EXHIBIT 99.4
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 10th day of September, 2002, by and between ABN AMRO Funds, a Delaware
business trust (the "Trust") on behalf of the ABN AMRO/Chicago Capital Growth
Fund and ABN AMRO/TAMRO Small Cap Fund (each an "Acquiring Fund" and, together,
the "Acquiring Funds"), and ABN AMRO Growth Fund and ABN AMRO Small Cap Fund
(each a "Selling Fund" and, together the "Selling Funds" and, collectively with
the Acquiring Funds, the "Funds").
This Agreement is intended to be, and is adopted as, a Plan of
Reorganization within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal
Revenue Code of 1986, as amended (the "Code") and the Treasury Regulations
promulgated thereunder. The reorganization will consist of: (i) the transfer of
all of the assets of each Selling Fund in exchange for Class N voting shares of
beneficial interest, no par value per share, of its corresponding Acquiring Fund
("Acquiring Fund Shares") as set forth on Schedule A attached hereto; (ii) the
assumption by each Acquiring Fund of the liabilities of each Selling Fund; and
(iii) the distribution of the Acquiring Fund Shares to the shareholders of each
Selling Fund and the liquidation of each Selling Fund as provided herein, all
upon the terms and conditions set forth in this Agreement (the
"Reorganization").
WHEREAS, each Fund is a separate series of the Trust, and the Trust is an
open-end, management investment company registered under the Investment Company
Act of 1940 (the "1940 Act");
WHEREAS, the Board of Trustees of the Trust has determined that the
Reorganization, with respect to each Acquiring Fund, is in the best interests of
each Acquiring Fund and that the interests of the existing shareholders of the
Acquiring Fund will not be diluted as a result of the Reorganization; and
WHEREAS, the Board of Trustees of the Trust has determined that the
Reorganization, with respect to each Selling Fund, is in the best interests of
the Selling Fund and that the interests of the existing shareholders of the
Selling Fund will not be diluted as a result of the Reorganization.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE I
TRANSFER OF ASSETS OF THE SELLING FUNDS IN EXCHANGE FOR ACQUIRING
FUND SHARES AND LIQUIDATION OF THE SELLING FUNDS
1.1 THE EXCHANGE. Each Selling Fund agrees to transfer all of its assets,
as set forth in Section 1.2, to its corresponding Acquiring Fund. In exchange,
each Acquiring Fund agrees: (i) to deliver to its corresponding Selling Fund the
number of full and fractional Acquiring Fund Shares, computed in the manner set
forth in Section 2.3; and (ii) to assume all of the liabilities of the Selling
Fund, as set forth in Section 1.3. Such transactions shall take place at the
Closing Date provided for in Section 3.1.
1.2 ASSETS TO BE TRANSFERRED. Each Selling Fund shall transfer all of its
assets to its corresponding Acquiring Fund, including, without limitation, all
cash, securities, commodities, interests in futures and dividends or interest
receivables, owned by the Selling Fund and any deferred or prepaid expenses
shown as an asset on the books of such Selling Fund on the Closing Date.
Each Selling Fund will, within a reasonable period of time before the
Closing Date, furnish each Acquiring Fund with a list of the Selling Fund's
portfolio securities and other investments. Each Acquiring Fund will, within a
reasonable time before the Closing Date, furnish its corresponding Selling Fund
with a list of the securities, if any, on the Selling Fund's list referred to
above that do not conform to the Acquiring Fund's investment objectives,
policies, and restrictions. A Selling Fund, if requested by its corresponding
Acquiring Fund, will dispose of securities on the Acquiring Fund's list before
the Closing Date. In addition, if it is determined that the portfolios of a
Selling Fund and its corresponding Acquiring Fund, when aggregated, would
contain investments exceeding certain percentage limitations imposed upon the
Acquiring Fund with
respect to such investments, the Selling Fund, if requested by the Acquiring
Fund, will dispose of a sufficient amount of such investments as may be
necessary to avoid violating such limitations as of the Closing Date.
Notwithstanding the foregoing, nothing herein will require a Selling Fund to
dispose of any investments or securities if, in the reasonable judgment of the
Selling Fund's trustees or investment adviser, such disposition would adversely
affect the tax-free nature of the Reorganization for federal income tax purposes
or would violate their fiduciary duties to the Selling Fund's shareholders.
