Exhibit 4
---------
FORM OF
XXXXX FARGO FUNDS TRUST
AND
GREAT PLAINS FUNDS
AGREEMENT AND
PLAN OF
REORGANIZATION
Dated as of May 15, 2000
This AGREEMENT AND PLAN OF REORGANIZATION (the "Plan") is made as of this
----
15th day of May, 2000, by and between Xxxxx Fargo Funds Trust ("Xxxxx Fargo
-----------
Funds"), a Delaware business trust, for itself and on behalf of its series
-----
listed in the Acquiring Funds column below (each an "Acquiring Fund") and Great
--------------
Plains Funds ("Great Plains"), a Massachusetts business trust, for itself and on
------------
behalf of its series listed in the Target Funds column below (each a "Target
------
Fund").
----
-------------------------------------------------------------------------------------------------------------------
Target Funds Acquiring Funds
-------------------------------------------------------------------------------------------------------------------
Equity Fund Equity Income Fund
-------------------------------------------------------------------------------------------------------------------
Premier Fund Small Cap Value Fund
-------------------------------------------------------------------------------------------------------------------
Intermediate Bond Fund Income Fund
-------------------------------------------------------------------------------------------------------------------
Tax-Free Bond Fund Nebraska Tax-Free Fund
-------------------------------------------------------------------------------------------------------------------
WHEREAS, Xxxxx Fargo Funds and Great Plains 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 each Acquiring Fund acquire the assets and
assume the liabilities of the Target Fund listed opposite the Acquiring Fund
("Corresponding Target") in exchange for Institutional shares of equal value of
--------------------
the Acquiring Fund and the distribution of the Institutional shares of the
Acquiring Fund to the shareholders of the Corresponding Target in connection
with the dissolution and liquidation of the Corresponding Target (each
transaction between an Acquiring Fund and its Corresponding Target, a
"Reorganization"); and
--------------
WHEREAS, the parties intend that each 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 each Acquiring Fund and its
----
Corresponding Target be a "party to a reorganization," within the meaning of
Section 368(b) of the Code, with respect to that Reorganization;
NOW, THEREFORE, in accordance with the mutual promises described herein,
the parties agree as follows:
1. Definitions.
-----------
The following terms shall have the following meanings:
1933 Act..................... The Securities Act of 1933, as amended.
--------
1934 Act..................... The Securities Exchange Act of 1934, as amended.
--------
Active Reorganization........ Each Reorganization set forth in the Active
--------------------- Reorganization Table on Schedule A.
Acquiring Class................ The class of an Acquiring Fund's shares that
--------------- Xxxxx Fargo Funds will issue to the shareholders
of the Corresponding Target Class as set forth
in the Corresponding Classes Table in Schedule
A.
1
Acquiring Fund Financial The audited financial statements of each
------------------------
Statements.................. Acquiring Fund for its most recently completed
---------- fiscal year and, if applicable, the unaudited
financial statements of each Acquiring Fund for
its most recently completed semi-annual period.
Assets....................... All property and assets of any kind and all
------ interests, rights, privileges and powers of or
attributable to a Fund, whether or not
determinable at the appropriate Effective Time
and wherever located. Assets include all cash,
cash equivalents, securities, claims (whether
absolute or contingent, Known or unknown,
accrued or unaccrued or conditional or
unmatured), contract rights and receivables
(including dividend and interest receivables)
owned by a Fund and any deferred or prepaid
expense shown as an asset on the Target Fund's
books.
Assets List.................. A list of securities and other Assets and Known
----------- Liabilities of or attributable to a Target Fund
as of the date provided to Xxxxx Fargo Funds.
Closing Date................. September 9, 2000, or such other dates as the
------------ parties may agree to in writing with respect to
a Reorganization.
Corresponding Target Class... The Target share class set forth opposite an
-------------------------- Acquiring Class in the Corresponding Classes
Table on Schedule A.
Effective Time............... 9:00 a.m. Eastern Time the business day
-------------- following the Closing Date of a Reorganization,
or such other time as the parties may agree to
in writing.
Fund......................... An Acquiring Fund or a Target Fund.
----
Holding Company Merger The date of the closing of the acquisition of
----------------------
Date........................ First Commerce Bancshares, Inc. by Xxxxx Fargo &
---- Company.
HSR Act...................... The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
------- of 1976, as amended.
Know, Known or Knowledge..... Known after reasonable inquiry.
------------------------
Liabilities.................. All liabilities of, allocated or attributable
----------- to, a Fund, whether Known or unknown, accrued or
unaccrued, absolute or contingent or conditional
or unmatured.
N-14 Registration Statement.. The Registration Statement of Xxxxx Fargo Funds
--------------------------- on Form N-14 under the 1940 Act that will
register the shares of the Acquiring
2
Funds to be issued in the Active Reorganizations
and will include the proxy materials necessary
for the shareholders of the Corresponding Target
Funds to approve the Reorganizations.
Material Agreements.......... The agreements set forth in Schedule B, as may
------------------- be amended from time to time.
Reorganization Documents..... Such bills of sale, assignments, and other
------------------------ instruments of transfer as Xxxxx Fargo Funds or
Great Plains deems desirable for a Target Fund
to transfer to an Acquiring Fund all right and
title to and interest in the Corresponding
Target Fund's Assets and Liabilities and for the
Acquiring Fund to assume the Corresponding
Target Fund's Assets and Liabilities.
Schedule A................... Schedule A to this Plan.
----------
Schedule B................... Schedule B to this Plan, as may be amended from
---------- time to time.
Shell Reorganization......... The Reorganization set forth in the Shell
-------------------- Reorganization Table on Schedule A.
Target Financial Statements.. The audited financial statements of each Target
--------------------------- Fund for its most recently completed fiscal year
and, if applicable, the unaudited financial
statements of each Target Fund for its most
recently completed semi-annual period.
Valuation Time............... The time on a Reorganization's Closing Date, the
-------------- business day immediately preceding the Closing
Date if the Closing Date is not a business day
or such other time as the parties may agree to
in writing, that Xxxxx Fargo Funds determines
the net asset value of the shares of the
Acquiring Fund and Great Plains determines the
net value of the Assets of or attributable to
the Corresponding Target Fund. Unless otherwise
agreed to in writing, the Valuation Time of a
Reorganization shall be at the time of day then
set forth in the Acquiring Fund's and Target
Fund's Registration Statement on Form N-1A as
the time of day at which net asset value is
calculated.
3
2. Regulatory Filings and Shareholder Action.
-----------------------------------------
(a) Xxxxx Fargo Funds shall promptly prepare and file the N-14
Registration Statement with the SEC. Xxxxx Fargo Funds also shall make any
other required filings including, without limitation, filings with state or
foreign securities regulatory authorities.
(b) Great Plains shall assist Xxxxx Fargo Funds in preparing the N-14
Registration Statement. Great Plains also shall make any other required
filings.
