Exhibit 9(c)
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of January 6, 1998 (the
"Agreement") between XXXXXXX SECURITIES TRUST, a Massachusetts business trust
(the "Xxxxxxx Trust"), and UAM FUNDS TRUST, a Delaware business trust (the "UAM
Trust").
WHEREAS, the Xxxxxxx Trust was organized under Massachusetts law as a business
trust and operates under a First Amended and Restated Master Trust Agreement
dated February 28, 1995, as amended (the "Xxxxxxx Trust Agreement"). The Xxxxxxx
Trust is an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the UAM Trust has been organized under Delaware law as a business
trust under an Agreement and Declaration of Trust dated May 19, 1994 (the "UAM
Trust Agreement"). The UAM Trust is an open-end, management investment company
registered under the 1940 Act.
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
parties hereto agree to effect the reorganization of Xxxxxxx Real Estate Fund
(the "Fund"), the sole series of the Xxxxxxx Trust which offers shares of
beneficial interest of two classes, the Xxxxxxx/PRA Institutional Class (the
"Xxxxxxx Institutional Class") and the Advisor Class (the "Xxxxxxx Advisor
Class" and together with the Xxxxxxx Institutional Class, the "Acquired Fund
Shares"), into the UAM/Xxxxxxx Real Estate Portfolio (the "UAM Xxxxxxx
Portfolio"), a newly-created shell series of the UAM Trust which offers shares
of beneficial interest of the UAM Xxxxxxx Class (the "UAM Institutional Class")
and the UAM Advisor Class (the "UAM Advisor Class" and together with the UAM
Institutional Class, the "UAM Xxxxxxx Shares") as follows:
1. Plan of Reorganization. Subject to the terms and conditions herein set
forth and on the basis of the representations and warranties contained herein,
at the Effective Time of the Reorganization (as defined in Section 12), the
Xxxxxxx Trust, on behalf of the Fund, shall transfer all of the assets of the
Fund, and assign all of the Fund's liabilities, to the UAM Trust, on behalf of
the UAM Xxxxxxx Portfolio, and the UAM Trust, on behalf of the UAM Xxxxxxx
Portfolio, shall acquire all such assets, and shall assume all such liabilities
of the Fund, in exchange for delivery to the Xxxxxxx Trust, on behalf of the
Fund by the UAM Trust, on behalf of the UAM Xxxxxxx Portfolio, of a number of
UAM Institutional Class Shares and UAM Advisor Class Shares (both full and
fractional) equivalent to the number of Xxxxxxx Institutional Class Shares and
Xxxxxxx Advisor Class Shares, respectively, outstanding immediately prior to the
Effective Time of the Reorganization. Promptly after the Effective Time of the
Reorganization, the Fund shall distribute such UAM Xxxxxxx Shares to the
shareholders of the Fund. (The foregoing transactions are collectively referred
to as the "Reorganization"). This Agreement is intended to be and is adopted as
a plan of reorganization within the meaning of Section 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended (the "Code").
2. Assumption of Liabilities. All debts, liabilities, obligations and duties
of the Fund existing at the Effective Time of the Reorganization, shall be
assumed by the UAM Trust, on behalf of the UAM Xxxxxxx Portfolio, at the
Effective Time of the Reorganization.
3. Transfer of Assets. The assets of the Fund to be acquired by the UAM
Trust on behalf of the UAM Xxxxxxx Portfolio and allocated thereto shall
include, without limitation, all cash, cash equivalents, securities, receivables
(including interest and dividends receivable), any claims or rights of action or
rights to register shares under applicable securities laws, any books or records
of the Fund and other property owned by the Fund on the books of the Fund at the
Effective Time of the Reorganization.
4. Shareholder Actions. Immediately upon delivery to the Fund of the UAM
Xxxxxxx Shares, the Fund, as the then sole shareholder of the UAM Xxxxxxx
Portfolio, shall (i) approve an Investment Management Agreement (the "New
Investment Management Agreement") between the UAM Trust, on behalf of the UAM
Xxxxxxx Portfolio, and Xxxxxxx/PRA Advisors, Inc. ("Xxxxxxx/PRA"), (ii) approve
a Plan of Distribution pursuant to Rule 12b-1 with respect to the UAM Advisor
Class Shares, (iii) approve a Shareholder Servicing Plan with respect to the UAM
Advisor Class Shares and (iv) ratify the selection of Price Waterhouse LLP as
the independent accountants of the Fund.
5. Liquidation of the Fund. At the Effective Time of the Reorganization, the
Fund will liquidate and the UAM Xxxxxxx Shares (both full and fractional)
received by the Fund will be distributed to the shareholders of record as of the
Effective Time of the Reorganization of the Fund in exchange for their
respective Acquired Fund Shares. Each shareholder of the Fund shall receive a
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number of UAM Xxxxxxx Shares of the corresponding class equal to the number of
Acquired Fund Shares of the particular class held by that shareholder at the
Effective Time of the Reorganization. UAM Trust shall establish an open account
on the share records of the UAM Xxxxxxx Portfolio in the name of each
shareholder of the Fund and representing the respective number of UAM Xxxxxxx
Shares of each class due such shareholder. At the Effective Time of the
Reorganization, the net asset value per share of each class of the UAM Xxxxxxx
Portfolio shall be deemed to be the same as the net asset value per share of
each corresponding class of the Fund. As soon as practicable after the Effective
Time of the Reorganization, the Xxxxxxx Trust shall take, in accordance with
Massachusetts law, all steps as shall be necessary and proper to effect a
complete dissolution and deregistration of the Xxxxxxx Trust.