1.3 LIABILITIES TO BE ASSUMED. Each Selling Fund will endeavor to
discharge all of its known liabilities and obligations to the extent possible
before the Closing Date. Notwithstanding the foregoing, any liabilities not so
discharged shall be assumed by the Acquiring Fund, which assumed liabilities
shall include all of the Selling Fund's liabilities, debts, obligations, and
duties of whatever kind or nature, whether absolute, accrued, contingent, or
otherwise, whether or not arising in the ordinary course of business, whether or
not determinable at the Closing Date, and whether or not specifically referred
to in this Agreement.
1.4 LIQUIDATION AND DISTRIBUTION. On or as soon after its Closing Date as
is conveniently practicable (the "Liquidation Date"): (a) each Selling Fund will
distribute in complete liquidation of the Selling Fund, pro rata to its
shareholders of record, determined as of the close of business on the Valuation
Date (the "Selling Fund Shareholders"), all of the Acquiring Fund Shares
received by the Selling Fund pursuant to Section 1.1; and (b) the Selling Fund
will thereupon proceed to dissolve and terminate as set forth in Section 1.9
below. Such distribution will be accomplished by the transfer of Acquiring Fund
Shares credited to the account of the Selling Fund on the books of the Acquiring
Fund to open accounts on the share records of the Acquiring Fund in the name of
the Selling Fund Shareholders, and representing the respective pro rata number
of Acquiring Fund Shares due such shareholders. All issued and outstanding
shares of the Selling Fund will simultaneously be canceled on the books of the
Selling Fund. The Acquiring Fund shall not issue certificates representing
Acquiring Fund Shares in connection with such transfer.
1.5 OWNERSHIP OF SHARES. Ownership of Acquiring Fund Shares will be shown
on the books of the Acquiring Funds' transfer agent. Shares of each Acquiring
Fund will be issued simultaneously to its corresponding Selling Fund, in an
amount equal in value to the aggregate net asset value of each Selling Fund's
shares, to be distributed to Selling Fund shareholders.
1.6 TRANSFER TAXES. Any transfer taxes payable upon the issuance of
Acquiring Fund Shares in a name other than the registered holder of the Selling
Fund shares on the books of the Selling Fund as of that time shall, as a
condition of such issuance and transfer, be paid by the person to whom such
Acquiring Fund Shares are to be issued and transferred.
1.7 TERMINATION. Each Selling Fund shall be terminated promptly following
the respective Closing Date and the making of all distributions pursuant to
Section 1.4.
1.8 RELATIONSHIP OF TRANSACTIONS. Subject to the conditions set forth in
this Agreement, the failure of one of the Selling Funds to consummate the
transactions contemplated hereby shall not affect the consummation or validity
of the Reorganization with respect to any other Selling Fund, and the provisions
of this Agreement shall be construed to effect this intent, including, without
limitation, as the context requires, construing the terms "Acquiring Fund" and
"Selling Fund" as meaning only those series of the Trust, which are involved in
the Reorganization as of the Closing Date.
ARTICLE II
VALUATION
2.1 VALUATION OF ASSETS. The value of a Selling Fund's net assets shall
be the value of such assets on the business day immediately prior to the Closing
Date (such time and date being hereinafter called the "Valuation Date"), using
the valuation procedures set forth in the Trust's Trust Instrument and each
Acquiring Fund's then current prospectus and statement of additional information
or such other valuation procedures as shall be mutually agreed upon by the
parties.
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2.2 VALUATION OF SHARES. The net asset value per share of Acquiring Fund
Shares shall be the net asset value per share computed on the Valuation Date,
using the valuation procedures set forth in the Trust's Trust Instrument and
each Acquiring Fund's then current prospectuses and statements of additional
information, or such other valuation procedures as shall be mutually agreed upon
by the parties.
2.3 SHARES TO BE ISSUED. The number of Acquiring Fund Shares to be issued
(including fractional shares, if any) in exchange for the corresponding Selling
Fund's net assets, shall be determined by dividing the Selling Fund's net assets
determined in accordance with Section 2.1, by the Acquiring Fund's net asset
value per share determined in accordance with Section 2.2.