(c) The parties shall seek an order of the SEC, if appropriate,
providing them with any necessary relief from Section 17 of the 1940 Act to
permit them to consummate the transactions contemplated by this Plan.
(d) As soon as practicable after the effective date of the N-14
Registration Statement, Great Plains shall hold Target Fund shareholder meetings
to consider and approve this Plan, the Reorganizations and such other matters as
the Board of Trustees of Great Plains may determine.
3. Transfer of Target Fund Assets. Great Plains and Xxxxx Fargo Funds
------------------------------
shall take the following steps with respect to each Reorganization:
(a) On or prior to the Closing Date, Great Plains shall endeavor to pay
or make reasonable provision to pay out of the Target Fund's Assets all of the
Liabilities, expenses, costs and charges of or attributable to the Target Fund
that are Known to Great Plains and that are due and payable as of the Closing
Date.
(b) At the Effective Time, Great Plains shall assign, transfer, deliver
and convey all of the Target Fund's Assets to the Acquiring Fund. Xxxxx Fargo
Funds shall then accept the Target Fund's Assets and assume the Target Fund's
Liabilities such that at and after the Effective Time (i) all of the Target
Fund's Assets at or after the Effective Time shall become and be the Assets of
the Acquiring Fund and (ii) all of the Target Fund's Liabilities at the
Effective Time shall attach to the Acquiring Fund, enforceable against the
Acquiring Fund to the same extent as if initially incurred by the Acquiring
Fund.
(c) Within a reasonable time prior to the Closing Date (but in no event
until after the closing of the purchase of First Commerce Bancshares by Xxxxx
Fargo & Company), Great Plains shall provide, if requested, the Target Fund's
Assets List to Xxxxx Fargo Funds. The parties agree that the Target Fund may
sell any asset on the Assets List prior to the Target Fund's Effective Time.
After Great Plains provides the Assets List, the Target Fund will not acquire
any additional securities or permit to exist any encumbrances, rights,
restrictions or claims not reflected on the Assets List, without the prior
written approval of Xxxxx Fargo Funds, which approval shall not unreasonably be
withheld. Within a reasonable time after receipt of the Assets List and prior
to the Closing Date, Xxxxx Fargo Funds will advise Great Plains in writing of
any investments shown on the Assets List that Xxxxx Fargo Funds has reasonably
determined to be inconsistent with the investment objective, policies and
restrictions of the Acquiring Fund. Great Plains will seek to dispose of, any
such securities prior to the Closing Date to the extent
4
practicable and consistent with applicable legal requirements, including the
Target Fund's investment objectives, policies and restrictions. In addition, if
Xxxxx Fargo Funds determines that, as a result of the Reorganization, the
Acquiring Fund would own an aggregate amount of an investment that would exceed
a percentage limitation applicable to the Acquiring Fund, Xxxxx Fargo Funds will
advise Great Plains in writing of any such limitation and Great Plains shall
seek to dispose of a sufficient amount of such investment as may be necessary to
avoid exceeding the limitation as of the Effective Time, to the extent
practicable and consistent with applicable legal requirements, including the
Target Fund's investment objectives, policies and restrictions.
(d) Great Plains shall assign, transfer, deliver and convey each Target
Fund's Assets to the corresponding Acquiring Fund at the Reorganization's
Effective Time on the following bases:
(1) In exchange for the transfer of the Assets, Xxxxx Fargo Funds
shall simultaneously issue and deliver to the Target Fund full and
fractional shares of beneficial interest of each Acquiring Class. Xxxxx
Fargo Funds shall determine the number of shares of each Acquiring Class to
issue by dividing the net value of the Assets attributable to the
Corresponding Target Class by the net asset value of one Acquiring Class
share. Based on this calculation, Xxxxx Fargo Funds shall issue shares of
beneficial interest of each Acquiring Class with an aggregate net asset
value equal to the net value of the Assets of the Corresponding Target
Class.
(2) The parties shall determine the net asset value of the
Acquiring Fund shares to be delivered, and the net value of the Assets to
be conveyed, as of the Valuation Time substantially in accordance with
Xxxxx Fargo Funds current valuation procedures, a copy of which has been
furnished to Great Plains. The parties shall make all computations to the
fourth decimal place or such other decimal place as the parties may agree
to in writing.
(3) Great Plains shall cause its custodian to transfer the Assets
with good and marketable title to the custodian for the account of the
Acquiring Fund. Great Plains shall cause its custodian to transfer all
cash in the form of immediately available funds payable to the order of the
Xxxxx Fargo Funds custodian for the account of the Acquiring Fund. Great
Plains shall cause its custodian to transfer any Assets that were not
transferred to Xxxxx Fargo Funds' custodian at the Effective Time to Xxxxx
Fargo Funds custodian at the earliest practicable date thereafter.
(e) Promptly after the Closing Date, Great Plains will deliver to Xxxxx
Fargo Funds a Statement of Assets and Liabilities of each Target Fund as of the
Closing Date.
4. Dissolution and Liquidation of Target Funds, Registration of Shares
-------------------------------------------------------------------
and Access to Records. Great Plains and Xxxxx Fargo Funds also shall take the
---------------------
following steps for each Reorganization:
5
(a) At or as soon as reasonably practical after the Effective Time,
Great Plains shall dissolve and liquidate the Target Fund in accordance with
applicable law and its Declaration of Trust by transferring to shareholders of
record of each Corresponding Target Class full and fractional shares of
beneficial interest of the Acquiring Class equal in value to the shares of the
Corresponding Target Class held by the shareholder. Each shareholder also shall
have the right to receive any unpaid dividends or other distributions that Great
Plains declared with respect to the shareholder's Corresponding Target Class
shares before the Effective Time. Xxxxx Fargo Funds shall record on its books
the ownership by the shareholders of the respective Acquiring Fund shares; Great
Plains shall simultaneously redeem and cancel on its books all of the issued and
outstanding shares of each Corresponding Target Class. Xxxxx Fargo Funds shall
issue certificates representing the Acquiring Fund shares only if it is in
accordance with the then current Acquiring Fund's Declaration of Trust or
prospectus; provided, however, that Xxxxx Fargo Funds shall not issue
-------- -------
certificates representing Acquiring Fund shares to replace certificates
representing Target Fund shares unless the Target Fund share certificates are
first surrendered to Xxxxx Fargo Funds. Great Plains shall wind up the affairs
of the Target Fund and shall take all steps as are necessary and proper to
terminate the Target Fund as soon as is reasonably possible after the Effective
Time and in accordance with all applicable laws and regulations. The winding-up
of the affairs of a Target Fund shall not cause the affairs of any other Target
Fund to wind-up.
(b) If a former Target Fund shareholder requests a change in the
registration of the shareholder's Acquiring Fund shares to a person other than
the shareholder, Xxxxx Fargo Funds shall require the shareholder to (i) furnish
Xxxxx Fargo Funds an instrument of transfer properly endorsed, accompanied by
any required signature guarantees and otherwise in proper form for transfer;
(ii) if any of the shares are outstanding in certificated form, deliver to Xxxxx
Fargo Funds the certificate representing such shares; and (iii) pay to the
Acquiring Fund any customary transfer or other taxes required by reason of such
registration or establish to the reasonable satisfaction of Xxxxx Fargo Funds
that such tax has been paid or does not apply.
