Exhibit 4
FORM OF AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION
THIS AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION (the Agreement)
is made as of the 22nd day of April, 1996 by and among Fidelity
Institutional Investors Trust, a Delaware business trust, on behalf of
State and Local Asset Management Series: Government Money Market Portfolio
(SLAM), a series of Fidelity Institutional Investors Trust and Fidelity
Institutional Cash Portfolios (FICP), a Delaware business trust, on behalf
of Treasury, a series of FICP. Fidelity Institutional Investors Trust and
FICP may be referred to herein collectively as the "Trusts" or each
individually as a "Trust." Treasury and SLAM may be referred to herein
collectively as the "Funds" or each individually as the "Fund."
This Agreement is intended to be, and is adopted as, a plan of
reorganization within the meaning of section 368(a)(1)(C) of the United
States Internal Revenue Code of 1986, as amended (the Code). The
reorganization will comprise of: (a) the transfer of all of the assets of
SLAM to Treasury in exchange solely for Treasury Class I Shares of
beneficial interest (the Treasury Shares) and the assumption by Treasury of
SLAM's liabilities; and (b) the constructive distribution of the Treasury
Shares by SLAM to SLAM shareholders in complete liquidation and termination
of SLAM in exchange for all of SLAM's outstanding shares. SLAM shall
receive Treasury Shares equal to the number of full and fractional shares
in SLAM then outstanding, which SLAM shall then distribute to its
shareholders. The foregoing transactions are referred to herein as the
"Reorganization."
In consideration of the mutual promises and subject to the terms and
conditions herein, the parties covenant and agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF SLAM. SLAM represents and warrants
to and agrees with Treasury that:
(a) SLAM is a series of Fidelity Institutional Investors Trust, a business
trust duly organized, validly existing, and in good standing under the laws
of the State of Delaware, and has the power to own all of its properties
and assets and to carry out its obligations under this Agreement. It has
all necessary federal, state, and local authorizations to carry on its
business as now being conducted and to carry out this Agreement;
(b) Fidelity Institutional Investors Trust is an open-end, management
investment company duly registered under the Investment Company Act of
1940, as amended (the 1940 Act), and such registration is in full force and
effect;
(c) The Prospectus and Statement of Additional Information of SLAM dated
January 19, 1996, previously furnished to Treasury, did not and does 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
therein not misleading;
(d) There are no material legal, administrative, or other proceedings
pending or, to the knowledge of SLAM, threatened against SLAM which assert
liability on the part of SLAM. SLAM knows of no facts which might form the
basis for the institution of such proceedings;
(e) SLAM is not in, and the execution, delivery, and performance of this
Agreement will not result in, violation of any provision of its Trust
Instrument or By-laws, or, to the knowledge of SLAM, of any agreement,
indenture, instrument, contract, lease, or other undertaking to which SLAM
is a party or by which SLAM is bound or result in the acceleration of any
obligation or the imposition of any penalty under any agreement, judgment
or decree to which SLAM is a party or is bound;
(f) The Statement of Assets and Liabilities, the Statement of Operations,
the Statement of Changes in Net Assets, Per-Share Data and Ratios, and the
Schedule of Investments (including market values) of SLAM at November 30,
1995, have been audited by Coopers & Xxxxxxx L.L.P., independent
accountants, and have been furnished to Treasury. Unaudited financial
statements and the Schedule of Investments (including market values) for
the six-month period ended May 31, 1996 shall be furnished to Treasury
promptly following the availability of such documents. Said Statements of
Assets and Liabilities and Schedules of Investments fairly present, or will
present, the Fund's financial position as of such dates and said Statement
of Operations and Changes in Net Assets fairly reflect, or will reflect,