2.4 EFFECT OF SUSPENSION IN TRADING. In the event that on the Valuation
Date, either: (a) the NYSE or another primary exchange on which the portfolio
securities of an Acquiring Fund or a Selling Fund are purchased or sold, shall
be closed to trading or trading on such exchange shall be restricted; or (b)
trading or the reporting of trading on the NYSE or elsewhere shall be disrupted
so that accurate appraisal of the value of the net assets of an Acquiring Fund
or a Selling Fund is impracticable, the Valuation Date shall be postponed until
the first business day after the day when trading is fully resumed and reporting
is restored.
ARTICLE III
CLOSINGS AND CLOSING DATE
3.1 CLOSING DATE. The Closing Date shall be September 21, 2002 or such
other date as the parties may agree. All acts taking place at the Closing shall
be deemed to take place immediately prior to the Closing Date unless otherwise
provided. The Closing shall be held as of 8:00 a.m. Central time (the "Effective
Time") at the offices of PFPC Inc., 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000, or at such other time and/or place as the parties may
agree.
3.2 CUSTODIAN'S CERTIFICATE. X.X. Xxxxxx Xxxxx & Company, as custodian
for each Selling Fund (the "Custodian"), shall deliver at the Closing a
certificate of an authorized officer stating that: (a) each Selling Fund's
portfolio securities, cash, and any other assets shall have been delivered in
proper form to its corresponding Acquiring Fund on the Closing Dates; and (b)
all necessary taxes including all applicable federal and state stock transfer
stamps, if any, shall have been paid, or provision for payment shall have been
made, in conjunction with the delivery of portfolio securities by the Selling
Fund.
3.3 TRANSFER AGENT'S CERTIFICATE. PFPC Inc., as transfer agent for each
Selling Fund as of the Closing Date, shall deliver at the Closing a certificate
of an authorized officer stating that its records contain the names and
addresses of Selling Fund Shareholders, and the number and percentage ownership
of outstanding shares owned by each such shareholder immediately prior to the
Closing. Each Acquiring Fund shall issue and deliver or cause PFPC Inc., its
transfer agent, to issue and deliver a confirmation evidencing Acquiring Fund
Shares to be credited on the Closing Date to the Secretary of the Trust or
provide evidence satisfactory to the Selling Fund that such Acquiring Fund
Shares have been credited to the Selling Fund's account on the books of the
Acquiring Fund. At the Closing, each party shall deliver to the other such bills
of sale, checks, assignments, share certificates, receipts and other documents,
if any, as such other party or its counsel may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS OF THE SELLING FUND. The Trust, on behalf of each
Selling Fund, represents and warrants as follows:
(a) The Trust is a voluntary association duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Selling Fund is a separate series of the Trust duly authorized
in accordance with the applicable provisions of the Trust's Trust
Instrument.
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(c) The Trust is registered as an open-end management investment
company under the 1940 Act, and such registration is in full force and
effect.
(d) The Selling Fund is not, and the execution, delivery, and
performance of this Agreement (subject to shareholder approval) will not,
result in the violation of any provision of the Trust's Trust Instrument or
By-Laws or of any material agreement, indenture, instrument, contract,
lease, or other undertaking to which the Selling Fund is a party or by
which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the
Acquiring Fund, the Selling Fund has no material contracts or other
commitments (other than this Agreement) that will be terminated with
liability to it before the Closing Date.
(f) No litigation, administrative proceeding, or investigation of or
before any court or governmental body is presently pending or to its
knowledge threatened against the Selling Fund or any of its properties or
assets, which, if adversely determined, would materially and adversely
affect its financial condition, the conduct of its business, or the ability
of the Selling Fund to carry out the transactions contemplated by this
Agreement. The Selling Fund knows of no facts that might form the basis for
the institution of such proceedings 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 and adversely affects its business or its ability to
consummate the transactions contemplated herein.
(g) The financial statements of the Selling Fund as of October 31,
2001, and for the fiscal year then ended have been prepared in accordance
with generally accepted accounting principles, and such statements (copies
of which have been furnished to the Acquiring Funds) fairly reflect the
financial condition of the Selling Fund as of October 31, 2001, and there
are no known contingent liabilities of the Selling Fund as of such date
that are not disclosed in such statements.
(h) Since the date of the financial statements referred to in
subsection (g) above, there have been no material adverse changes in the
Selling Fund's financial condition, assets, liabilities or business (other
than changes occurring in the ordinary course of business). For the
purposes of this subsection (h), a decline in the net asset value of the
Selling Fund shall not constitute a material adverse change.
