of Massachusetts, without giving effect to the conflicts of laws
provisions thereof.
10. FURTHER ASSURANCES. The Trust, with respect to the Asia-Pacific Fund
and the International Value Fund, shall take such further action, prior to, at,
and after the Closing, as may be necessary or desirable and proper to consummate
the transactions contemplated hereby.
IN WITNESS WHEREOF, the Board of Trustees of the Trust has caused this Plan
to be executed on behalf of each Fund as of the date first set forth above by
their duly authorized representatives.
THE TOCQUEVILLE TRUST
on behalf of The Tocqueville Asia-Pacific Fund
Attest:
By:______________________________
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THE TOCQUEVILLE TRUST
on behalf of The Tocqueville International Value
Fund
Attest:
By:___________________________
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