its results of operations and changes in financial position for the periods
covered thereby in conformity with generally accepted accounting principles
consistently applied;
(g) SLAM has no known liabilities of a material nature, contingent or
otherwise, other than those shown as belonging to it on its Statement of
Assets and Liabilities and those incurred in the ordinary course of
business as an investment company as of November 30, 1995;
(h) The registration statement (Registration Statement) filed with the
Securities and Exchange Commission (Commission) by Treasury on Form N-14
relating to the Treasury Shares issuable hereunder and the proxy statement
of SLAM included therein (Proxy Statement), on the effective date of the
Registration Statement and insofar as they relate to SLAM (i) will comply
in all material respects with the provisions of the Securities Act of 1933,
as amended (the 1933 Act), the Securities Exchange Act of 1934, as amended
(the 1934 Act), and the 1940 Act, and the rules and regulations thereunder,
and (ii) will 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 therein not misleading; and at the time of the shareholders'
meeting referred to in Section 7 and on the Closing Date (as defined in
Section 6), the prospectus contained in the Registration Statement of which
the Proxy Statement is a part (the Prospectus), as amended or supplemented,
insofar as it relates to SLAM, will 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 therein not misleading;
(i) All material contracts and commitments of SLAM (other than this
Agreement) will be terminated without liability to SLAM prior to the
Closing Date (other than those made in connection with redemptions of
shares and the purchase and sale of portfolio securities made in the
ordinary course of business);
(j) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by SLAM of the
transactions contemplated by this Agreement, except such as have been
obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state
securities or blue sky laws (which term as used herein shall include the
securities laws of the District of Columbia and Puerto Rico);
(k) SLAM has filed or will file all federal and state tax returns which, to
the knowledge of SLAM's officers, are required to be filed by SLAM and has
paid or will pay all federal and state taxes shown to be due on said
returns or provision shall have been made for the payment thereof, and, to
the best of SLAM's knowledge, no such return is currently under audit and
no assessment has been asserted with respect to such returns;
(l) SLAM has met the requirements of Subchapter M of the Code for
qualification and treatment as a regulated investment company for all prior
taxable years and intends to meet such requirements for its current taxable
year ending on the Closing Date (as defined in section 6);
(m) All of the issued and outstanding shares of SLAM are, and at the
Closing Date, will be duly and validly issued and outstanding and fully
paid and nonassessable as a matter of Delaware law and have been offered
for sale in conformity with all applicable federal securities laws. All of
the outstanding shares of SLAM will, at the Closing Date, be held by the
persons and in the amounts set forth in the list of shareholders submitted
to Treasury in accordance with this Agreement;
(n) At the Closing Date, SLAM will have the full right, power, and
authority to sell, assign, transfer, and deliver its portfolio securities
and any other assets of SLAM to be transferred to Treasury pursuant to this
Agreement. At the Closing Date, subject only to the delivery of SLAM's
portfolio securities and any such other assets as contemplated by this
Agreement, Treasury will acquire SLAM's portfolio securities and any such
other assets subject to no encumbrances, liens, or security interests
(except for those that may arise in the ordinary course and are disclosed
to Treasury) and without any restrictions upon the transfer thereof; and
(o) The execution, performance, and delivery of this Agreement will have
been duly authorized prior to the Closing Date by all necessary corporate
action on the part of SLAM, and this Agreement constitutes a valid and
binding obligation of SLAM enforceable in accordance with its terms,
subject to shareholder approval.