(i) All federal, state, local and other tax returns and reports of the
Selling Fund required by law to be filed, have been filed, and all federal,
state, local and other taxes required to be paid (whether or not a return
or report is required) have been paid, or provision shall have been made
for the payment thereof. To the best of the Selling Fund's knowledge, no
tax authority is currently auditing or preparing to audit, such Selling
Fund, and no assessment has been asserted against a Selling Fund.
(j) All issued and outstanding shares of the Selling Fund are duly and
validly issued and outstanding, fully paid and non-assessable by the
Selling Fund. All of the issued and outstanding shares of the Selling Fund
will, at the time of the Closing Date, be held by the persons and in the
amounts set forth in the records of the Selling Fund's transfer agent as
provided in Section 3.3. The Selling Fund has no outstanding options,
warrants, or other rights to subscribe for or purchase any of the Selling
Fund shares, and has no outstanding securities convertible into any of the
Selling Fund shares.
(k) At the Closing Date, the Selling Fund will have good and
marketable title to the Selling Fund's assets to be transferred to the
Acquiring Fund pursuant to Section 1.2, and full right, power, and
authority to sell, assign, transfer, and deliver such assets, the Acquiring
Fund will acquire good and marketable title thereto.
(l) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the Selling
Fund. Subject to approval by the Selling Fund Shareholders, this Agreement
constitutes a valid and binding obligation of the Selling Fund, enforceable
in accordance with its terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium, and other laws relating to or
affecting creditors' rights and to general equity principles.
(m) The information to be furnished by the Selling Fund for use in
no-action letters, applications for orders, registration statements, proxy
materials, and other documents that may be necessary in
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connection with the transactions contemplated herein shall be accurate and
complete in all material respects and shall comply in all material respects
with federal securities and other laws and regulations.
(n) From the effective date of the Registration Statement (as defined
in Section 5.7), through the time of the meeting of the Selling Fund
Shareholders and on each Closing Date, any written information furnished by
the Trust with respect to the Selling Fund for use in the Proxy Materials
(as defined in Section 5.7), or any other materials provided in connection
with the Reorganization, does not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
or necessary to make the statements, in light of the circumstances under
which such statements were made, not misleading.
(o) For each taxable year of its operations including the short
taxable year ending with the Closing Date, the Selling Fund has elected to
qualify, and has qualified, as a "regulated investment company" under the
Code (a "RIC").
4.2 REPRESENTATIONS OF THE ACQUIRING FUNDS. The Trust, on behalf of each
Acquiring Fund, represents and warrants as follows:
(a) The Trust is a voluntary association, duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Acquiring Fund is a separate series of the Trust duly
authorized in accordance with the applicable provisions of the Trust's
Trust Instrument.
(c) The Trust is registered as an open-end management investment
company under the 1940 Act, and such registration is in full force and
effect.
(d) The Acquiring Fund is not, and the execution, delivery and
performance of this Agreement will not, result in a violation of the
Trust's Trust Instrument or By-Laws or of any material agreement,
indenture, instrument, contract, lease, or other undertaking to which the
Acquiring Fund is a party or by which it is bound.
(e) No litigation, administrative proceeding or investigation of or
before any court or governmental body is presently pending or to its
knowledge threatened against the Acquiring Fund or any of its properties or
assets, which, if adversely determined, would materially and adversely
affect its financial condition, the conduct of its business or the ability
of the Acquiring Fund to carry out the transactions contemplated by this
Agreement. The Acquiring Fund knows of no facts that might form the basis
for the institution of such proceedings and it is not a party to or subject
to the provisions of any order, decree, or judgment of any court or
governmental body that materially and adversely affects its business or its
ability to consummate the transaction contemplated herein.
(f) The financial statements of the Acquiring Fund as of October 31,
2001 and for the fiscal year then ended have been prepared in accordance
with generally accepted accounting principles, and such statements (copies
of which have been furnished to the Selling Funds) fairly reflect the
financial condition of the Acquiring Fund as of October 31, 2001, and there
are no known contingent liabilities of the Acquiring Fund as of such date
that are not disclosed in such statements.
(g) Since the date of the financial statements referred to in
subsection (f) above, there have been no material adverse changes in the
Acquiring Fund's financial condition, assets, liabilities or business
(other than changes occurring in the ordinary course of business). For the
purposes of this subsection (g), a decline in the net asset value of the
Acquiring Fund shall not constitute a material adverse change.