(c) At and after the Closing Date, Great Plains shall provide Xxxxx
Fargo Funds and its transfer agent with immediate access to: (i) all records
containing the names, addresses and taxpayer identification numbers of all of
the Target Fund shareholders and the number and percentage ownership of the
outstanding shares of the Corresponding Target Classes owned by each shareholder
as of the Effective Time and (ii) all original documentation (including all
applicable Internal Revenue Service forms, certificates, certifications and
correspondence) relating to the Target Fund shareholders' taxpayer
identification numbers and their liability for or exemption from back-up
withholding. Great Plains shall preserve and maintain, or shall direct its
service providers to preserve and maintain, records with respect to the Target
Fund as required by Section 31 of, and Rules 31a-1 and 31a-2 under, the 1940
Act.
5. Certain Representations, Warranties and Agreements of Great Plains.
------------------------------------------------------------------
Great Plains, on behalf of itself and, as appropriate, the Target Funds,
represents and warrants to, and agrees with, Xxxxx Fargo Funds as follows:
(a) Great Plains is a business trust duly created, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts. The Board
of Trustees of
6
Great Plains duly established and designated each Target Fund as a series of
Great Plains and each class of a Target Fund as a class of the Target Fund.
Great Plains 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) Great Plains has the power and all necessary federal, state and
local qualifications and authorizations to own all of its properties and Assets,
to carry on its business as now being conducted and described in its currently
effective Registration Statement on Form N-1A, to enter into this Plan and to
consummate the transactions contemplated herein.
(c) The Board of Trustees of Great Plains has duly authorized the
execution and delivery of the Plan and the transactions contemplated herein.
Duly authorized officers of Great Plains have executed and delivered the Plan.
The Plan represents a valid and binding contract, enforceable in accordance with
its terms, subject as to enforcement to bankruptcy, insolvency, bankruptcy
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 Plan does not, and, subject to
the approval of shareholders referred to in Section 2, the consummation of the
transactions contemplated by this Plan will not, violate Great Plains'
Declaration of Trust or By-Laws or any Material Agreement. Except for the
approval of Target Fund shareholders, Great Plains does not need to take any
other action to authorize its officers to effectuate this Plan and the
transactions contemplated herein.
(d) Each Target Fund has qualified as a regulated investment company
under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code, in respect
of each taxable year since the commencement of its operations and qualifies and
shall continue to qualify as a regulated investment company for its taxable year
ending upon its liquidation.
(e) The materials included within the N-14 Registration Statement when
filed with the SEC, when Part A of the N-14 Registration Statement is
distributed to shareholders, at the time of the Target Fund shareholder meetings
for the Reorganizations and at the Effective Time of each Reorganization,
insofar as they relate to Great Plains and each Target Fund: (i) shall comply in
all material respects with the applicable provisions of 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 in light of the circumstances under which
they were made.
(f) Great Plains has duly authorized and validly issued all of the
issued and outstanding shares of each Target Fund and all of the shares are
validly outstanding, 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. There are no outstanding options, warrants
or other rights to subscribe for or purchase any Target Fund shares, nor are
there any securities convertible into Target Fund shares.
(g) Great Plains shall operate the business of each Target Fund in the
ordinary course between the date hereof and the Fund's Effective Time or
Effective Times, it being
7
agreed that such ordinary course of business will include the transactions
described in Subsection 3(c), the declaration and payment of customary dividends
and distributions and any other dividends and distributions deemed advisable by
mutual agreement of Great Plains and Xxxxx Fargo Funds in anticipation of the
Fund's Reorganization or Reorganizations, and, in the case of Great Plains
Equity Fund, its receipt of all or substantially all of the assets, and
assumption of all or substantially all of the assets, of the Great Plains
International Equity Fund upon the liquidation or other reorganization of the
Great Plains International Equity Fund.
(h) At a Target Fund's Effective Time, the relevant Target Fund will
have good and marketable title to the Target Fund's Assets and full right, power
and authority to assign, transfer, deliver and convey such Assets.
(i) The Target Financial Statements, copies of which have been
previously delivered to Xxxxx Fargo Funds, fairly present the financial position
of each Target Fund as of the Fund's most recent fiscal year-end and the results
of the Fund's operations and changes in the Fund's net Assets for the periods
indicated. The Target Financial Statements have been prepared in accordance
with generally accepted accounting principles consistently applied.
(j) To the Knowledge of Great Plains, no Target Fund has any
Liabilities, whether or not determined or determinable, other than the
Liabilities disclosed or provided for in the Target Financial Statements or
Liabilities incurred in the ordinary course of business subsequent to the date
of the Assets List required by Section 3(c) of this Plan.
(k) Great Plains does not Know of any claims, actions, suits,
investigations or proceedings of any type pending or threatened against Great
Plains or any Target Fund or its Assets or businesses. Great Plains does not
Know of any facts that it currently has reason to believe are likely to form the
basis for the institution of any such claim, action, suit, investigation or
proceeding against Great Plains or any Target Fund. For purposes of this
provision, investment underperformance or negative investment performance shall
not be deemed to constitute such facts, provided all customary performance
disclosures have been made. Neither Great Plains nor any Target Fund is a party
to or subject to the provisions of any order, decree or judgment of any court or
governmental body that adversely affects, or is reasonably likely to adversely
affect, its financial condition, results of operations, business, properties or
Assets or its ability to consummate the transactions contemplated by the Plan.
(l) Except for contracts, agreements, franchises, licenses or permits
entered into or granted in the ordinary course of its business, in each case
under which no material default exists, Great Plains is not a party to or
subject to any material contract, debt instrument, employee benefit plan, lease,
franchise, license or permit of any kind or nature whatsoever on behalf of any
Target Fund.
(m) Great Plains has filed the federal income tax returns of each
Target Fund, copies of which have been previously delivered to Xxxxx Fargo
Funds, for all taxable years to and including the Fund's most recent taxable
year, and has paid all taxes payable pursuant to such returns. To the Knowledge
of Great Plains, no such return is currently under audit and no assessment has
been asserted with respect to such returns. Great Plains will file the federal
8
income tax returns of each Target Fund for its next taxable year on or before
their due date, as the same may be properly extended.
(n) Since the date of the Target Financial Statements, there has been
no material adverse change in the financial condition, results of operations,
business, properties or Assets of any Target Fund. For purposes of this
provision, investment underperformance, negative investment performance or net
redemptions shall not be deemed to constitute such facts, provided all customary
performance disclosures have been made.
