AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as of
December 17, 2004, by and between CDC Nvest Star Growth Fund (the "Acquired
Fund"), a series of CDC Nvest Funds Trust I, a Massachusetts business trust (the
"Trust"), and Xxxxxx Xxxxxx Growth Fund (the "Acquiring Fund"), a series of
Xxxxxx Xxxxxx Funds II, a Massachusetts business trust (the "Xxxxxx Xxxxxx
Trust").
PLAN OF REORGANIZATION
(a) The Acquired Fund shall sell, assign, convey, transfer and deliver to
the Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets, subject to liabilities. In consideration therefor, the
Acquiring Fund shall, on the Exchange Date, assume all of the liabilities of the
Acquired Fund existing at the Valuation Time (as defined in Section 3(c)) and
deliver to the Acquired Fund a number of full and fractional Class A, Class B
and Class C shares of beneficial interest of the Acquiring Fund (the "Merger
Shares") having for each such class an aggregate net asset value equal to the
value of the assets of the Acquired Fund attributable to such class transferred
to the Acquiring Fund on such date less the value of the liabilities of the
Acquired Fund attributable to such class assumed by the Acquiring Fund on that
date. It is intended that the reorganization described in this Agreement shall
be a reorganization within the meaning of Section 368 of the Internal Revenue
Code of 1986, as amended and in effect from time to time (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of
this Plan of Reorganization, the Acquired Fund shall distribute the Merger
Shares in complete liquidation to its shareholders of record as of the Exchange
Date, each shareholder being entitled to receive that proportion of each class
(consisting in the case of each shareholder of Merger Shares of the same
designated class as the shares of the Acquired Fund which that shareholder
holds) which the number of shares of that class of the Acquired Fund held by
such shareholder bears to the total number of shares of that class of the
Acquired Fund outstanding on such date. Certificates representing the Merger
Shares will not be issued. All issued and outstanding shares of the Acquired
Fund will simultaneously be cancelled on the books of the Acquired Fund.
(c) As soon as practicable following the liquidation of the Acquired Fund
as aforesaid, the Acquired Fund shall be dissolved pursuant to the provisions of
the Agreement and Declaration of Trust of the Trust, as amended, and applicable
law, and its legal existence terminated. Any reporting responsibility of the
Acquired Fund is and shall remain the responsibility of the Acquired Fund up to
and including the Exchange Date and, if applicable, such later date on which the
Acquired Fund is dissolved.
AGREEMENT
The Xxxxxx Xxxxxx Trust, on behalf of the Acquiring Fund, and the Trust, on
behalf of the Acquired Fund, agree as follows:
1. Representations, Warranties and Agreements of the Acquiring Fund. The
Xxxxxx Xxxxxx Trust, and not the individual Trustees and officers thereof, on
behalf of the Acquiring Fund, represents and warrants to and agrees with the
Acquired Fund that:
a. The Acquiring Fund is a series of shares of the Xxxxxx Xxxxxx
Trust, a Massachusetts business trust duly established and validly existing
under the laws of the Commonwealth of Massachusetts, and has power to own
all of its properties and assets and to carry out its obligations under
this Agreement. The Xxxxxx Xxxxxx Trust is qualified as a foreign
association in every jurisdiction where required, except to the extent that
failure to so qualify would not have a material adverse effect on the
Xxxxxx Xxxxxx Trust. Each of the Xxxxxx Xxxxxx Trust and the Acquiring Fund
has all necessary federal, state and local authorizations to carry on its
business as now being conducted and to carry out this Agreement.
b. The Xxxxxx Xxxxxx Trust is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end management
investment company, and such registration has not been revoked or rescinded
and is in full force and effect.
c. A statement of assets and liabilities, statement of operations,
statement of changes in net assets and a portfolio of investments
(indicating their market values) of the Acquiring Fund as of and for the
period ended September 30, 2004 have been furnished to the Acquired Fund
prior to the Exchange Date. Such statement of assets and liabilities and
schedule fairly present the financial position of the Acquiring Fund as of
such date and said statements of operations and changes in net assets
fairly reflect the results of its operations and changes in net assets for
the periods covered thereby in conformity with generally accepted
accounting principles.
d. Since September 30, 2004 there has not been any material adverse
change in the Acquiring Fund's financial condition, assets, liabilities or
business (other than changes occurring in the ordinary course of business),
or any incurrence by the Acquiring Fund of indebtedness. For the purposes
of this subparagraph (d), distributions of net investment income and net
realized capital gains, changes in portfolio securities, changes in the
market value of portfolio securities or net redemptions shall be deemed to
be in the ordinary course of business.
e. The Xxxxxx Xxxxxx Trust is not in violation in any material respect
of any provisions of its Agreement and Declaration of Trust or By-Laws or
of any agreement, indenture, instrument, contract, lease or other
undertaking to which the Xxxxxx Xxxxxx Trust is a party or by which the
Acquiring Fund is bound, and
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the execution, delivery and performance of this Agreement will not result
in any such violation.
f. The prospectuses and statement of additional information of the
Acquiring Fund, each dated February 1, 2004 and each as from time to time
amended or supplemented (collectively, the "Acquiring Fund Prospectus"),
previously furnished to the Acquired Fund, (i) conform in all material
respects to the applicable requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and (ii) did not as of such date and do not
contain, with respect to the Xxxxxx Xxxxxx Trust or the Acquiring Fund, any
untrue statements 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.
g. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the Xxxxxx Xxxxxx Trust or the Acquiring
Fund, threatened against the Xxxxxx Xxxxxx Trust or the Acquiring Fund,
which assert liability on the part of the Xxxxxx Xxxxxx Trust or the
Acquiring Fund. Neither the Xxxxxx Xxxxxx Trust nor the Acquiring Fund
knows of any facts which might form the basis for the institution of such
proceedings and is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body which
materially and adversely affects its business or its ability to consummate
the transactions herein contemplated.
h. The Acquiring Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that will be shown as belonging
to it on its statement of assets and liabilities as of September 30, 2004
and those incurred in the ordinary course of business as an investment
company since such date. Prior to the Exchange Date, the Acquiring Fund
will quantify and reflect on its balance sheet all of its material known
liabilities and will advise the Acquired Fund of all material liabilities,
contingent or otherwise, incurred by it subsequent to September 30, 2004
whether or not incurred in the ordinary course of business.