(h) All federal, state, local and other tax returns and reports of the
Acquiring Fund required by law to be filed, have been filed. All federal,
state, local and other taxes required to be paid (whether or not a return
or report is required) have been paid or provision shall have been made for
their payment. To the best of the Acquiring Fund's knowledge, no tax
authority is currently auditing or preparing to audit such Acquiring Fund,
and no assessment has been asserted against an Acquiring Fund.
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(i) All issued and outstanding Acquiring Fund Shares are duly and
validly issued and outstanding, fully paid and non-assessable by the
Acquiring Fund. The Acquiring Fund has no outstanding options, warrants, or
other rights to subscribe for or purchase any Acquiring Fund Shares, and
there are no outstanding securities convertible into any Acquiring Fund
Shares.
(j) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the Acquiring
Fund, and this Agreement constitutes a valid and binding obligation of the
Acquiring Fund, enforceable in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights and to general equity
principles.
(k) The Acquiring Fund Shares to be issued and delivered to the
Selling Fund for the account of the Selling Fund Shareholders pursuant to
the terms of this Agreement will, at the Closing Date, have been duly
authorized. When so issued and delivered, such shares will be duly and
validly issued Acquiring Fund Shares, and will be fully paid and
non-assessable.
(l) The information to be furnished by the Acquiring Fund for use in
no-action letters, applications for orders, registration statements, proxy
materials, and other documents that may be necessary in connection with the
transactions contemplated herein shall be accurate and complete in all
material respects and shall comply in all material respects with federal
securities and other laws and regulations.
(m) From the effective date of the Registration Statement (as defined
in Section 5.7), through the time of the meeting of the Selling Fund
Shareholders and on the Closing Date, any written information furnished by
the Trust with respect to the Acquiring Fund for use in the Proxy Materials
(as defined in Section 5.7), or any other materials provided in connection
with the Reorganization, does not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
or necessary to make the statements, in light of the circumstances under
which such statements were made, not misleading.
(n) For each taxable year of its operations, the Acquiring Fund has
elected to qualify, has qualified and intends to continue to qualify as a
RIC under the Code.
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act, the 1940 Act,
and any state securities laws as it may deem appropriate in order to
continue its operations after the Closing Date.
ARTICLE V
COVENANTS OF THE FUNDS
5.1 OPERATION IN ORDINARY COURSE. Each Acquiring Fund and Selling Fund
will operate its respective business in the ordinary course between the date of
this Agreement and the Closing Date, it being understood that such ordinary
course of business will include customary dividends and distributions, any other
distribution necessary or desirable to avoid federal income or excise taxes, and
shareholder purchases and redemptions.
5.2 APPROVAL OF SHAREHOLDERS. The Trust will call a special meeting of
Selling Fund Shareholders to consider and act upon this Agreement (or
transactions contemplated thereby) and to take all other appropriate action
necessary to obtain approval of the transactions contemplated herein.
5.3 INVESTMENT REPRESENTATION. Each Selling Fund covenants that the
Acquiring Fund Shares to be issued pursuant to this Agreement are not being
acquired for the purpose of making any distribution, other than in connection
with the Reorganization and in accordance with the terms of this Agreement.
5.4 ADDITIONAL INFORMATION. Each Selling Fund will assist its
corresponding Acquiring Fund in obtaining such information as the Acquiring Fund
reasonably requests concerning the beneficial ownership of the Selling Fund's
shares.
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5.5 FURTHER ACTION. Subject to the provisions of this Agreement, each
Fund will take or cause to be taken, all action, and do or cause to be done, all
things reasonably necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement, including any actions
required to be taken after the Closing Date.
5.6 STATEMENT OF EARNINGS AND PROFITS. As promptly as practicable, but in
any case within sixty days after the Closing Date, each Selling Fund shall
furnish its corresponding Acquiring Fund, in such form as is reasonably
satisfactory to the Acquiring Fund, a statement of the earnings and profits of
the Selling Fund for federal income tax purposes that will be carried over by
the Acquiring Fund as a result of Section 381 of the Code, and which will be
certified by the Trust's Treasurer.