2. REPRESENTATIONS AND WARRANTIES OF TREASURY. Treasury represents and
warrants to and agrees with SLAM that:
(a) Treasury is a series of FICP, a business trust duly organized, validly
existing, and in good standing under the laws of the State of Delaware, and
has the power to own all of its properties and assets and to carry out its
obligations under this Agreement. It has all necessary federal, state, and
local authorizations to carry on its business as now being conducted and to
carry out this Agreement;
(b) FICP is an open-end, management investment company duly registered
under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of Treasury
Class I, dated November 1, 1995, previously furnished to SLAM did not and
does 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 therein not misleading;
(d) There are no material legal, administrative, or other proceedings
pending or, to the knowledge of Treasury, threatened against Treasury which
assert liability on the part of Treasury. Treasury knows of no facts which
might form the basis for the institution of such proceedings;
(e) Treasury is not in, and the execution, delivery, and performance of
this Agreement will not result in, violation of any provision of its Trust
Instrument or By-laws, or, to the knowledge of Treasury, of any agreement,
indenture, instrument, contract, lease, or other undertaking to which
Treasury is a party or by which Treasury is bound or result in the
acceleration of any obligation or the imposition of any penalty under any
agreement, judgment, or decree to which Treasury is a party or is bound;
(f) The Statement of Assets and Liabilities, the Statement of Operations,
the Statement of Changes in Net Assets, Per-Share Data and Ratios, and the
Schedule of Investments (including market values) of Treasury Class I at
March 31, 1995, have been audited by Price Waterhouse LLP, independent
accountants, and have been furnished to SLAM together with such unaudited
financial statements and Schedule of Investments (including market values)
for the six-month period ended September 30, 1995. Said Statements of
Assets and Liabilities and Schedules of Investments fairly present its
financial position as of such dates and said Statement of Operations and
Changes in Net Assets fairly reflect its results of operations and changes
in financial position for the periods covered thereby in conformity with
generally accepted accounting principles consistently applied;
(g) Treasury has no known liabilities of a material nature, contingent or
otherwise, other than those shown as belonging to it on its Statement of
Assets and Liabilities and those incurred in the ordinary course of
business as an investment company as of September 30, 1995;
(h) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by Treasury of the
transactions contemplated by this Agreement, except such as have been
obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state
securities or blue sky laws (which term as used herein shall include the
securities laws of the District of Columbia and Puerto Rico);
(i) Treasury has filed or will file all federal and state tax returns
which, to the knowledge of Treasury's officers, are required to be filed by
Treasury and has paid or will pay all federal and state taxes shown to be
due on said returns or provision shall have been made for the payment
thereof, and, to the best of Treasury's knowledge, no such return is
currently under audit and no assessment has been asserted with respect to
such returns;
(j) Treasury has met the requirements of Subchapter M of the Code for
qualification and treatment as a regulated investment company for all prior
taxable years and intends to meet such requirements for its current taxable
year;
(k) By the Closing Date, the Treasury Shares to be issued to SLAM will
have been duly authorized and, when issued and delivered pursuant to this
Agreement, will be legally and validly issued and will be fully paid and
nonassessable by Treasury, and no shareholder of Treasury Class I will have
any preemptive right of subscription or purchase in respect thereof;
(l) The execution, performance, and delivery of this Agreement will have
been duly authorized prior to the Closing Date by all necessary corporate
action on the part of Treasury, and this Agreement constitutes a valid and
binding obligation of Treasury enforceable in accordance with its terms,
subject to approval by the shareholders of SLAM;
(m) The Registration Statement and the Proxy Statement, on the effective
date of the Registration Statement and insofar as they relate to Treasury,
(i) will comply in all material respects with the provisions of the 1933
Act, the 1934 Act, and the 1940 Act, and the rules and regulations
thereunder, and (ii) will 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 therein not misleading; and at the time of
the shareholders' meeting referred to in Section 7 and on the Closing Date
(as defined in section 6), the Prospectus, as amended or supplemented,
insofar as it relates to Treasury, will 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 therein not misleading;
(n) The issuance of the Treasury Shares pursuant to this Agreement will be
in compliance with all applicable federal securities laws; and
(o) All of the issued and outstanding Treasury Shares have been offered
for sale and sold in conformity with the federal securities laws.
3. REORGANIZATION.
(a) Subject to the requisite approval of the shareholders of SLAM and to
the other terms and conditions contained herein, SLAM agrees to assign,
sell, convey, transfer, and deliver to Treasury on the Closing Date (as
defined in Section 6) all of the assets of SLAM (as set forth in section
3(b)) existing on the Closing Date. Treasury agrees in exchange therefor:
(i) to assume all of SLAM's liabilities, described in section 3(c),
existing on the Closing Date, whether or not determinable on the Closing
Date, and (ii) to issue and deliver to SLAM the number of Treasury Shares
equal in value (calculated in the manner and as of the time set forth in
sections 4(d) and 4(a)) to the net asset value per share of SLAM
(calculated in the manner and as of the time set forth in sections 4(b) and
4(a)).