i. As of the Exchange Date, the Acquiring Fund will have filed all
federal and other tax returns and reports which, to the knowledge of the
officers of the Xxxxxx Xxxxxx Trust, are required to be filed by the
Acquiring Fund and has paid or will pay all federal and other taxes shown
to be due on said returns or on any assessments received by the Acquiring
Fund. All tax liabilities of the Acquiring Fund have been adequately
provided for on its books, and no tax deficiency or liability of the
Acquiring Fund has been asserted, and no question with respect thereto has
been raised or is under audit, by the Internal Revenue Service or by any
state, local or other tax authority for taxes in excess of those already
paid.
j. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Acquiring
Fund of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1940 Act and state securities or blue sky
laws (which term
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as used herein shall include the laws of the District of Columbia and of
Puerto Rico).
k. There are no material contracts outstanding to which the Acquiring
Fund is a party, other than as are or will be disclosed in the Registration
Statement or the Acquired Fund Proxy Statement (each as defined in Section
l(r) herein) or the Acquiring Fund Prospectus.
l. To the best of its knowledge, all of the issued and outstanding
shares of beneficial interest of the Acquiring Fund have been offered for
sale and sold in conformity with all applicable federal and state
securities laws (including any applicable exemptions therefrom), or the
Acquiring Fund has taken any action necessary to remedy any prior failure
to have offered for sale and sold such shares in conformity with such laws.
m. The Acquiring Fund qualifies and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company"
under Subchapter M of the Code.
n. The issuance of the Merger Shares pursuant to this Agreement will
be in compliance with all applicable federal and state securities laws.
o. The Merger Shares to be issued to the Acquired Fund have been duly
authorized and, when issued and delivered pursuant to this Agreement, will
be legally and validly issued Class A, Class B and Class C shares of
beneficial interest in the Acquiring Fund and will be fully paid and,
except as set forth in the Registration Statement, nonassessable by the
Acquiring Fund, and no shareholder of the Acquiring Fund will have any
preemptive right of subscription or purchase in respect thereof.
p. All issued and outstanding shares of the Acquiring Fund are, and at
the Exchange Date will be, duly and validly issued and outstanding, fully
paid and, except as set forth in the Registration Statement, nonassessable
by the Acquiring Fund. The Acquiring Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase any of the
Acquiring Fund shares, nor is there outstanding any security convertible
into any of the Acquiring Fund shares, except that Class B shares of the
Acquiring Fund are convertible into Class A shares of the Acquiring Fund in
the manner and on the terms described in the Acquiring Fund Prospectus and
the Registration Statement.
q. The Acquiring Fund's investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the Acquiring
Fund Prospectus and the Registration Statement.
r. The registration statement on Form N-14 (the "Registration
Statement") filed with the Securities and Exchange Commission (the
"Commission") by the Xxxxxx Xxxxxx Trust on behalf of the Acquiring Fund
and relating to the Merger Shares issuable hereunder, and the proxy
statement of the
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Acquired Fund relating to the meeting of the Acquired Fund's shareholders
referred to in Section 7 herein (together with the documents incorporated
therein by reference, the "Acquired Fund Proxy Statement"), on the
effective date of the Registration Statement (i) complied 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) did 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 Exchange Date, the prospectus which is contained in
the Registration Statement, as amended or supplemented by any amendments or
supplements filed with the Commission by the Xxxxxx Xxxxxx Trust, and the
Acquired Fund Proxy Statement did not and 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; provided, however, that none of the representations and
warranties in this subparagraph (r) shall apply to statements in or
omissions from the Registration Statement or the Acquired Fund Proxy
Statement made in reliance upon and in conformity with information
furnished by the Acquired Fund for use in the Registration Statement or the
Acquired Fund Proxy Statement.
2. Representations, Warranties and Agreements of the Acquired Fund. The
Trust, and not the individual Trustees and officers thereof, on behalf of the
Acquired Fund, represents and warrants to and agrees with the Acquiring Fund
that:
a. The Acquired Fund is a series of shares of the Trust, a
Massachusetts business trust duly established and validly existing under
the laws of the Commonwealth of Massachusetts, and has power to own all of
its properties and assets and to carry out this Agreement. The Trust is
qualified as a foreign association in every jurisdiction where required,
except to the extent that failure to so qualify would not have a material
adverse effect on the Trust. Each of the Trust and the Acquired Fund has
all necessary federal, state and local authorizations to own all of its
properties and assets and to carry on its business as now being conducted
and to carry out this Agreement.
b. The Trust is registered under the 1940 Act as an open-end
management investment company, and such registration has not been revoked
or rescinded and is in full force and effect.
c. A statement of assets and liabilities, statement of operations,
statement of changes in net assets and a schedule of investments
(indicating their market values) of the Acquired Fund as of and for the
period ended December 31, 2003 and a statement of assets and liabilities,
statement of operations, statement of changes in net assets and a schedule
of investments for the six months ended June 30, 2004 have been furnished
to the Acquiring Fund prior to the Exchange Date. Such statement of assets
and liabilities and schedule fairly present the financial position of the
Acquired Fund as of such date and said statements of operations and changes
in net assets fairly reflect the results of its operations and changes in
net assets for the periods covered thereby in conformity with generally
accepted accounting principles.
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d. Since June 30, 2004 there has not been any material adverse change
in the Acquired Fund's financial condition, assets, liabilities or business
(other than changes occurring in the ordinary course of business), or any
incurrence by the Acquired Fund of indebtedness, except as disclosed in
writing to the Acquiring Fund. For the purposes of this subsection (d) and
of Section 9(a) of this Agreement, distributions of net investment income
and net realized capital gains, changes in portfolio securities, changes in
the market value of portfolio securities or net redemptions shall be deemed
to be in the ordinary course of business.
e. The Trust is not in violation in any material respect of any
provision of its Agreement and Declaration of Trust or By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to
which the Trust is a party or by which the Acquired Fund is bound, and the
execution, delivery and performance of this Agreement will not result in
any such violation.
f. The prospectuses and the statement of additional information of the
Acquired Fund, each dated May 1, 2004 and each as from time to time amended
or supplemented (collectively, the "Acquired Fund Prospectus"), previously
furnished to the Acquiring Fund (i) conform in all material respects to the
applicable requirements of the 1933 Act and (ii) did not contain as of such
date and do not contain, with respect to the Trust and the Acquired Fund,
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.
g. The Acquired Fund's investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the Acquired
Fund Prospectus.