5.7 PREPARATION OF REGISTRATION STATEMENT AND PROXY MATERIALS. The Trust
will prepare and file with the Commission a registration statement on Form N-14
relating to the Acquiring Fund Shares to be issued to shareholders of the
Selling Funds (the "Registration Statement"). The Registration Statement shall
include a proxy statement and a prospectus of each Acquiring Fund relating to
the transaction contemplated by this Agreement. The Registration Statement shall
be in compliance with the 1933 Act, the 1934 Act and the 1940 Act, as
applicable. Each party will provide the other party with the materials and
information necessary to prepare the proxy statement (the "Proxy Materials"),
for inclusion therein, in connection with the meeting of the Selling Funds'
Shareholders to consider the approval of this Agreement and the transactions
contemplated herein.
ARTICLE VI
CONDITION PRECEDENT TO OBLIGATIONS OF EACH SELLING FUND
The obligations of each Selling Fund to consummate the transactions
provided for herein shall be subject to the following condition:
6.1 All representations, covenants, and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and as of the Closing Date, with the same force and effect
as if made on and as of that Closing Date. Each Acquiring Fund shall have
delivered to its corresponding Selling Fund a certificate executed in the
Acquiring Fund's name by the Trust's President or Vice President and its
Treasurer or Assistant Treasurer, in form and substance satisfactory to the
Selling Fund and dated as of the Closing Date, to such effect and as to such
other matters as the Selling Fund shall reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING FUND
The obligations of each Acquiring Fund to consummate the transactions
provided for herein shall be subject to the following conditions:
7.1 All representations, covenants, and warranties of a Selling Fund
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and as of the Closing Date, with the same force and effect
as if made on and as of such Closing Date. Each Selling Fund shall have
delivered to its corresponding Acquiring Funds on such Closing Date a
certificate executed in the Selling Fund's name by the Trust's President or Vice
President and the Treasurer or Assistant Treasurer, in form and substance
satisfactory to the Acquiring Fund and dated as of such Closing Date, to such
effect and as to such other matters as the Acquiring Fund shall reasonably
request.
7.2 The Selling Fund shall have delivered to its corresponding Acquiring
Fund a statement of the Selling Fund's assets and liabilities, together with a
list of the Selling Fund's portfolio securities showing the tax costs of such
securities by lot and the holding periods of such securities, as of the Closing
Date, certified by the Treasurer of the Trust.
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ARTICLE VIII
FURTHER CONDITIONS PRECEDENT
The obligations of each Selling Fund or its corresponding Acquiring Fund
hereunder shall also be subject to the following:
8.1 This Agreement and the transactions contemplated herein, with respect
to each Selling Fund, shall have been approved by the requisite vote of the
holders of the outstanding shares of each Selling Fund in accordance with
applicable law and the provisions of the Trust's Trust Instrument and By-Laws.
Notwithstanding anything herein to the contrary, neither an Acquiring Fund nor a
Selling Fund may waive the conditions set forth in this Section 8.1.
8.2 On the Closing Date, the Commission shall not have issued an
unfavorable report under Section 25(b) of the 1940 Act, or instituted any
proceeding seeking to enjoin the consummation of the transactions contemplated
by this Agreement under Section 25(c) of the 1940 Act. Furthermore, 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.
8.3 All required consents of other parties and all other consents, orders,
and permits of federal, state and local regulatory authorities (including those
of the Commission and of state securities authorities, including any necessary
"no-action" positions and exemptive orders from such federal and state
authorities) to permit consummation of the transactions contemplated herein
shall have been obtained.
8.4 The Registration Statement shall have become effective under the 1933
Act, and no stop orders suspending the effectiveness thereof shall have been
issued. To the best knowledge of the parties to this Agreement, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 1933 Act.
8.5 Each Selling Fund shall have declared and paid a dividend or dividends
which, together with all previous such dividends, shall have the effect of
distributing to its shareholders all of the Selling Fund's investment company
taxable income for all taxable periods ending on or before the Closing Date
(computed without regard to any deduction for dividends paid), if any, plus the
excess of its interest income, if any, excludible from gross income under
Section 103(a) of the Code over its deduction disallowed under Sections 265 and
171(a)(2) of the Code for all taxable periods ending on or before such Closing
Date and all of its net capital gains realized in all taxable periods ending on
or before such Closing Date (after reduction for any capital loss carry
forward).
8.6 The parties shall have received on the Closing Date an opinion from
Vedder, Price, Xxxxxxx & Kammholz, counsel to the Trust, dated as of such
Closing Date, covering the following points:
(a) Each Fund is a legally designated, separate series of the Trust,
and the Trust is a business trust, validly existing under the laws of the
State of Delaware, which, to such counsel's knowledge, has the power to own
all of its properties and assets and to carry on its business as presently
conducted.