(b) The assets of SLAM to be acquired by Treasury shall include, without
limitation, all cash, cash equivalents, securities, receivables (including
interest or dividends receivable), claims, choses in action, and other
property owned by SLAM, and any deferred or prepaid expenses shown as an
asset on the books of SLAM on the Closing Date. SLAM will pay or cause to
be paid to Treasury any dividend or interest payments received by it on or
after the Closing Date with respect to the assets transferred to Treasury
hereunder, and Treasury will retain any dividend or interest payments
received by it after the Valuation Time (as defined in Section 4) with
respect to the assets transferred hereunder without regard to the payment
date thereof.
(c) The liabilities of SLAM to be assumed by Treasury shall include
(except as otherwise provided for herein) all of SLAM's liabilities, debts,
obligations, and duties, of whatever kind or nature, whether absolute,
accrued, contingent, or otherwise, arising in the ordinary course of
business, whether or not determinable on the Closing Date, and whether or
not specifically referred to in this Agreement. Notwithstanding the
foregoing, SLAM agrees to use its best efforts to discharge all of its
known liabilities prior to the Closing Date.
(d) Pursuant to this Agreement, as soon after the Closing Date as is
conveniently practicable (the Liquidation Date), SLAM will constructively
distribute pro rata to its shareholders of record, determined as of the
Valuation Time on the Closing Date, the Treasury Shares in exchange for
such shareholders' shares of beneficial interest in SLAM, and SLAM will
then be liquidated in accordance with the Trust Instrument of Fidelity
Institutional Investors Trust. Such distribution shall be accomplished by
the Funds' transfer agent opening accounts on transfer books for the
Treasury Shares in the names of the SLAM shareholders and transferring the
Treasury Shares thereto. Each SLAM shareholder's account shall be credited
with the respective number of full and fractional (rounded to the third
decimal place) Treasury Shares due that shareholder. All outstanding SLAM
shares, including any represented by certificates, shall simultaneously be
canceled on SLAM's share transfer records. Treasury shall not issue
certificates representing Treasury Shares in connection with the
Reorganization.
(e) Any reporting responsibility of SLAM is and shall remain its
responsibility up to and including the date on which it is terminated.
(f) Any transfer taxes payable upon issuance of the Treasury Shares in a
name other than that of the registered holder on SLAM's books of the SLAM
shares constructively exchanged for the Treasury Shares shall be paid by
the person to whom such Treasury Shares are to be issued, as a condition of
such transfer.
4. VALUATION.
(a) The Valuation Time shall be 5:00 p.m. Eastern time on the Closing Date
(as defined in section 6) (the Valuation Time).
(b) On the Closing Date, Treasury will deliver to SLAM the number of full
and fractional Treasury Shares having an aggregate net asset value equal to
the net asset value per share of SLAM multiplied by the number of shares of
SLAM then outstanding, determined as provided in this section 4.
(c) The net asset value of the Treasury Shares to be delivered to SLAM,
the value of the assets of SLAM transferred hereunder, and the value of the
liabilities of SLAM to be assumed hereunder shall in each case be
determined as of the Valuation Time.
(d) The net asset value per share of the Treasury Shares shall be computed
in the manner set forth in the then-current Treasury Class I Prospectus and
Statement of Additional Information, and the value of the assets of SLAM as
well as its net asset value per share shall be computed in the manner set
forth in the then-current SLAM Prospectus and Statement of Additional
Information.
(e) All computations pursuant to this Section shall be made by or under
the direction of Fidelity Service Co., a division of FMR Corp., in
accordance with its regular practice as pricing agent for SLAM and
Treasury.
5. FEES; EXPENSES.
(a) Pursuant to SLAM's management contract with Fidelity Management &
Research Company (FMR), FMR will pay all fees and expenses, including
legal, accounting, printing, filing, and proxy solicitation expenses,
portfolio transfer taxes (if any), or other similar expenses incurred in
connection with the transactions contemplated by this Agreement (but not
including costs incurred in connection with the purchase or sale of
portfolio securities).