h. At the Exchange Date, the Trust, on behalf of the Acquired Fund,
will have good and marketable title to its assets to be transferred to the
Acquiring Fund pursuant to this Agreement and will have full right, power
and authority to sell, assign, transfer and deliver the Investments (as
defined below) and any other assets and liabilities of the Acquired Fund to
be transferred to the Acquiring Fund pursuant to this Agreement. At the
Exchange Date, subject only to the delivery of the Investments and any such
other assets and liabilities and payment therefor as contemplated by this
Agreement, the Acquiring Fund will acquire good and marketable title
thereto and will acquire the Investments and any such other assets and
liabilities subject to no encumbrances, liens or security interests
whatsoever and without any restrictions upon the transfer thereof, except
as previously disclosed in writing to the Acquiring Fund.
i. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the Trust or the Acquired Fund, threatened
against the Trust or the Acquired Fund, which assert liability on the part
of the Trust or the Acquired Fund. The Acquired Fund knows of no facts
which might form the basis for the institution of such proceedings and is
not a party to or subject to the provisions of any order, decree or
judgment of any court or
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governmental body which materially and adversely affects its business or
its ability to consummate the transactions herein contemplated.
j. There are no material contracts outstanding to which the Acquired
Fund is a party, other than as are or will be disclosed in Acquired Fund
Prospectus, the registration statement on Form N-1A of the Acquired Fund
(the "Acquired Fund Registration Statement") or the Acquired Fund Proxy
Statement.
k. The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that are shown on the Acquired
Fund's statement of assets and liabilities as of June 30, 2004 referred to
above and those incurred in the ordinary course of its business as an
investment company since such date. Prior to the Exchange Date, the
Acquired Fund will quantify and reflect on its balance sheet all of its
material known liabilities and will advise the Acquiring Fund of all
material liabilities, contingent or otherwise, incurred by it subsequent to
June 30, 2004 whether or not incurred in the ordinary course of business.
l. As of the Exchange Date, the Acquired Fund will have filed all
required federal and other tax returns and reports which, to the knowledge
of the Trust's officers, are required to have been filed by the Acquired
Fund by such date and has paid or will pay all federal and other taxes
shown to be due on said returns or on any assessments received by the
Acquired Fund. All tax liabilities of the Acquired Fund have been
adequately provided for on its books, and no tax deficiency or liability of
the Acquired Fund has been asserted, and no question with respect thereto
has been raised or is under audit, by the Internal Revenue Service or by
any state, local or other tax authority for taxes in excess of those
already paid.
m. The Trust has and, at the Exchange Date, the Trust, on behalf of
the Acquired Fund, will have, full right, power and authority to sell,
assign, transfer and deliver the Investments (as defined below) and any
other assets and liabilities of the Acquired Fund to be transferred to the
Acquiring Fund pursuant to this Agreement. At the Exchange Date, subject
only to the delivery of the Investments and any such other assets and
liabilities as contemplated by this Agreement, the Acquiring Fund will
acquire the Investments and any such other assets and liabilities subject
to no encumbrances, liens or security interests whatsoever and without any
restrictions upon the transfer thereof. As used in this Agreement, the term
"Investments" shall mean the Acquired Fund's investments shown on the
schedule of its investments as of June 30, 2004 referred to in Section 2(c)
hereof, as modified by such changes in the portfolio as the Acquired Fund
shall make, and changes resulting from stock dividends, stock split-ups,
mergers and similar corporate actions through the Exchange Date.
n. No registration under the 1933 Act of any of the Investments would
be required if they were, as of the time of such transfer, the subject of a
public distribution by either of the Acquiring Fund or the Acquired Fund,
except as previously disclosed to the Acquiring Fund by the Acquired Fund.
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o. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Acquired
Fund of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, 1934 Act, the 1940 Act or state securities
or blue sky laws.
p. The Acquired Fund qualifies and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company"
under Subchapter M of the Code.
q. At the Exchange Date, the Acquired Fund will have sold such of its
assets, if any, as are necessary to assure that, after giving effect to the
acquisition of the assets of the Acquired Fund pursuant to this Agreement,
the Acquiring Fund will remain a "diversified company" within the meaning
of Section 5(b)(1) of the 1940 Act and in compliance with such other
mandatory investment restrictions as are set forth in the Acquired Fund
Prospectus, as amended through the Exchange Date.
r. To the best of its knowledge, all of the issued and outstanding
shares of beneficial interest of the Acquired Fund have been offered for
sale and sold in conformity with all applicable federal and state
securities laws (including any applicable exemptions therefrom), or the
Acquired Fund has taken any action necessary to remedy any prior failure to
have offered for sale and sold such shares in conformity with such laws.
s. All issued and outstanding shares of the Acquired Fund are, and at
the Exchange Date will be, duly and validly issued and outstanding, fully
paid and, except as set forth in the registration statement of the Trust,
non-assessable by the Acquired Fund. The Acquired Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any of the Acquired Fund shares, nor is there outstanding any
security convertible into any of the Acquired Fund shares.
t. The Acquired Fund Proxy Statement, on the date of its filing (i)
complied 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)
did 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 Exchange Date, the Acquired
Fund Proxy Statement did not and 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;
provided, however, that none of the representations and warranties in this
subsection shall apply to statements in or omissions from the Acquired Fund
Proxy Statement made in reliance upon and in conformity with information
furnished by the Acquiring Fund for use in the Acquired Fund Proxy
Statement.
u. The Trust has no material contracts or other commitments (other
than this Agreement and such other contracts as may be entered into in the
ordinary course of its business) which if terminated may result in material
liability
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to the Acquired Fund (or to the Acquiring Fund as a result of the
transactions contemplated by this Agreement) or under which (whether or not
terminated) any material payments for periods subsequent to the Exchange
Date will be due from the Acquired Fund (or from the Acquiring Fund as a
result of the transactions contemplated by this Agreement).
v. The information provided by the Acquired Fund for use in the
Registration Statement and Proxy Statement was accurate and complete in all
material respects when supplied and as of the effective date of the
Registration Statement was accurate and complete in all material respects
and complied with federal securities and other laws and regulations
applicable thereto in all material respects.