6. Certain Representations, Warranties and Agreements of Xxxxx Fargo
-----------------------------------------------------------------
Funds. Xxxxx Fargo Funds, on behalf of itself and, as appropriate, the
-----
Acquiring Funds, represents and warrants to, and agrees with Great Plains as
follows:
(a) Xxxxx Fargo Funds is a business trust duly created, validly
existing and in good standing under the laws of the State of Delaware. The Board
of Trustees of Xxxxx Fargo Funds duly established and designated each Acquiring
Fund as a series of Xxxxx Fargo Funds and each Acquiring Class as a class of the
Acquiring Fund. Xxxxx Fargo Funds is registered with the SEC as an open-end
management investment company under the 1940 Act.
(b) Xxxxx Fargo Funds has the power and all necessary federal, state
and local qualifications and authorizations to own all of its properties and
Assets, to carry on its business as described in its Registration Statement on
Form N-1A as filed with the SEC, to enter into this Plan and to consummate the
transactions contemplated herein.
(c) The Board of Trustees of Xxxxx Fargo Funds has duly authorized
execution and delivery of the Plan and the transactions contemplated herein.
Duly authorized officers of Xxxxx Fargo Funds have executed and delivered the
Plan. The Plan 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 Plan does not, and the
consummation of the transactions contemplated by this Plan will not, violate the
Declaration of Trust of Xxxxx Fargo Funds or any Material Agreement. Xxxxx
Fargo Funds does not need to take any other action to authorize its officers to
effectuate the Plan and the transactions contemplated herein.
(d) Each Acquiring Fund has qualified as a regulated investment company
under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code in respect of
its current taxable year and any prior taxable year.
(e) The N-14 Registration Statement, when filed with the SEC, when Part
A of the N-14 Registration Statement is distributed to shareholders, at the time
of the Target Fund shareholder meetings for the Reorganizations and at the
Effective Time of each Reorganization, insofar as it relates to Xxxxx Fargo
Funds, the Acquiring Funds or the Acquiring Classes: (i) shall comply in all
material respects with the applicable provisions of 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
9
stated therein or necessary to make the statements made therein not misleading
in light of the circumstances in which they were made.
(f) Xxxxx Fargo Funds shall duly authorize the Acquiring Fund shares to
be issued and delivered to each Corresponding Target Fund as of the Target
Fund's Effective Time. When issued and delivered, the Acquiring Fund shares
shall have been registered for sale under the Securities Act of 1933 and shall
be duly and validly issued, fully paid and non-assessable, and no shareholder of
any Acquiring Fund shall have any preemptive right of subscription or purchase
in respect of them. There are no outstanding options, warrants or other rights
to subscribe for or purchase any Acquiring Fund shares, nor are there any
securities convertible into Acquiring Fund shares.
(g) Xxxxx Fargo Funds does not Know of any claims, actions, suits,
investigations or proceedings of any type pending or threatened against Xxxxx
Fargo Funds or any Acquiring Fund or its Assets or businesses. There are no
facts that Xxxxx Fargo Funds currently has reason to believe are likely to form
the basis for the institution of any such claim, action, suit, investigation or
proceeding against Xxxxx Fargo Funds or any Acquiring Fund. For purposes of
this provision, investment underperformance or negative investment performance
shall not be deemed to constitute such facts, provided all customary performance
disclosures have been made. Neither Xxxxx Fargo Funds nor any Acquiring Fund is
a party to or subject to the provisions of any order, decree or judgment of any
court or governmental body that adversely affects, or is reasonably likely to
adversely affect, its financial condition, results of operations, business,
properties or Assets or its ability to consummate the transactions contemplated
by this Plan.
(h) Except for contracts, agreements, franchises, licenses or permits
entered into or granted in the ordinary course of its business, in each case
under which no material default exists, Xxxxx Fargo Funds is not a party to or
subject to any material contract, debt instrument, employee benefit plan, lease,
franchise, license or permit of any kind or nature whatsoever on behalf of any
Acquiring Fund.
(i) Xxxxx Fargo Funds has filed the federal income tax returns of each
Acquiring Fund, copies of which have been previously delivered to Great Plains,
for all taxable years to and including the Fund's most recent taxable year, and
has paid all taxes payable pursuant to such returns. To the Knowledge of Xxxxx
Fargo Funds, no such return is currently under audit and no assessment has been
asserted with respect to any such return. Xxxxx Fargo Funds shall file the
federal income tax returns of each Acquiring Fund for the Fund's current taxable
year on or before their due date, as the same may be properly extended.
(j) Since the date of the Acquiring Fund Financial Statements, there
has been no material adverse change in the financial condition, business,
properties or Assets of any Acquiring Fund. For purposes of this provision,
investment underperformance, negative investment performance or net redemptions
shall not be deemed to constitute such facts, provided all customary performance
disclosures have been made.
10
(k) The Acquiring Fund Financial Statements, copies of which have been
previously delivered to Great Plains, fairly present the financial position of
each Acquiring Fund as of the Fund's most recent fiscal year-end and the results
of the Fund's operations and changes in the Fund's net assets for the periods
indicated. The Acquiring Fund Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied.
(l) To the Knowledge of Xxxxx Fargo Funds, no Acquiring Fund has any
Liabilities, whether or not determined or determinable, other than Liabilities
disclosed or provided for in the Acquiring Fund Financial Statements or
Liabilities incurred in the ordinary course of business.
(m) Xxxxx Fargo Funds shall operate the business of each Acquiring Fund
in the ordinary course between the date hereof and the Effective Time, it being
agreed that such ordinary course of business will include the declaration and
payment of customary dividends and distributions.
(n) Except to the extent permitted to do otherwise pursuant to an
exemptive order of the SEC, for a period of three years from the Holding Company
Merger Date, at least 75% of the members of the board of trustees of Xxxxx Fargo
Funds shall not be interested persons of an investment adviser to Xxxxx Fargo
Funds or an investment adviser to Great Plains. For a period of two years
beginning after the Holding Company Merger Date, no "unfair burden" within the
meaning of Section 15(f) of the 1940 Act will be imposed on any Acquiring Fund.
7. Conditions to Great Plains Obligations. The obligations of Great
--------------------------------------
Plains with respect to each Reorganization shall be subject to the following
conditions precedent:
(a) The shareholders of the Target Fund to which the Reorganization
relates shall have approved the Reorganization in the manner required by the
Declaration of Trust of Great Plains and applicable law. If that Target Fund's
shareholders fail to approve the Reorganization, that failure shall release
Great Plains of its obligations under this Plan only with respect to that
Reorganization and not any other Reorganization.
(b) Xxxxx Fargo Funds shall have duly executed and delivered the
Acquiring Funds' Reorganization Documents to Great Plains.
(c) All representations and warranties of Xxxxx Fargo Funds made in
this Plan that apply to the Reorganization shall be true and correct in all
material respects as if made at and as of the Effective Time.