(b) Each of Treasury and SLAM represents that there is no person who has
dealt with it who by reason of such dealings is entitled to any broker's or
finder's or other similar fee or commission arising out of the transactions
contemplated by this Agreement.
6. CLOSING DATE
(a) The Reorganization, together with related acts necessary to consummate
the same, unless otherwise provided herein, shall occur at the principal
office of the Trusts, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, at the
Valuation Time on July 31, 1996 (Closing Date), or at some other time,
date, and place agreed to by SLAM and Treasury.
(b) In the event that on the Closing Date: (i) the Federal Reserve Bank
of New York is closed, (b) the market for government securities is closed
to trading or trading thereon is restricted, or (ii) trading or the
reporting of trading on said market or elsewhere is disrupted so that
accurate appraisal of the value of the total net assets of SLAM and
Treasury is impracticable, the Closing Date shall be postponed until the
first business day after the day when such trading shall have been fully
resumed and such reporting shall have been restored, or such other date as
the parties may agree.
7. SHAREHOLDER MEETING AND TERMINATION OF SLAM
(a) SLAM agrees to call a meeting of its shareholders to be held after the
effective date of the Registration Statement, to consider transferring its
assets to Treasury as herein provided, adopting this Agreement, and
authorizing the liquidation of SLAM.
(b) SLAM agrees that as soon as reasonably practicable after the
distribution of the Treasury Shares, SLAM shall be terminated as a series
of Fidelity Institutional Investors Trust pursuant to its Trust Instrument,
any further actions shall be taken in connection therewith as required by
applicable law, and on and after the Closing Date, SLAM shall not conduct
any business except in connection with its liquidation and termination.
8. CONDITIONS TO OBLIGATIONS OF TREASURY. The obligations of Treasury
hereunder shall be subject to the following conditions:
(a) That SLAM furnishes to Treasury a statement, dated as of the Closing
Date, signed by the Treasurer or Assistant Treasurer of SLAM, certifying
that as of the Valuation Time on the Closing Date all representations and
warranties of SLAM made in this Agreement are true and correct in all
material respects and that SLAM has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to such date;
(b) That SLAM, on or prior to the Closing Date, furnishes Treasury with
copies of the resolutions, certified by an officer of Fidelity
Institutional Investors Trust, evidencing the adoption of this Agreement
and the approval of the transactions contemplated herein by the requisite
vote of the holders of the outstanding shares of beneficial interest of
SLAM;
(c) That, on or prior to the Closing Date, SLAM will declare one or more
dividends or distributions which, together with all previous such dividends
or distributions, shall have the effect of distributing to the shareholders
of SLAM substantially all of SLAM's investment company taxable income and
its net realized capital gain, if any, as of the Closing Date;
(d) That SLAM shall deliver to Treasury, at the Closing, a Statement of
Assets and Liabilities, together with a list of its portfolio securities
showing each such security's adjusted tax basis and holding period by lot,
with values determined as provided in Section 4 of this Agreement, all as
of the Valuation Time, certified on SLAM's behalf by its Treasurer or
Assistant Treasurer;
(e) That SLAM's custodian shall deliver to Treasury a certificate
identifying the assets of SLAM held by such custodian as of the Valuation
Time on the Closing Date and stating that at the Valuation Time: (i) the
assets held by the custodian will be transferred to Treasury; (ii) SLAM's
assets have been duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof; and (iii) to the best of
the custodian's knowledge, all necessary taxes in conjunction with the
delivery of the assets, including all applicable federal and state stock
transfer stamps, if any, have been paid or provision for payment has been
made;
(f) That SLAM's transfer agent shall deliver to Treasury at the Closing a
certificate setting forth the number of shares of SLAM outstanding as of
the Valuation Time and the name and address of each holder of record of any
such shares and the number of shares held of record by each such
shareholder;
(g) That SLAM calls a meeting of its shareholders to be held after the
effective date of the Registration Statement, to consider transferring its
assets to Treasury as herein provided, adopting this Agreement, and
authorizing the liquidation and termination of SLAM;
(h) That SLAM delivers to Treasury a certificate of an officer, dated the
Closing Date, that there has been no material adverse change in SLAM's
financial position since November 30, 1995, other than changes in the
market value of its portfolio securities, or changes due to net redemptions
of its shares, dividends or other distributions paid, or losses from
operations; and
(i) That all of the outstanding shares of beneficial interest of SLAM
shall have been offered for sale and sold in conformity with all applicable
state securities laws, and, to the extent that any audit of the records of
SLAM or its transfer agent by Treasury or its agents shall have revealed
otherwise, SLAM shall have taken all actions that in the opinion of
Treasury are necessary to remedy any prior failure on the part of SLAM to
have offered for sale and sold such shares in conformity with such laws.