3. Reorganization.
a. Subject to the requisite approval of the shareholders of the
Acquired Fund and to the other terms and conditions contained herein
(including the Acquired Fund's obligation (if any) to distribute to its
shareholders all of its investment company taxable income and net capital
gain as described in Section 8(j) hereof), the Acquired Fund agrees to
sell, assign, convey, transfer and deliver to the Acquiring Fund, and the
Acquiring Fund agrees to acquire from the Acquired Fund, on the Exchange
Date all of the Investments and all of the cash and other properties and
assets of the Acquired Fund, whether accrued or contingent (including cash
received by the Acquired Fund upon the liquidation of the Acquired Fund of
any Acquired Fund investments designated by the Acquiring Fund as being
unsuitable for it to acquire pursuant to the investment restrictions of the
Acquiring Fund set forth in the Acquiring Fund Prospectus and the
Registration Statement), in exchange for that number of shares of
beneficial interest of the Acquiring Fund provided for in Section 4 and the
assumption by the Acquiring Fund of all of the liabilities of the Acquired
Fund, whether accrued or contingent, existing at the Valuation Time except
for the Acquired Fund's liabilities, if any, arising in connection with
this Agreement. The Acquired Fund will, as soon as practicable after the
Exchange Date, distribute in complete liquidation all of the Merger Shares
received by it to the shareholders of the Acquired Fund in exchange for
their shares of the Acquired Fund.
b. The Acquired Fund will pay or cause to be paid to the Acquiring
Fund any interest, cash or such dividends, rights and other payments
received by it on or after the Exchange Date with respect to the
Investments and other properties and assets of the Acquired Fund, whether
accrued or contingent, received by it on or after the Exchange Date. Any
such distribution shall be deemed included in the assets transferred to the
Acquiring Fund at the Exchange Date and shall not be separately valued
unless the securities in respect of which such distribution is made shall
have gone "ex" such distribution prior to the Valuation Time, in which case
any such distribution which remains unpaid at the Exchange Date shall be
included in the determination of the value of the assets of the Acquired
Fund acquired by the Acquiring Fund.
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c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange
Date or such other time as may be mutually agreed upon in writing by the
parties hereto (the "Valuation Time").
4. Exchange Date; Valuation Time. On the Exchange Date, the Acquiring Fund
will deliver to the Acquired Fund a number of full and fractional Merger Shares
having an aggregate net asset value equal, in the case of each such class of
Merger Shares, to the value of the assets of the Acquired Fund attributable to
the same class of shares of the Acquired Fund on such date less the value of the
liabilities attributable to the same class of shares of the Acquired Fund
assumed by the Acquiring Fund on that date, determined as hereinafter provided
in this Section 4.
a. The net asset value of the Merger Shares to be delivered to the
Acquired Fund, the value of the assets attributable to the shares of the
Acquired Fund, and the value of the liabilities of the Acquired Fund to be
assumed by the Acquiring Fund, shall in each case be determined as of the
Valuation Time.
b. The net asset value of the Merger Shares shall be computed in the
manner set forth in the Acquiring Fund Prospectus. The value of the assets
and liabilities of the Acquired Fund shall be determined by the Acquiring
Fund, in cooperation with the Acquired Fund, pursuant to procedures which
the Acquiring Fund would use in determining the fair market value of the
Acquiring Fund's assets and liabilities.
c. No adjustment shall be made in the net asset value of either the
Acquired Fund or the Acquiring Fund to take into account differences in
realized and unrealized gains and losses.
d. The Acquiring Fund shall issue the Merger Shares to the Acquired
Fund. The Acquired Fund shall promptly distribute the Merger Shares to the
shareholders of the Acquired Fund by establishing open accounts for each
Acquired Fund shareholder on the transfer records of the Acquiring Fund.
Certificates representing Merger Shares will not be issued to Acquired Fund
shareholders.
e. The Acquiring Fund shall assume all liabilities of the Acquired
Fund, whether accrued or contingent, in connection with the acquisition of
assets and subsequent liquidation and dissolution of the Acquired Fund or
otherwise, except for the Acquired Fund's liabilities, if any, arising
pursuant to this Agreement.
5. Expenses, Fees, etc.
a. Except as otherwise provided in this Section 5, IXIS Asset
Management Advisors, L.P., by countersigning this Agreement, agrees that it
will bear any and all costs and expenses of the transaction incurred by the
Acquiring Fund and the Acquired Fund; provided, however, that the Acquiring
Fund and the Acquired Fund will each pay any brokerage commissions, dealer
xxxx-ups and similar expenses ("Portfolio Expenses") that it may incur in
connection with the
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purchases or sale of portfolio securities; and provided further that, the
Acquiring Fund will pay all governmental fees required in connection with
the registration or qualification of the Merger Shares under applicable
state and federal laws.
b. In the event the transactions contemplated by this Agreement are
not consummated, then IXIS Asset Management Advisors, L.P. agrees that it
shall bear all of the costs and expenses (other than Portfolio Expenses)
incurred by both the Acquiring Fund and the Acquired Fund in connection
with such transactions.
c. Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not consummated,
neither the Acquiring Fund nor the Acquired Fund shall be liable to the
other for any damages resulting therefrom, including, without limitation,
consequential damages, except as specifically set forth above.
d. Notwithstanding any of the foregoing, costs and expenses will in
any event be paid by the party directly incurring them if and to the extent
that the payment by another party of such costs and expenses would result
in the disqualification of such party as a "regulated investment company"
within the meaning of Subchapter M of the Code.
6. Exchange Date. Delivery of the assets of the Acquired Fund to be
transferred, assumption of the liabilities of the Acquired Fund to be assumed,
and delivery of the Merger Shares to be issued shall be made at the offices of
IXIS Asset Management Services Company, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
as of the close of business on December 17, 2004 , or at such other time and
date agreed to by the Acquiring Fund and the Acquired Fund, the date and time
upon which such delivery is to take place being referred to herein as the
"Exchange Date."
7. Meeting of Shareholders; Dissolution.
a. The Trust, on behalf of the Acquired Fund, shall call a meeting of
the Acquired Fund's shareholders to take place after the effective date of
the Registration Statement for the purpose of considering the approval of
this Agreement.
b. The Acquired Fund agrees that the liquidation and dissolution of
the Acquired Fund will be effected in the manner provided in the Agreement
and Declaration of Trust of the Trust in accordance with applicable law and
that, after the Exchange Date, the Acquired Fund shall not conduct any
business except in connection with its liquidation and dissolution.
c. The Acquiring Fund shall, after the preparation and delivery to the
Acquiring Fund by the Acquired Fund of a preliminary version of the
Acquired Fund Proxy Statement information, which shall be satisfactory to
the Acquiring Fund and to Ropes & Xxxx LLP for inclusion in the
Registration Statement, file the Registration Statement with the
Commission. Each of the Acquired Fund and the Acquiring Fund shall
cooperate with the other, and each will furnish to the
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other the information relating to itself required by the 1933 Act, the 1934
Act and the 1940 Act and the rules and regulations thereunder to be set
forth in the Registration Statement.