(d) Xxxxx Fargo Funds shall have delivered to Great Plains a
certificate dated as of the Closing Date and executed in its name by its
Secretary or Treasurer, in a form reasonably satisfactory to Great Plains,
stating that the representations and warranties of Xxxxx Fargo Funds in this
Plan that apply to the Reorganization are true and correct in all material
respects at and as of the Valuation Time and that it has approved the Target
Fund's Assets as being consistent with its investment objectives, policies and
restrictions and that the Target Fund's Assets may otherwise be lawfully
acquired by the Acquiring Fund.
11
(e) Great Plains shall have received an opinion of Xxxxxxxx & Xxxxxxxx
LLP, as counsel to Xxxxx Fargo Funds, in form and substance reasonably
satisfactory to Great Plains and dated as of the Closing Date, substantially to
the effect that:
(1) Xxxxx Fargo Funds is a business trust duly created, validly
existing and in good standing under the laws of the State of Delaware and
is an open-end, management investment company registered under the 1940
Act;
(2) the shares of the Acquiring Fund to be delivered as provided
for by this Plan are duly authorized and upon delivery will be validly
issued, fully paid and non-assessable by Xxxxx Fargo Funds, provided that
the payments for transfer taxes by shareholders provided for in Section
4(b) of this Plan shall not be deemed to render the shares issued
assessable;
(3) the execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate the Declaration of
Trust of Xxxxx Fargo Funds or any Material Agreement to which Xxxxx Fargo
Funds is a party or by which it is bound; and
(4) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by Xxxxx Fargo Funds of the Reorganization, or for the
execution and delivery of Xxxxx Fargo Funds' Reorganization Documents,
except those that have been obtained under the 1933 Act, the 1934 Act, the
1940 Act and the rules and regulations under those Acts or that may be
required under state securities laws, the HSR Act or subsequent to the
Effective Time or when the failure to obtain the consent, approval,
authorization or order would not have a material adverse effect on the
operation of the Acquiring Fund.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (iv) define the word "Knowledge" and related terms to
mean the Knowledge of attorneys then with such firm who have devoted substantive
attention to matters directly related to this Plan and (v) rely on certificates
of officers or trustees of Xxxxx Fargo Funds.
(f) Great Plains shall have received an opinion of Xxxxxxxx, Xxxxxx &
Finger P.A., as special Delaware counsel to Xxxxx Fargo Funds, in form and
substance reasonably satisfactory to Great Plains and dated as of the Closing
Date, substantially to the effect that this Plan has been duly authorized,
executed and delivered by Xxxxx Fargo Funds, and, assuming due authorization,
execution and delivery of this Plan by Great Plains on behalf of the Target
Fund, represents a legal, valid and binding contract, enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance and transfer and similar laws relating to or affecting
creditors' rights generally and court decisions with respect thereto, and
further subject to the application of equitable principles in any proceeding
whether at law or in equity or with respect to the enforcement of provisions of
the Plan and the effect of judicial
12
decisions which have held that certain provisions are unenforceable when their
enforcement would violate an implied covenant of good faith and fair dealing or
would be commercially unreasonable or when default under the Plan is not
material. In rendering such opinion, such counsel may (i) make assumptions
regarding the authenticity, genuineness and/or conformity of documents and
copies thereof without independent verification thereof, (ii) limit such opinion
to applicable state law, and (iii) rely on certificates of officers or trustees
of Xxxxx Fargo Funds.
(g) Great Plains shall have received an opinion or adequate assurances
from [ ], as the case may be, addressed to Great Plains and Xxxxx
-----------
Fargo Funds in form and substance reasonably satisfactory to them, and dated as
of the Closing Date, with respect to the tax matters specified in Subsection
8(g).
(h) Great Plains shall have received (i) a memorandum addressed to
Great Plains and Xxxxx Fargo Funds, in form and substance reasonably
satisfactory to them, prepared by Xxxxxxxx & Xxxxxxxx LLP, or another person
agreed to in writing by the parties, concerning compliance with each relevant
jurisdiction's securities laws in connection with Xxxxx Fargo Funds' issuance of
Acquiring Fund shares.
(i) The N-14 Registration Statement shall have become effective under
the 1933 Act as to the Acquiring Fund's shares and the SEC shall not have
instituted or, to the Knowledge of Xxxxx Fargo Funds, contemplated instituting,
any stop order suspending the effectiveness of the N-14 Registration Statement.
(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, the
Reorganization.
(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 Reorganization under Section 25(c) of the 1940 Act.
(l) Xxxxx Fargo Funds shall have performed and complied in all material
respects with each of its agreements and covenants required by this Plan to be
performed or complied with by it prior to or at the Reorganization's Valuation
Time and Effective Time.
(m) Great Plains shall have received from Xxxxx Fargo Funds a duly
executed instrument whereby the Acquiring Fund assumes all of the Liabilities of
or attributable to the Target Fund.
(n) If the Reorganization is an Active Reorganization, Great Plains
shall have received a letter dated as of the Closing Date from KPMG LLP
addressed to Great Plains and Xxxxx Fargo Funds in form and substance reasonably
satisfactory to them to the effect that on the basis of limited procedures as
agreed to by Great Plains and Xxxxx Fargo Funds and described in such letter
(but not an examination in accordance with generally accepted auditing
standards):
13
(1) nothing came to their attention that caused them to believe
that the relevant unaudited pro forma financial statements included in the
N-14 Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the relevant pro forma adjustments have not properly
been applied to the historical amounts in the compilation of those amounts;
(2) the data used in the calculation of the current and pro forma
expense ratios of the Target Fund and the Acquiring Fund appearing in the
N-14 Registration Statement, including the proxy materials, agree with the
underlying accounting records of the Target Fund and the Acquiring Fund, as
appropriate, or with written estimates provided by officers of Great Plains
or Xxxxx Fargo Funds, as appropriate, having responsibility for financial
and reporting matters; and
(3) the information relating to the Acquiring Fund and the Target
Fund appearing in the N-14 Registration Statement that is expressed in
dollars or percentages of dollars has been obtained from the accounting
records of the Acquiring Fund or the Target Fund, as appropriate, or from
schedules prepared by officers of Great Plains or Xxxxx Fargo Funds, as
appropriate, having responsibility for financial and reporting matters and
such information is in agreement with such records or schedules or with
computations made therefrom.
(o) If the Reorganization is a Shell Reorganization, Great Plains shall
have received a letter dated as of the Closing Date from KPMG LLP addressed to
Great Plains and Xxxxx Fargo Funds in form and substance reasonably satisfactory
to them to the effect that on the basis of limited procedures as agreed to by
Great Plains and Xxxxx Fargo Funds and described in such letter (but not an
examination in accordance with generally accepted auditing standards):
(1) the data used in the calculation of any expense ratios of the
Target Fund and the Acquiring Fund appearing in the N-14 Registration
Statement agree with the underlying accounting records of the Target Fund
and the Acquiring Fund, as appropriate, or with written estimates provided
by officers of Great Plains or Xxxxx Fargo Funds, as appropriate, having
responsibility for financial and reporting matters; and
(2) the information relating to the Acquiring Fund and the Target
Fund appearing in the N-14 Registration Statement that is expressed in
dollars or percentages of dollars, if any, has been obtained from the
accounting records of the Acquiring Fund or the Target Fund, as
appropriate, or from schedules prepared by officers of Great Plains or
Xxxxx Fargo Funds, as appropriate, having responsibility for financial and
reporting matters and such information is in agreement with such records or
schedules or with computations made therefrom.