9. CONDITIONS TO OBLIGATIONS OF SLAM.
(a) That Treasury shall have executed and delivered to SLAM an Assumption
of Liabilities, certified by an officer of FICP, dated as of the Closing
Date pursuant to which Treasury will assume all of the liabilities of SLAM
existing on the Closing Date in connection with the transactions
contemplated by this Agreement;
(b) That Treasury furnishes to SLAM a statement, dated as of the Closing
Date, signed by the Treasurer or Assistant Treasurer of Treasury,
certifying that, as of the Valuation Time and the Closing Date, all
representations and warranties of Treasury made in this Agreement are true
and correct in all material respects, and Treasury has complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such dates; and
(c) That SLAM shall have received an opinion of Xxxxxxxxxxx & Xxxxxxxx
LLP, counsel to SLAM and Treasury, to the effect that the Treasury Shares
are duly authorized and, upon delivery to SLAM as provided in this
Agreement, will be validly issued and fully paid and nonassessable by
Treasury and no shareholder of Treasury Class I has any preemptive right of
subscription or purchase in respect thereof.
10. CONDITIONS TO OBLIGATIONS OF TREASURY AND SLAM.
(a) That this Agreement shall have been adopted and the transactions
contemplated herein shall have been approved by the requisite vote of the
holders of the outstanding shares of beneficial interest of SLAM;
(b) That all 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 Blue Sky and securities authorities,
including "no action" positions of such federal or state authorities)
deemed necessary by Treasury or SLAM to permit consummation, in all
material respects, of the transactions contemplated hereby shall have been
obtained, except where failure to obtain any such consent, order, or permit
would not involve a risk of a material adverse effect on the assets or
properties of Treasury or SLAM, provided that either party hereto may for
itself waive any of such conditions;
(c) That all proceedings taken by either Fund in connection with the
transactions contemplated by this Agreement and all documents incidental
thereto shall be satisfactory in form and substance to it and its counsel,
Xxxxxxxxxxx & Xxxxxxxx LLP;
(d) That there shall not be any material litigation pending with respect
to the matters contemplated by this Agreement;
(e) That the Registration 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 Treasury or SLAM, threatened by the
Commission; and
(f) That Treasury and SLAM shall have received an opinion of Xxxxxxxxxxx &
Xxxxxxxx LLP satisfactory to Treasury and SLAM for federal income tax
purposes:
(i) The Reorganization will be a reorganization under section
368(a)(1)(C) of the Code, and SLAM and Treasury will each be parties to the
reorganization under section 368(b) of the Code;
(ii) No gain or loss will be recognized by SLAM upon the transfer of all
of its assets to Treasury in exchange solely for the Treasury Shares and
Treasury's assumption of SLAM's liabilities followed by the distribution of
those Treasury Shares to the shareholders of SLAM;
(iii) No gain or loss will be recognized by Treasury on the receipt of
SLAM's assets in exchange solely for the Treasury Shares and the assumption
of SLAM's liabilities;
(iv) The basis of SLAM's assets in the hands of Treasury will be the same
as the basis of such assets in SLAM's hands immediately prior to the
Reorganization;
(v) Treasury's holding period in the assets to be received from SLAM will
include SLAM's holding period in such assets;
(vi) A SLAM shareholder will recognize no gain or loss in the exchange of
his or her shares of beneficial interest in SLAM solely for the Treasury
Shares;
(vii) A SLAM shareholder's basis in the Treasury Shares to be received by
him or her will be the same as his or her basis in the SLAM shares
exchanged solely therefor;
(viii) A SLAM shareholder's holding period for his or her Treasury Shares
will be determined by including the period for which he or she held the
SLAM shares exchanged therefor, provided that those SLAM shares were held
as capital assets on the date of the Reorganization.