(b) The Trust is registered as an investment company under the 1940
Act, and, to such counsel's knowledge, such registration under the 1940 Act
is in full force and effect.
(c) Assuming that consideration of not less than the net asset value
of Selling Fund Shares has been paid, and assuming that such shares were
issued in accordance with the terms of each Selling Fund's registration
statement, or any amendment thereto, in effect at the time of such
issuance, all issued and outstanding shares of the Selling Fund are legally
issued and fully paid and non-assessable, and no shareholder of a Selling
Fund has any preemptive rights with respect to the Selling Fund's shares.
(d) Assuming that the Acquiring Fund Shares have been issued in
accordance with the terms of this Agreement, the Acquiring Fund Shares to
be issued and delivered to each Selling Fund on behalf of the Selling Fund
Shareholders, as provided by this Agreement, are duly authorized and upon
such
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delivery will be legally issued and outstanding and fully paid and
non-assessable, and no shareholder of an Acquiring Fund has any preemptive
rights with respect to Acquiring Fund Shares.
(e) The Registration Statement is effective and to such counsel's
knowledge, no stop order under the 1933 Act pertaining thereto has been
issued, and to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the United
States or the State of Delaware is required for consummation by the Funds
of the transactions contemplated herein, except as have been obtained.
(f) The execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated herein will not, result in a
violation of the Trust's Trust Instrument (assuming approval of Selling
Fund Shareholders has been obtained) or By-Laws or any provision of any
material agreement, indenture, instrument, contract, lease or other
undertaking (in each case known to such counsel) to which a Fund is a party
or by which a Fund or any of its properties may be bound.
8.7 The parties to each Reorganization shall have received an opinion of
Vedder, Price, Xxxxxxx & Kammholz addressed to each Acquiring Fund and Selling
Fund involved in such Reorganization substantially to the effect that for
federal income tax purposes with respect to each Selling Fund:
(a) The transfer of all of the Selling Fund's assets in exchange for
Acquiring Fund Shares and the assumption by the Acquiring Fund of the
liabilities of the Selling Fund (followed by the distribution of Acquiring
Fund Shares to the Selling Fund Shareholders in complete dissolution and
liquidation of the Selling Fund) will constitute a "reorganization" within
the meaning of Section 368(a) of the Code and the Acquiring Fund and the
Selling Fund will each be a "party to a reorganization" within the meaning
of Section 368(b) of the Code.
(b) No gain or loss will be recognized by the Acquiring Fund upon the
receipt of the assets of the Selling Fund solely in exchange for Acquiring
Funds Share and the assumption by the Acquiring Fund of the liabilities of
the Selling Fund.
(c) No gain or loss will be recognized by the Selling Fund upon the
transfer of the Selling Fund's assets to the Acquiring Fund solely in
exchange for Acquiring Fund Shares and the assumption by the Acquiring Fund
of the liabilities of the Selling Fund or upon the distribution (whether
actual or constructive) of Acquiring Fund Shares to the Selling Fund
Shareholders in exchange for such shareholders' shares of the Selling Fund.
(d) No gain or loss will be recognized by the Selling Fund
Shareholders upon the exchange of their Selling Fund shares for Acquiring
Fund Shares in the Reorganization.
(e) The aggregate tax basis of the Acquiring Fund Shares received by
each Selling Fund Shareholder pursuant to the Reorganization will be the
same as the aggregate tax basis of the Selling Fund shares exchanged
therefor by such shareholder. The holding period of Acquiring Fund Shares
to be received by each Selling Fund Shareholder will include the period
during which the Selling Fund shares exchanged therefor were held by such
shareholder, provided such Selling Fund shares are held as capital assets
at the time of the Reorganization.
(f) The tax basis of the Selling Fund's assets acquired by the
Acquiring Fund will be the same as the tax basis of such assets to the
Selling Fund immediately before the Reorganization. The holding period of
the assets of the Selling Fund in the hands of the Acquiring Fund will
include the period during which those assets were held by the Selling Fund.
Such opinion shall be based on customary assumptions and such
representations as Vedder, Price, Xxxxxxx & Kammholz may reasonably request, and
each Selling Fund and Acquiring Fund will cooperate to make and certify the
accuracy of such representations. Notwithstanding anything herein to the
contrary, neither an Acquiring Fund nor a Selling Fund may waive the conditions
set forth in this Section 8.7.