(p) If the Reorganization is an Active Reorganization, except to the
extent prohibited by Rule 19b-1 under the 1940 Act, the Acquiring Fund shall
have declared a dividend or dividends that, together with all previous such
dividends, shall have the effect of distributing to the Acquiring Fund
shareholders substantially all investment company taxable income of or
14
attributable to the Acquiring Fund earned prior to the Closing Date and
substantially all net capital gain of or attributable to the Acquiring Fund
realized prior to such date.
(q) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
(r) The parties shall have received any necessary order of the SEC
exempting the parties from the prohibitions of Section 17 of the 1940 Act or any
similar relief necessary to permit the Reorganization.
8. Conditions to Xxxxx Fargo Funds Obligations. The obligations of Xxxxx
-------------------------------------------
Fargo Funds with respect to each Reorganization shall be subject to the
following conditions precedent:
(a) The shareholders of the Target Fund to which the Reorganization
relates shall have approved the Reorganization in the manner required by the
Declaration of Trust of Great Plains and applicable law. If that Target Fund's
shareholders fail to approve the Reorganization, that failure shall release
Xxxxx Fargo Funds of its obligations under this Plan only with respect to that
Reorganization, and not any other Reorganization.
(b) Great Plains shall have duly executed and delivered the Target Fund
Reorganization Documents to Xxxxx Fargo Funds.
(c) All representations and warranties of Great Plains made in this
Plan that apply to the Reorganization shall be true and correct in all material
respects as if made at and as of the Valuation Time and the Effective Time.
(d) Great Plains shall have delivered to Xxxxx Fargo Funds a
certificate dated as of the Closing Date and executed in its name by its
Treasurer or Secretary, in a form reasonably satisfactory to Xxxxx Fargo Funds,
stating that the representations and warranties of Great Plains in this Plan
that apply to the Reorganization are true and correct at and as of the Valuation
Time.
(e) Xxxxx Fargo Funds shall have received an opinion of Xxxx, Xxxx &
Xxxxx LLC, as counsel to Great Plains, in form and substance reasonably
satisfactory to Xxxxx Fargo Funds and dated as of the Closing Date,
substantially to the effect that:
(1) Great Plains is a business trust duly created, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts
and is an open-end, management investment company registered under the 1940
Act;
(2) this Plan has been duly authorized, executed and delivered by
Great Plains;
(3) the execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate the Declaration of
Trust or By-Laws of Great Plains or any Material Agreement to which Great
Plains is a party or by which it is bound; and
15
(4) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by Great Plains of the Reorganization, or the
execution and delivery of the Great Plains Reorganization Documents, except
those that have been obtained under the 1933 Act, the 1934 Act, the 1940
Act and the rules and regulations under those Acts, or that may be required
under state securities laws, the HSR Act or subsequent to the Effective
Time or when the failure to obtain the consent, approval, authorization or
order would not have a material adverse effect on the operation of the
Target Fund.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (iv) define the word "Knowledge" and related terms to
mean the Knowledge of attorneys then with such firm who have devoted substantive
attention to matters directly related to this Plan and (v) rely on certificates
of officers or trustees of Great Plains.
(f) Xxxxx Fargo Funds shall have received an opinion of Xxxx and Xxxx
LLP, as special Massachusetts counsel to Great Plains, that, assuming due
authorization, execution and delivery of this Plan by Xxxxx Fargo Funds on
behalf of the Acquiring Funds, it represents a legal, valid and binding
contract, enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance and transfer and
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto, and further subject to the application of
equitable principles in any proceeding, whether at law or in equity or with
respect to the enforcement of provisions of the Plan and the effect of judicial
decisions which have held that certain provisions are unenforceable when their
enforcement would violate an implied covenant of good faith and fair dealing or
would be commercially unreasonable or when default under the Plan is not
material.
(g) Xxxxx Fargo Funds shall have received an opinion of [ ]
----------
addressed to Great Plains and Xxxxx Fargo Funds in form and substance reasonably
satisfactory to them, based upon representations made in certificates provided
by Great Plains and Xxxxx Fargo Funds, their affiliates and/or principal
shareholders and dated as of the Closing Date, substantially to the effect that,
for federal income tax purposes:
(1) The Reorganization will constitute a "reorganization" within
the meaning of Section 368(a). Each Acquiring Fund and the corresponding
Target Fund will be a "party to a reorganization." Section 368(b).
(2) Each Target Fund's shareholders will recognize no gain or
loss on their receipt of voting shares of the corresponding Acquiring Fund
in exchange for their voting shares of the Target Fund pursuant to the
Reorganization. Section 354(a)(1).
(3) No Target Fund will recognize gain or loss on the transfer of
all of its assets to the corresponding Acquiring Fund solely in exchange
for voting shares of the
16
Acquiring Fund and the assumption by the Acquiring Fund of certain Target
Fund liabilities pursuant to the Reorganization. Sections 357(a) and
361(a).
(4) No Target Fund will recognize gain or loss on its distribution
of voting shares of the corresponding Acquiring Fund to its shareholders
pursuant to the liquidation of the Target Fund. Section 361(c).
(5) No Acquiring Fund will recognize gain or loss on its
acquisition of all of the assets of the corresponding Target Fund solely in
exchange for voting shares of such Acquiring Fund and the assumption by
such Acquiring Fund of the Target Fund's liabilities. Section 1032(a).
(6) The basis of each of the voting shares of an Acquiring Fund
received by the corresponding Target Fund's shareholders pursuant to the
Reorganization will equal the basis of the voting shares of the Target Fund
surrendered in exchange therefor. Section 358(a)(1).
(7) The holding period of the voting shares of an Acquiring Fund
received by the corresponding Target Fund's shareholders pursuant to the
Reorganization will include the period that the shareholders held the
voting shares of the Target Fund exchanged therefor, provided that the
shareholder held such shares as a capital asset on the date of the
Reorganization. Section 1223(1).
(8) Each Acquiring Fund's basis in the assets of the corresponding
Target Fund received pursuant to the Reorganization will equal the Target
Fund's basis in the assets immediately before the Reorganization. Section
362(b).
(9) Each Acquiring Fund's holding period in the Target Fund assets
received pursuant to the Reorganization will include the period during
which the corresponding Target Fund held the assets. Section 1223(2).
(10) Each Acquiring Fund will succeed to and take into account the
items of the corresponding Target Fund described in Section 381(c),
including the earnings and profits, or deficit in earnings and profits, of
the corresponding Target Fund as of the date of the Reorganization. Each
Acquiring Fund will take these items into account subject to the conditions
and limitations specified in Sections 381, 382, 383 and 384 and applicable
regulations thereunder.