8. Conditions to the Acquiring Fund's Obligations. The obligations of the
Acquiring Fund hereunder shall be subject to the following conditions:
a. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement of the Acquired Fund's assets and liabilities, with values
determined as provided in Section 4 of this Agreement, together with a list
of Investments with their respective tax costs, all as of the Valuation
Time, certified on the Acquired Fund's behalf by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of the Trust, and a
certificate of both such officers, dated the Exchange Date, that there has
been no material adverse change in the financial position of the Acquired
Fund since June 30, 2004, other than changes in the Investments and other
assets and properties since that date or changes in the market value of the
Investments and other assets of the Acquired Fund, or changes due to
dividends paid, and a certificate of both such officers representing and
warranting that there are no known liabilities, contingent or otherwise, of
the Acquired Fund required to be reflected on a balance sheet (including
notes thereto) in accordance with generally accepted accounting principles
as of June 30, 2004 and in the Acquired Fund's statement of assets and
liabilities as of the Valuation Time.
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of the Trust
certifying that as of the Exchange Date all representations and warranties
of the Acquired Fund made in this Agreement are true and correct in all
material respects as if made at and as of such date and the Acquired Fund
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.
c. That the Acquired Fund shall have delivered to the Acquiring Fund a
letter from the independent accountants of the Trust, dated the Exchange
Date, stating that such firm has employed certain procedures whereby it has
obtained schedules of the tax provisions and qualifying tests for regulated
investment companies and that, in the course of such procedures, nothing
came to their attention which caused them to believe that the Acquired Fund
(i) would not qualify as a regulated investment company for federal, state,
local or other income tax purposes or (ii) would owe any federal, state or
local income tax or excise tax, in each case for both the taxable year
ended December 31, 2003, and for any taxable year or period beginning on
January 1, 2004 and ending on or prior to the Exchange Date (the latter
period being based on unaudited data).
d. That there shall not be any material litigation pending with
respect to the matters contemplated by this Agreement.
-12-
e. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP, counsel to the Acquired Fund, dated the Exchange Date, to the
effect that (i) the Trust is a Massachusetts business trust duly formed and
validly existing under the laws of the Commonwealth of Massachusetts, and
the Acquired Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940 Act and the Agreement
and Declaration of Trust and By-Laws of the Trust; (ii) this Agreement has
been duly authorized, executed and delivered by the Trust on behalf of the
Acquired Fund and, assuming that the Registration Statement, the Acquired
Fund Prospectus and the Acquired Fund Proxy Statement comply with the 1933
Act, the 1934 Act and the 1940 Act and assuming due authorization,
execution and delivery of this Agreement by the Xxxxxx Xxxxxx Trust on
behalf of the Acquiring Fund, is a valid and binding obligation of the
Trust enforceable against the Acquired Fund in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and
other equitable principles; (iii) the Trust, on behalf of the Acquired
Fund, has power to sell, assign, convey, transfer and deliver the assets
contemplated hereby and, upon consummation of the transactions contemplated
hereby in accordance with the terms of this Agreement, the Acquired Fund
will have duly sold, assigned, conveyed, transferred and delivered such
assets to the Acquiring Fund; (iv) the execution and delivery of this
Agreement did not, and the consummation of the transactions contemplated
hereby will not, violate the Agreement and Declaration of Trust or By-Laws
of the Trust, or any provision of any agreement known to such counsel to
which the Trust or the Acquired Fund is a party or by which it is bound or,
to the knowledge of such counsel, result in the acceleration of any penalty
under any agreement, judgment or decree to which the Trust or the Acquired
Fund is party or by which either of them is bound, it being understood that
with respect to investment restrictions contained in the Agreement and
Declaration of Trust, By-Laws or then-current prospectuses or statement of
additional information of the Trust, such counsel may rely upon a
certificate of an officer of the Trust; (v) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Trust on
behalf of the Acquired Fund of the transactions contemplated hereby, except
such as have been obtained under the 1933 Act, the 1934 Act and the 1940
Act and such as may be required under state securities or blue sky laws;
(vi) the Trust is registered with the Commission as an investment company
under the 1940 Act; and (vii) to the knowledge of such counsel, no
litigation or administrative proceeding or investigation of or before any
court or governmental body is presently pending or threatened as to the
Trust or the Acquired Fund or any of their properties or assets that
challenges or seeks to prohibit, restrain or enjoin the transactions
contemplated by this Agreement. Such opinion may state that such counsel
does not express any opinion or belief as to the financial statements or
other financial data, or as to the information relating to the Acquiring
Fund, contained in the Acquired Fund Proxy Statement or the Registration
Statement, and that such opinion is solely for the benefit of the Acquiring
Fund, its Trustees and its officers.
-13-
f. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP, dated the Exchange Date (which opinion would be based upon
certain factual representations and subject to certain qualifications), to
the effect that, on the basis of the existing provisions of the Code,
current administrative rules and court decisions, for federal income tax
purposes: (i) the transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a) of the
Code, and the Acquiring Fund and the Acquired Fund will each be "a party to
the reorganization" within the meaning of Section 368(b) of the Code; (ii)
under Section 1032 of the Code, no gain or loss will be recognized by the
Acquiring Fund upon receipt of the Investments transferred to the Acquiring
Fund pursuant to this Agreement in exchange for the Merger Shares and the
assumption by the Acquiring Fund of the liabilities of the Acquired Fund as
contemplated in Section 3 hereof; (iii) under Section 362(b) of the Code,
the basis to the Acquiring Fund of the Investments will be the same as the
basis of the Investments in the hands of the Acquired Fund immediately
prior to such exchange; (iv) under Section 1223(2) of the Code, the
Acquiring Fund's holding periods with respect to the Investments will
include the respective periods for which the Investments were held by the
Acquired Fund; and (v) the Acquiring Fund will succeed to and take into
account the items of the Acquired Fund described in Section 381(c) of the
Code, subject to the conditions and limitations specified in Sections 381,
382, 383 and 384 of the Code and the regulations thereunder.
g. That the assets of the Acquired Fund to be acquired by the
Acquiring Fund will include no assets which the Acquiring Fund, by reason
of charter limitations or of investment restrictions disclosed in the
Acquiring Fund Prospectus or the Registration Statement as in effect on the
Exchange Date, may not properly acquire.
h. That the Trust shall have received from the Commission and any
relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act, the
1940 Act and any applicable state securities or blue sky laws in connection
with the transactions contemplated hereby, and that all such orders shall
be in full force and effect.