9
ARTICLE IX
EXPENSES
9.1 ABN AMRO Asset Management (USA) LLC and/or affiliated persons thereof
will pay all expenses associated with the Reorganization. Reorganization
expenses include, without limitation: (a) expenses associated with the
preparation and filing of the Proxy Materials; (b) postage; (c) printing; (d)
accounting fees; (e) legal fees incurred by each Fund; (f) solicitation costs of
the transaction; and (g) other related administrative or operational costs. The
Funds will not pay any of these expenses.
9.2 Each party represents and warrants to the other that there is no
person or entity entitled to receive any broker's fees or similar fees or
commission payments in connection with the transactions provided for herein.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The parties agree that neither party has made to the other party any
representation, warranty and/or covenant not set forth herein, and that this
Agreement constitutes the entire agreement between the parties.
10.2 The representations, warranties, and covenants contained in this
Agreement or in any document delivered pursuant to or in connection with this
Agreement shall not survive the consummation of the transactions contemplated
hereunder.
ARTICLE XI
TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of the
parties and such termination may be effected by the parties' President or a Vice
President without further action by the Trust's Board of Trustees. In addition,
either party may at its option terminate this Agreement at or before the Closing
Date due to:
(a) a breach by the other of any representation, warranty, or
agreement contained herein to be performed at or before the Closing Date,
if not cured within 30 days;
(b) a condition precedent to the obligations of the terminating party
that has not been met and it reasonably appears that it will not or cannot
be met; or
(c) a determination by the Trust's Board of Trustees that the
consummation of the transactions contemplated herein is not in the best
interest of any Fund.
11.2 In the event of any such termination, in the absence of willful
default, there shall be no liability for damages on the part of either an
Acquiring Fund, a Selling Fund, the Trust, or their respective Trustees or
officers.
ARTICLE XII
AMENDMENTS
12.1 This Agreement may be amended, modified, or supplemented in such
manner as may be mutually agreed upon in writing by the officers of the Trust as
specifically authorized by its Board of Trustees; provided, however, that
following the meeting of the Selling Fund Shareholders called by a Selling Fund
pursuant to Section 5.2 of this Agreement, no such amendment may have the effect
of changing the provisions for determining the number of Acquiring Fund Shares
to be issued to the Selling Fund Shareholders under this Agreement to the
detriment of such shareholders without their further approval.
10
ARTICLE XIII
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION OF LIABILITY
13.1 The Article and section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
13.3 This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
13.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but, except as provided in
this section, no assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the written consent of the other
party. Nothing herein expressed or implied is intended or shall be construed to
confer upon or give any person, firm, or corporation, other than the parties
hereto and their respective successors and assigns, any rights or remedies under
or by reason of this Agreement.
13.5 It is expressly agreed that the obligations of the Funds hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents, or employees of the Trust personally, but shall bind only the trust
property of the Funds, as provided in the Trust Instrument of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust on behalf of each Fund and signed by authorized officers of the Trust,
acting as such. Neither the authorization by such Trustees nor the execution and
delivery by such officers shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Funds as provided in the Trust's Trust
Instrument.
11
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all as of the
date first written above.
ABN AMRO FUNDS
ON BEHALF OF ABN AMRO/CHICAGO
CAPITAL GROWTH FUND AND ABN
AMRO/TAMRO SMALL CAP FUND
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
ACKNOWLEDGED:
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
---------------------------------------------------
Title: Senior Vice President
-----------------------------------------------------
ABN AMRO FUNDS
ON BEHALF OF ABN AMRO GROWTH FUND
AND ABN AMRO SMALL CAP FUND
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
ACKNOWLEDGED:
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------------------
Name: Xxxxxxx Xxxxx
---------------------------------------------------
Title: Vice President
-----------------------------------------------------
12
SCHEDULE A TO THE AGREEMENT AND PLAN OF REORGANIZATION
SUMMARY OF THE REORGANIZATION
(shareholders of each Selling Fund will receive shares
of the Acquiring Fund opposite their Fund)
SELLING FUND ACQUIRING FUND
------------ --------------
ABN AMRO Growth Fund ABN AMRO/Chicago Capital Growth Fund
ABN AMRO Small Cap Fund ABN AMRO/TAMRO Small Cap Fund
13