(h) The N-14 Registration Statement shall have become effective under
the 1933 Act as to the Acquiring Fund's shares and no stop order suspending the
effectiveness of the N-14 Registration Statement shall have been instituted or,
to the Knowledge of Xxxxx Fargo Funds, contemplated by the SEC.
(i) 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 the
Reorganization.
17
(j) 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 Reorganization under Section 25(c) of the 1940 Act.
(k) Great Plains shall have performed and complied in all material
respects with each of its agreements and covenants required by this Plan to be
performed or complied with by it prior to or at the Reorganization's Valuation
Time and Effective Time.
(l) Xxxxx Fargo Funds shall have received a letter from KPMG LLP
addressed to Great Plains and Xxxxx Fargo Funds as described in Subsection 7(n)
or 7(o), as appropriate.
(m) If the Reorganization is an Active Reorganization, except to the
extent prohibited by Rule 19b-1 under the 1940 Act, the Target Fund shall have
declared a dividend or dividends that, together with all previous such
dividends, shall have the effect of distributing to the Target Fund shareholders
substantially all investment company taxable income of or attributable to the
Target Fund earned prior to the Closing Date and substantially all net capital
gain of or attributable to the Target Fund realized prior to such date.
(n) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
(o) The parties shall have received any necessary order of the SEC
exempting the parties from the prohibitions of Section 17 of the 1940 Act or any
similar relief necessary to permit the Reorganization.
(p) Xxxxx Fargo Funds and Xxxxx Fargo Bank, N.A. shall have received an
order of the SEC exempting the Xxxxx Fargo Funds from Section 15(f)(1)(A) of the
1940 Act.
9. Survival of Representations and Warranties. The representations and
------------------------------------------
warranties of the parties hereto shall survive the completion of the
transactions contemplated herein.
10. Termination of Plan. A majority of a party's Board of Trustees may
-------------------
terminate this Plan with respect to any Acquiring Fund or Target Fund, as
appropriate if: (i) the party's conditions precedent set forth in Sections 7 or
8, as appropriate, are not satisfied on the Closing Date; (ii) it becomes
reasonably apparent to the party's Board of Trustees that the other party will
not be able to satisfy such conditions precedent on the Closing Date; or (iii)
the party's Board of Trustees determines that the consummation of the applicable
Reorganization is not in the best interests of shareholders and gives notice to
the other party. The termination of this Plan with respect to an Acquiring Fund
and its Corresponding Target Fund shall not affect the survival of the Plan with
respect to any other Acquiring Fund or Target Fund.
11. Governing Law. This Plan and the transactions contemplated hereby
-------------
shall be governed, construed and enforced in accordance with the laws of the
State of Delaware, except to the extent preempted by federal law, without regard
to conflicts of law principles.
18
12. Brokerage Fees. Each party represents and warrants that there are no
--------------
brokers or finders entitled to receive any payments in connection with the
transactions provided for in this Plan.
13. Amendments. The parties may, by agreement in writing authorized by
----------
their respective Boards of Trustees, amend this Plan with respect to any
Reorganization at any time before or after the Target Fund's shareholders
approve the Reorganization. However, after a Target Fund's shareholders approve
a Reorganization, the parties may not amend this Plan in a manner that
materially alters the obligations of either party with respect to that
Reorganization. The parties shall not deem this Section to preclude them from
changing the Closing Date or the Effective Time of a Reorganization by mutual
agreement.
14. Waivers. At any time prior to the Closing Date, either party may by
-------
written instrument signed by it (i) waive the effect of any inaccuracies in the
representations and warranties made to it contained herein and (ii) waive
compliance with any of the agreements, covenants or conditions made for its
benefit contained herein. The parties agree that any waiver shall apply only to
the particular inaccuracy or requirement for compliance waived, and not any
other or future inaccuracy or lack of compliance.
15. Indemnification of Trustees. Xxxxx Fargo Funds shall indemnify,
---------------------------
defend and hold harmless Great Plains, its officers, trustees, employees and
agents against all losses, claims, demands, liabilities and expenses, including
reasonable legal and other expenses incurred in defending claims or liabilities,
whether or not resulting in any liability of Great Plains, its officers,
trustees, employees or agents, arising out of our based on (i) any material
breach by Xxxxx Fargo Funds of any of its representations, warranties or
agreements set forth in this Agreement, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any registration statement on
Form N-1A or Form N-14 for Xxxxx Fargo Funds that is used in connection with the
Reorganization. Xxxxx Fargo Funds also agrees that it will assume all
liabilities and obligations of Great Plains relating to any obligation of Great
Plains to indemnify its current and former Trustees and officers, acting in
their capacities as such, to the fullest extent permitted by law and Great
Plains' Declaration of Trust, as in effect as of the date of this Plan. Xxxxx
Fargo Funds also agrees that all rights to indemnification and all limitations
of liability existing in favor of the current and former Trustees and officers,
acting in their capacities as such, under the Great Plains Declaration of Trust
as in effect as of the date of this Plan shall survive the Reorganizations and
shall continue in full force and effect, without any amendment thereto, and
shall constitute rights which may be asserted against Xxxxx Fargo Funds, its
successors and assigns.
16. Cooperation and Further Assurances. Each party will cooperate with
----------------------------------
the other in fulfilling its obligations under this Plan and will provide such
information and documentation as is reasonably requested by the other in
carrying out this Plan's terms. Each party will provide such further assurances
concerning the performance of obligations under this Plan and the consummation
of the Reorganizations as the other shall deem necessary, advisable or
appropriate.
17. Updating of N-14 Registration Statement. If at any time prior to the
---------------------------------------
Effective Time of a Reorganization a party becomes aware of any untrue statement
of material fact or
19
omission to state a material fact required to be stated therein or necessary to
make the statements made not misleading in light of the circumstances under
which they were made in the N-14 Registration Statement, as appropriate, the
party discovering the item shall notify the other party and the parties shall
cooperate in promptly preparing, filing and clearing with the SEC and, if
appropriate, distributing to shareholders appropriate disclosure with respect to
the item.
18. Limitation on Liabilities. The obligations of Great Plains, Xxxxx
-------------------------
Fargo Funds and each Fund shall not bind any of the Trustees, shareholders,
nominees, officers, agents, or employees of Great Plains or Xxxxx Fargo Funds
personally, but shall bind only the Assets and property of the Acquiring Funds
and Target Funds. The execution and delivery of this Plan by the parties'
officers shall not 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 Assets
and the property of the Acquiring Funds or Target Funds, as appropriate.
19. Termination of Great Plains. If the parties complete every
---------------------------
Reorganization, Great Plains shall terminate its registration under the 1940 Act
and dissolve.