i. That all actions taken by the Trust on behalf of the Acquired Fund
in connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance to
the Acquiring Fund and Ropes & Xxxx LLP.
j. That, prior to the Exchange Date, the Acquired Fund shall have
declared a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to the shareholders of the
Acquired Fund (i) all of the excess of (x) the Acquired Fund's investment
income excludable from gross income under Section 103 of the Code over (y)
the Acquired Fund's deductions disallowed under Sections 265 and 171 of the
Code, (ii) all of the Acquired Fund's investment company taxable income as
defined in Section 852 of the Code, computed in each case without regard to
any deduction for dividends paid, and (iii) all of the Acquired Fund's net
capital gain realized (after reduction
-14-
for any capital loss carryover), in each case for both the taxable year
ended on December 31, 2003 and for any taxable year or period beginning on
January 1, 2004 and ending on or prior to the Exchange Date.
k. That the Acquired Fund shall have furnished to the Acquiring Fund a
certificate, signed by the President (or any Vice President) and the
Treasurer (or any Assistant Treasurer) of the Trust, as to the tax cost to
the Acquired Fund of the securities delivered to the Acquiring Fund
pursuant to this Agreement, together with any such other evidence as to
such tax cost as the Acquiring Fund may reasonably request.
l. That the Acquired Fund's custodian shall have delivered to the
Acquiring Fund a certificate identifying all of the assets of the Acquired
Fund held or maintained by such custodian as of the Valuation Time.
m. That the Acquired Fund's transfer agent shall have provided to the
Acquiring Fund (i) the originals or true copies of all of the records of
the Acquired Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares of the
Acquired Fund outstanding as of the Valuation Time, and (iii) the name and
address of each holder of record of any shares and the number of shares
held of record by each such shareholder.
n. That all of the issued and outstanding shares of beneficial
interest of the Acquired Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue sky laws (including
any applicable exemptions therefrom) and, to the extent that any audit of
the records of the Acquired Fund or its transfer agent by the Acquiring
Fund or its agents shall have revealed otherwise, either (i) the Acquired
Fund shall have taken all actions that in the opinion of the Acquiring Fund
or Ropes & Xxxx LLP are necessary to remedy any prior failure on the part
of the Acquired Fund to have offered for sale and sold such shares in
conformity with such laws or (ii) the Acquired Fund shall have furnished
(or caused to be furnished) surety, or deposited (or caused to be
deposited) assets in escrow, for the benefit of the Acquiring Fund in
amounts sufficient and upon terms satisfactory, in the opinion of the
Acquiring Fund or Ropes & Xxxx LLP, to indemnify the Acquiring Fund against
any expense, loss, claim, damage or liability whatsoever that may be
asserted or threatened by reason of such failure on the part of the
Acquired Fund to have offered and sold such shares in conformity with such
laws.
o. That the Acquiring Fund shall have received from the independent
accountants of the Trust a letter addressed to the Acquiring Fund, dated as
of the Exchange Date, satisfactory in form and substance to the Acquiring
Fund with respect to the performance of limited procedures agreed upon by
the Acquiring Fund and described in such letter (but not an examination in
accordance with generally accepted auditing standards), as of the Valuation
Time.
p. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
-15-
holders of the outstanding shares of beneficial interest of the Acquired
Fund entitled to vote.
q. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP with respect to the matters specified in Section 9(f) of this
Agreement, and such other matters as the Acquiring Fund may reasonably deem
necessary or desirable.
r. 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 the Xxxxxx Xxxxxx Trust or the
Acquiring Fund, threatened by the Commission.
9. Conditions to the Acquired Fund's Obligations. The obligations of the
Acquired Fund hereunder shall be subject to the following conditions:
a. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement of the Acquiring Fund's net assets, together with a list of
portfolio holdings with values determined as provided in Section 4, all as
of the Valuation Time, certified on the Acquiring Fund's behalf by the
President (or any Vice President) and Treasurer (or any Assistant
Treasurer) of the Xxxxxx Xxxxxx Trust, and a certificate of both such
officers, dated the Exchange Date, to the effect that as of the Valuation
Time and as of the Exchange Date there has been no material adverse change
in the financial position of the Acquiring Fund since September 30, 2004,
other than changes occurring in the ordinary course of business.
b. That the Xxxxxx Xxxxxx Trust, on behalf of the Acquiring Fund,
shall have executed and delivered to the Acquired Fund an Assumption of
Liabilities dated as of the Exchange Date, pursuant to which the Acquiring
Fund will, in connection with the transactions contemplated by this
Agreement, assume all of the liabilities of the Acquired Fund existing as
of the Valuation Time, other than liabilities arising pursuant to this
Agreement.
c. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of the Xxxxxx Xxxxxx
Trust certifying that as of the Exchange Date all representations and
warranties of the Acquiring Fund made in this Agreement are true and
correct in all material respects as if made at and as of such date, and
that the Acquiring Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied at
or prior to such date.
d. That there shall not be any material litigation pending or
threatened with respect to the matters contemplated by this Agreement.
e. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx LLP, counsel to the Acquiring Fund, dated the Exchange Date, to the
effect that (i) the Xxxxxx Xxxxxx Trust is a Massachusetts business trust
duly formed and validly existing under the laws of the Commonwealth of
Massachusetts, and the
-16-
Acquiring Fund is a separate series thereof duly constituted in accordance
with the applicable provisions of the 1940 Act and the Agreement and
Declaration of Trust and By-Laws of the Xxxxxx Xxxxxx Trust; (ii) the
Merger Shares to be delivered to the Acquired Fund as provided for by this
Agreement are duly authorized and upon such delivery will be validly issued
and will be fully paid and nonassessable by Xxxxxx Xxxxxx Trust and the
Acquiring Fund and no shareholder of the Acquiring Fund has any preemptive
right to subscription or purchase in respect thereof; (iii) this Agreement
has been duly authorized, executed and delivered by the Xxxxxx Xxxxxx Trust
on behalf of the Acquiring Fund and, assuming that the Acquiring Fund
Prospectus, the Registration Statement and the Acquired Fund Proxy
Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and
assuming due authorization, execution and delivery of this Agreement by the
Trust on behalf of the Acquired Fund, is a valid and binding obligation of
the Xxxxxx Xxxxxx Trust enforceable against the Acquiring Fund in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and other equitable principles; (iv) the
execution and delivery of this Agreement did not, and the consummation of
the transactions contemplated hereby will not, violate the Agreement and
Declaration of Trust or By-Laws of the Xxxxxx Xxxxxx Trust, or any
provision of any agreement known to such counsel to which the Xxxxxx Xxxxxx
Trust or the Acquiring Fund is a party or by which it is bound or, to the
knowledge of such counsel, result in the acceleration of any obligation or
the imposition of any penalty under any agreement, judgment or decree to
which the Xxxxxx Xxxxxx Trust or the Acquiring Fund is party or by which
either of them is bound, it being understood that with respect to
investment restrictions as contained in the Agreement and Declaration of
Trust, By-Laws or then-current prospectuses or statement of additional
information of the Xxxxxx Xxxxxx Trust, such counsel may rely upon a
certificate of an officer of the Xxxxxx Xxxxxx Trust; (v) to the knowledge
of such counsel, no consent, approval, authorization or order of any court
or governmental authority is required for the consummation by the Xxxxxx
Xxxxxx Trust on behalf of the Acquiring Fund of the transactions
contemplated herein, except such as have been obtained under the 1933 Act,
the 1934 Act and the 1940 Act and such as may be required under state
securities or blue sky laws; (vi) the Xxxxxx Xxxxxx Trust is registered
with the Commission as an investment company under the 1940 Act; and (vii)
to the knowledge of such counsel, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or threatened as to the Xxxxxx Xxxxxx Trust or the
Acquiring Fund or any of their properties or assets that challenges or
seeks to prohibit, restrain or enjoin the transactions contemplated by this
Agreement. Such opinion may state that such counsel does not express any
opinion or belief as to the financial statements or other financial data,
or as to the information relating to the Acquired Fund, contained in the
Acquired Fund Proxy Statement or the Registration Statement, and that such
opinion is solely for the benefit of the Acquired Fund, its Trustees and
its officers.
f. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx LLP, dated the Exchange Date (which opinion would be based upon
certain
-17-
factual representations and subject to certain qualifications), in form
satisfactory to the Acquired Fund to the effect that, on the basis of the
existing provisions of the Code, current administrative rules and court
decisions, for federal income tax purposes: (i) the transactions
contemplated by this Agreement will constitute a reorganization within the
meaning of Section 368(a) of the Code, and the Acquiring Fund and the
Acquired Fund will each be "a party to the reorganization" within the
meaning of Section 368(b) of the Code; (ii) under Section 361 of the Code,
no gain or loss will be recognized by the Acquired Fund (x) upon the
transfer of its assets to the Acquiring Fund in exchange for the Merger
Shares and the assumption by the Acquiring Fund of the liabilities of the
Acquired Fund as contemplated in Section 3 hereof or (y) upon the
distribution of the Merger Shares to the shareholders of the Acquired Fund
as contemplated in Section 3 hereof; (iii) under Section 354 of the Code,
no gain or loss will be recognized by shareholders of the Acquired Fund on
the distribution of Merger Shares to them in exchange for their shares of
the Acquired Fund; (iv) under Section 358 of the Code, the aggregate tax
basis of the Merger Shares that the Acquired Fund's shareholders receive in
place of their Acquired Fund shares will be the same as the aggregate tax
basis of the Acquired Fund shares surrendered in exchange therefor; and (v)
under Section 1223(1) of the Code, an Acquired Fund's shareholder's holding
period for the Merger Shares received pursuant to the Agreement will be
determined by including the holding period for the Acquired Fund shares
exchanged for the Merger Shares, provided that the shareholder held the
Acquired Fund shares as a capital asset.
g. That all actions taken by the Xxxxxx Xxxxxx Trust on behalf of the
Acquiring Fund in connection with the transactions contemplated by this
Agreement and all documents incidental thereto shall be satisfactory in
form and substance to the Acquired Fund and Ropes & Xxxx LLP.
h. That the Xxxxxx Xxxxxx Trust shall have received from the
Commission and any relevant state securities administrator such order or
orders as are reasonably necessary or desirable under the 1933 Act, the
1934 Act, the 1940 Act and any applicable state securities or blue sky laws
in connection with the transactions contemplated hereby, and that all such
orders shall be in full force and effect.
i. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired
Fund entitled to vote.
j. That the Registration Statement on Form N-1A of the Xxxxxx Xxxxxx
Trust, with respect to the Acquiring Fund, shall have become effective
under the 1933 Act, and no stop order suspending such effectiveness shall
have been instituted or, to the knowledge of the Xxxxxx Xxxxxx Trust or the
Acquiring Fund, threatened by the Commission.
10. Indemnification.
-18-
a. The Acquired Fund shall indemnify and hold harmless, out of the
assets of the Acquired Fund but no other assets, the Xxxxxx Xxxxxx Trust
and the Trustees and officers of the Xxxxxx Xxxxxx Trust (for purposes of
this Section 10(a), the "Xxxxxx Xxxxxx Trust Indemnified Parties") against
any and all expenses, losses, claims, damages and liabilities at any time
imposed upon or reasonably incurred by any one or more of the Xxxxxx Xxxxxx
Trust Indemnified Parties in connection with, arising out of or resulting
from any claim, action, suit or proceeding in which any one or more of the
Xxxxxx Xxxxxx Trust Indemnified Parties may be involved or with which any
one or more of the Xxxxxx Xxxxxx Trust Indemnified Parties may be
threatened by reason of any untrue statement or alleged untrue statement of
a material fact relating to the Trust or the Acquired Fund contained in
this Agreement, the Registration Statement, the Acquired Fund Prospectus or
the Acquired Fund Proxy Statement or any amendment or supplement to any of
the foregoing, or arising out of or based upon the omission or alleged
omission to state in any of the foregoing a material fact relating to the
Trust or the Acquired Fund required to be stated therein or necessary to
make the statements relating to the Trust or the Acquired Fund therein not
misleading, including, without limitation, any amounts paid by any one or
more of the Xxxxxx Xxxxxx Trust Indemnified Parties in a reasonable
compromise or settlement of any such claim, action, suit or proceeding, or
threatened claim, action, suit or proceeding made with the consent of the
Trust or the Acquired Fund. The Xxxxxx Xxxxxx Trust Indemnified Parties
will notify the Trust and the Acquired Fund in writing within ten days
after the receipt by any one or more of the Xxxxxx Xxxxxx Trust Indemnified
Parties of any notice of legal process or any suit brought against or claim
made against such Xxxxxx Xxxxxx Trust Indemnified Party as to any matters
covered by this Section 10(a). The Acquired Fund shall be entitled to
participate at its own expense in the defense of any claim, action, suit or
proceeding covered by this Section 10(a), or, if it so elects, to assume at
its expense by counsel satisfactory to the Xxxxxx Xxxxxx Trust Indemnified
Parties the defense of any such claim, action, suit or proceeding, and if
the Acquired Fund elects to assume such defense, the Xxxxxx Xxxxxx Trust
Indemnified Parties shall be entitled to participate in the defense of any
such claim, action, suit or proceeding at their expense. The Acquired
Fund's obligation under this Section 10(a) to indemnify and hold harmless
the Xxxxxx Xxxxxx Trust Indemnified Parties shall constitute a guarantee of
payment so that the Acquired Fund will pay in the first instance any
expenses, losses, claims, damages and liabilities required to be paid by it
under this Section 10(a) without the necessity of the Xxxxxx Xxxxxx Trust
Indemnified Parties' first paying the same.