Notwithstanding anything herein to the contrary, neither of SLAM nor
Treasury may waive the conditions set forth in this subsection 10(f).
11. COVENANTS OF TREASURY AND SLAM.
(a) Treasury and SLAM each covenants to operate its respective business in
the ordinary course between the date hereof and the Closing Date, it being
understood that such ordinary course of business will include the payment
of customary dividends and distributions;
(b) SLAM covenants that it is not acquiring the Treasury Shares for the
purpose of making any distribution other than in accordance with the terms
of this Agreement;
(c) SLAM covenants that it will assist Treasury in obtaining such
information as Treasury reasonably requests concerning the beneficial
ownership of SLAM's shares; and
(d) SLAM covenants that its liquidation and termination will be effected
in the manner provided in its Trust Instrument in accordance with
applicable law and after the Closing Date, SLAM will not conduct any
business except in connection with its liquidation and termination.
12. TERMINATION; WAIVER.
Treasury and SLAM may terminate this Agreement by mutual agreement. In
addition, either Treasury or SLAM may at its option terminate this
Agreement at or prior to the Closing Date because:
(i) of a material breach by the other of any representation, warranty, or
agreement contained herein to be performed at or prior to the Closing Date;
or
(ii) a condition herein expressed to be precedent to the obligations of
the terminating party has not been met and it reasonably appears that it
will not or cannot be met.
In the event of any such termination, there shall be no liability for
damages on the part of SLAM or Treasury, or their respective Trustees or
officers.
13. SOLE AGREEMENT; AMENDMENTS; WAIVERS; SURVIVAL OF WARRANTIES.
(a) This Agreement supersedes all previous correspondence and oral
communications between the parties regarding the subject matter hereof,
constitutes the only understanding with respect to such subject matter, may
not be changed except by a letter of agreement signed by each party hereto,
and shall be construed in accordance with and governed by the laws of the
State of Delaware.
(b) This Agreement may be amended, modified, or supplemented in such
manner as may be mutually agreed upon in writing by the respective
President, any Vice President, or Treasurer of Treasury or SLAM; provided,
however, that following the shareholders' meeting called by SLAM pursuant
to Section 7 of this Agreement, no such amendment may have the effect of
changing the provisions for determining the number of Treasury Shares to be
paid to SLAM shareholders under this Agreement to the detriment of such
shareholders without their further approval.
(c) Either Fund may waive any condition to its obligations hereunder,
provided that such waiver does not have any material adverse effect on the
interests of such Fund's shareholders.
The representations, warranties, and covenants contained in the Agreement,
or in any document delivered pursuant hereto or in connection herewith,
shall survive the consummation of the transactions contemplated hereunder.
14. TRUST INSTRUMENTS.
A copy of the Trust Instrument of each Fund is on file with the Secretary
of the State of Delaware, and notice is hereby given that this instrument
is executed on behalf of the Trustees of each Fund as trustees and not
individually and that the obligations of each Fund under this instrument
are not binding upon any of such Fund's Trustees, officers, or shareholders
individually but are binding only upon the assets and property of such
Fund. Each Fund agrees that its obligations hereunder apply only to such
Fund and not to its shareholders individually or to the Trustees of such
Fund.
15. ASSIGNMENT.
This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, but no assignment or transfer
of any rights or obligations hereunder shall be made by any party without
the written consent of the other parties. 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.
This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by an appropriate officer.
SIGNATURE LINES OMITTED