20
20. Notices. Any notice, report, statement, certificate or demand
-------
required or permitted by any provision of this Plan shall be in writing and
shall be given by prepaid telegraph, telecopy, certified mail or overnight
express courier to:
For Great Plains:
Xxxxxxx Xxxxx
First Commerce Investors
610 NBC Center
0000 X Xxxxxx
Xxxxxxx, XX 00000
With a copy to:
Xxxxxxx X. Xxxxx
Xxxx, Xxxx & Xxxxx
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
For Xxxxx Fargo Funds:
Xxxxxxx X. Xxxxx, President
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
With a copy to:
C. Xxxxx Xxxxxxx, Secretary
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
21. General. This Plan supersedes all prior agreements between the parties
-------
(written or oral), is intended as a complete and exclusive statement of the
terms of the agreement between the parties and may not be changed or terminated
orally. The parties may execute this Plan in counterparts, which shall be
considered one and the same agreement, and shall become effective when the
counterparts have been executed by and delivered to both parties. The headings
contained in this Plan are for reference only and shall not affect in any way
the meaning or interpretation of this Plan. Nothing in this Plan, expressed or
implied, confers upon any other
21
person any rights or remedies under or by reason of this Plan. Neither party
may assign or transfer any right or obligation under this Plan without the
written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers designated below to execute this Plan as of the date first written
above.
XXXXX FARGO FUNDS TRUST
ATTEST:
By:
----------------------------- ---------------------------
Name: C. Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
GREAT PLAINS FUNDS
ATTEST:
By:
----------------------------- ---------------------------
Name: Name:
Title: Secretary Title: President
22
SCHEDULE A
I. Corresponding Classes Table:
---------------------------
Corresponding Target Classes Acquiring Fund Classes
-------------------------------------------------------------------------------------------------------------------
Equity Fund (single class) Equity Income Fund, Class I
-------------------------------------------------------------------------------------------------------------------
Premier Fund (single class) Small Cap Value Fund, Class I
-------------------------------------------------------------------------------------------------------------------
Intermediate Bond Fund (single class) Income Fund, Class I
-------------------------------------------------------------------------------------------------------------------
Tax-Free Bond Fund (single class) Nebraska Tax-Free Fund, Class I
-------------------------------------------------------------------------------------------------------------------
II. Active Reorganization Table:
---------------------------
-------------------------------------------------------------------------------------------------------------------
Corresponding Target Funds Acquiring Funds
-------------------------------------------------------------------------------------------------------------------
Equity Fund Equity Income Fund
-------------------------------------------------------------------------------------------------------------------
Premier Fund Small Cap Value Fund
-------------------------------------------------------------------------------------------------------------------
Intermediate Bond Fund Income Fund
-------------------------------------------------------------------------------------------------------------------
III. Shell Reorganization Table:
--------------------------
-------------------------------------------------------------------------------------------------------------------
Target Fund Acquiring Fund
-------------------------------------------------------------------------------------------------------------------
Tax-Free Bond Fund Nebraska Tax-Free Fund
-------------------------------------------------------------------------------------------------------------------
A-1
SCHEDULE B
MATERIAL AGREEMENTS
The following agreements shall be Material Agreements for Great Plains:
Investment Advisory Agreement between First Commerce Investors, Inc. and Great
Plains Funds dated September 1, 1997.
Distributor's Contract between Edgewood Services, Inc. and Great Plains Funds
dated September 1, 1997.
Custody Agreement between National Bank of Commerce and Great Plains Funds dated
September 24, 1997.
Sub-Custody Agreement among Great Plains Funds, National Bank of Commerce and
The Northern Trust Company dated September 24, 1997.
Agreement for Fund Accounting Services, Administration Services and Transfer
Agency Services between Federated Services Company and Great Plains Funds dated
September 1, 1997.
Distribution Plan of Great Plains Funds dated September 1, 1997.
Loan Agreement and Revolving Credit Facility dated June 10, 1998 by and between
Great Plains Funds and National Bank of Commerce Trust & Savings Association.
Rule 12b-1 Plan approved by the Board of Great Plains Funds on August 6, 1999.
The following agreements shall be Material Agreements for Xxxxx Fargo Funds:
Investment Advisory Contract between Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo Bank")
----------------
and Xxxxx Fargo Funds Trust, dated November 8, 1999.
Sub-Advisory Contract between Barclays Global Fund Advisors, Xxxxx Fargo Bank
and Xxxxx Fargo Funds Trust, dated November 8, 1999.
Sub-Advisory Contract between Galliard Capital Management, Inc., Xxxxx Fargo
Bank and Xxxxx Fargo Funds Trust, dated November 8, 1999.
Sub-Advisory Contract between Peregrine Capital Management, Inc., Xxxxx Fargo
Bank and Xxxxx Fargo Funds Trust, dated November 8, 1999.
Sub-Advisory Contract between Xxxxxxxx Capital Management, Inc., Xxxxx Fargo
Bank and Xxxxx Fargo Funds Trust, dated November 8, 1999.
B-2
Sub-Advisory Contract between Xxxxx Asset Management, L.P., Xxxxx Fargo Bank
and Xxxxx Fargo Funds Trust, dated November 8, 1999.
Sub-Advisory Contract between Xxxxx Capital Management, Incorporated, Xxxxx
Fargo Bank and Xxxxx Fargo Funds Trust, dated November 8, 1999.
Distribution Agreement between Xxxxxxxx, Inc. and Xxxxx Fargo Funds Trust,
dated November 8, 1999.
Custody Agreement between Barclays Global Investors, N.A. and Xxxxx Fargo Funds
Trust, dated November 8, 1999.
Custody Agreement between Norwest Bank Minnesota, N.A. and Xxxxx Fargo Funds
Trust, dated November 8, 1999.
Administration Agreement between Xxxxx Fargo Bank and Xxxxx Fargo Funds Trust
dated November 8, 1999.
Fund Accounting Agreement between Forum Accounting Services, LLC and Xxxxx Fargo
Funds Trust, dated November 8, 1999.
Interim Fund Accounting Agreement between Xxxxx Fargo Bank and Xxxxx Fargo Funds
Trust, dated November 8, 1999.
Transfer Agency and Service Agreement between Boston Financial Data Services,
Inc. and Xxxxx Fargo Funds Trust, dated November 8, 1999.
Shareholder Servicing Plan approved by the Board of Xxxxx Fargo Funds Trust
on March 26, 1999, as amended October 28, 1999 and May 9, 2000.
Shareholder Servicing Agreement approved by the Board of Xxxxx Fargo Funds Trust
on March 26, 1999.
Rule 12b-1 Plan approved by the Board of Xxxxx Fargo Funds Trust on March 26,
1999, as amended May 9, 2000.
Rule 18f-3 Plan approved by the Board of Xxxxx Fargo Funds trust on March 26,
1999, as amended October 28, 1999 and May 9, 2000.
Fee and Expense Agreement between Xxxxx Fargo Funds Trust and Xxxxx Fargo Bank,
dated November 8, 1999, as amended May 9, 2000.
B-2