b. The Acquiring Fund shall indemnify and hold harmless, out of the
assets of the Acquiring Fund but no other assets, the Trust and the
Trustees and officers of the Trust (for purposes of this Section 10(b), the
"Trust Indemnified Parties") against any and all expenses, losses, claims,
damages and liabilities at any time imposed upon or reasonably incurred by
any one or more of the Trust Indemnified Parties in connection with,
arising out of, or resulting from any claim, action, suit or proceeding in
which any one or more of the Trust Indemnified Parties may be involved or
with which any one or more of the Trust Indemnified Parties may be
threatened by reason of any untrue statement or
-19-
alleged untrue statement of a material fact relating to the Acquiring Fund
contained in this Agreement, the Registration Statement, the Acquiring Fund
Prospectus or the Acquired Fund Proxy Statement or any amendment or
supplement to any thereof, or arising out of, or based upon, the omission
or alleged omission to state in any of the foregoing a material fact
relating to the Xxxxxx Xxxxxx Trust or the Acquiring Fund required to be
stated therein or necessary to make the statements relating to the Xxxxxx
Xxxxxx Trust or the Acquiring Fund therein not misleading, including,
without limitation, any amounts paid by any one or more of the Trust
Indemnified Parties in a reasonable compromise or settlement of any such
claim, action, suit or proceeding, or threatened claim, action, suit or
proceeding made with the consent of the Xxxxxx Xxxxxx Trust or the
Acquiring Fund. The Trust Indemnified Parties will notify the Xxxxxx Xxxxxx
Trust and the Acquiring Fund in writing within ten days after the receipt
by any one or more of the Trust Indemnified Parties of any notice of legal
process or any suit brought against or claim made against such Trust
Indemnified Party as to any matters covered by this Section 10(b). The
Acquiring Fund shall be entitled to participate at its own expense in the
defense of any claim, action, suit or proceeding covered by this Section
10(b), or, if it so elects, to assume at its expense by counsel
satisfactory to the Trust Indemnified Parties the defense of any such
claim, action, suit or proceeding, and, if the Acquiring Fund elects to
assume such defense, the Trust Indemnified Parties shall be entitled to
participate in the defense of any such claim, action, suit or proceeding at
their own expense. The Acquiring Fund's obligation under this Section 10(b)
to indemnify and hold harmless the Trust Indemnified Parties shall
constitute a guarantee of payment so that the Acquiring Fund will pay in
the first instance any expenses, losses, claims, damages and liabilities
required to be paid by it under this Section 10(b) without the necessity of
the Trust Indemnified Parties' first paying the same.
11. No Broker, etc. Each of the Acquired Fund and the Acquiring Fund
represents that there is no person who has dealt with it or the Trust or the
Xxxxxx Xxxxxx Trust, respectively, 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.
12. Termination. The Acquired Fund and the Acquiring Fund may, by mutual
consent of the trustees on behalf of each Fund, terminate this Agreement, and
the Acquired Fund or the Acquiring Fund, after consultation with counsel and by
consent of its Trustees or an officer authorized by such Trustees, may waive any
condition to its respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially completed by February
28, 2005, this Agreement shall automatically terminate on that date unless a
later date is agreed to by the Acquired Fund and the Acquiring Fund.
13. Covenants, etc. Deemed Material. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
-20-
14. Rule 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund
will, in connection with the issuance of any Merger Shares to any person who at
the time of the transaction contemplated hereby is deemed to be an affiliate of
a party to the transaction pursuant to Rule 145(c), cause to be affixed upon the
certificates issued to such person (if any) a legend as follows:
"THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT TO XXXXXX
XXXXXX GROWTH FUND OR ITS PRINCIPAL UNDERWRITER UNLESS (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (ii) IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE FUND SUCH REGISTRATION IS NOT REQUIRED."
and, further, the Acquiring Fund will issue stop transfer instructions to the
Acquiring Fund's transfer agent with respect to such shares. The Acquired Fund
will provide the Acquiring Fund on the Exchange Date with the name of any
Acquired Fund shareholder who is to the knowledge of the Acquired Fund an
affiliate of the Acquired Fund on such date.
15. Sole Agreement; Amendments; Governing Law. 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 Commonwealth of Massachusetts.
16. Declaration of Trust.
a. A copy of the Agreement and Declaration of Trust of the Xxxxxx
Xxxxxx Trust is on file with the Secretary of the Commonwealth of
Massachusetts, and notice is hereby given that this instrument is executed
on behalf of the Trustees of the Xxxxxx Xxxxxx Trust on behalf of the
Acquiring Fund as trustees and not individually, and that the obligations
of this instrument are not binding upon any of the trustees, officers or
shareholders of the Xxxxxx Xxxxxx Trust individually but are binding only
upon the assets and property of the Acquiring Fund.
b. A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of the Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of
the Trust on behalf of the Acquired Fund as trustees and not individually,
and that the obligations of this instrument are not binding upon any of the
trustees, officers or shareholders of the Trust individually but are
binding only upon the assets and property of the Acquired Fund.
* * * *
-21-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as a sealed instrument as of the day and year first above written.
CDC NVEST FUNDS TRUST I,
on behalf of its CDC Nvest Star
Growth Fund
By: /s/ XXXX X. XXXXXX
-----------------------------
Name: Xxxx X. Xxxxxx
Title: President
XXXXXX XXXXXX FUNDS II,
on behalf of its Xxxxxx Xxxxxx
Growth Fund
By: /s/ XXXX X. XXXXXX
-----------------------------
Name: Xxxx X. Xxxxxx
Title: President
Agreed and accepted as to Section 5 only
IXIS ASSET MANAGEMENT ADVISORS, L.P.
By: IXIS Asset Management Distribution
Corp., its general partner
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and CEO