6. Representations, Warranties and Covenants of the UAM Trust. The UAM Trust
represents and warrants to the Fund and the Xxxxxxx Trust as follows:
(a) Organization, Existence, etc. The UAM Trust is validly existing under
the laws of the State of Delaware as a voluntary association with transferable
shares of beneficial interest commonly known as a Delaware business trust, and
at the Effective Time of the Reorganization the UAM Xxxxxxx Portfolio will
have the power to carry on its business as set forth in its prospectus and
statement of additional information.
(b) Registration as an Investment Company. The UAM Trust is registered
under the 1940 Act as an open-end management investment company; such
registration has not been revoked or rescinded and is in full force and
effect.
(c) Shares to be Issued Upon Reorganization. The UAM Xxxxxxx Shares to be
issued in connection with the Reorganization have been duly authorized and
upon consummation of the Reorganization will be validly issued, fully paid and
nonassessable. There shall be no issued and outstanding UAM Xxxxxxx Shares or
any other securities issued by the UAM Xxxxxxx Portfolio prior to the
Effective Time of the Reorganization.
(d) Authority Relative to this Agreement. The UAM Trust, on behalf of the
UAM Xxxxxxx Portfolio, has the power to enter into this Agreement and to carry
out its obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the UAM Trust's Board of Trustees, no other proceedings by the
UAM Trust or the UAM Xxxxxxx Portfolio are necessary to authorize its officers
to effectuate this Agreement and the transactions contemplated hereby and this
Agreement constitutes a valid and binding obligation of the UAM Trust,
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws
relating to or affecting creditors rights and to general principles of equity.
The UAM Trust is not a party to or obligated under the UAM Trust Agreement,
its by-laws, any indenture or contract provision or any other commitment or
obligation, or subject to any order or decree, which would be violated by its
executing and carrying out this Agreement.
(e) Liabilities. There are no material liabilities of the UAM Trust,
whether or not determined or determinable, otherwise than as previously
disclosed to the Fund in writing. There are no liabilities of the UAM Trust of
any kind for which the holders of the Acquired Fund Shares shall become
responsible as the result of this Agreement or the consummation of the
transactions contemplated hereby or otherwise.
(f) Litigation. There are no claims, actions, suits or proceedings
pending or, to the knowledge of the UAM Trust, threatened which would
adversely affect the UAM Trust or its assets or business or which would
prevent or hinder consummation of the transactions contemplated hereby or
which upon such consummation would adversely affect the UAM Xxxxxxx Portfolio.
(g) Contracts. Except for this Agreement, the UAM Trust is not a party to
or subject to any material contract, debt instrument, plan, lease, franchise,
license or permit of any kind or nature whatsoever specifically with respect
to the UAM Xxxxxxx Portfolio.
(h) Taxes. As of the Effective Time of the Reorganization, all Federal
and other tax returns and reports of the UAM Trust required by law to have
been filed shall have been filed, and all taxes shall have been paid so far as
due, or provision shall have been made for the payment thereof, and to the
best of the UAM Trust's knowledge, no such return is currently under audit and
no assessment has been asserted with respect to any of such returns.
(i) Formation of UAM Xxxxxxx Portfolio. Prior to the Effective Time of
the Reorganization, the UAM Trust shall take all steps necessary to cause the
formation of the UAM Xxxxxxx Portfolio. The UAM Xxxxxxx Portfolio shall have
substantially the same investment objective and policies, and the same
investment adviser as the Fund.
(j) Proxy Statement. The UAM Trust shall cooperate with all reasonable
requests for information and other material by the
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Fund and the Fund's counsel in connection with the preparation of the Proxy
Materials (as defined below) and related materials contemplated hereby. All
information contained in the proxy statement to be supplied to shareholders of
the Fund in connection with the Special Meeting that relates to the UAM Trust,
the UAM Xxxxxxx Portfolio, the New Investment Management Agreement, agreements
between the UAM Trust and other service providers, the effects, tax and
otherwise, of the Reorganization on Fund shareholders and other matters known
primarily to UAM Trust (i) is true and correct in all material respects and
(ii) will not contain at the time the Proxy Materials are mailed to Fund
shareholders and at the Effective Time of the Reorganization 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.
(k) Regulatory Actions. UAM Trust, on behalf of the UAM Xxxxxxx
Portfolio, agrees to use all reasonable efforts to obtain the approvals and
authorizations required by the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act and such of the state Blue Sky or securities laws as it
may deem appropriate in order for the UAM Xxxxxxx Portfolio to commence
operations at the Effective Time of the Reorganization, including, without
limitation, to prepare and file a Post-Effective Amendment (the "Post-
Effective Amendment") to the Registration Statement on Form N-1A of UAM Trust
(the "Registration Statement") that includes a prospectus and statement of
additional information for the UAM Xxxxxxx Portfolio.
7. Representations, Warranties and Covenants of the Xxxxxxx Trust. The
Xxxxxxx Trust represents and warrants to the UAM Trust as follows:
(a) Organization, Existence, etc. The Xxxxxxx Trust is validly existing
under the laws of the Commonwealth of Massachusetts as a voluntary association
with transferable shares of beneficial interest commonly known as a
"Massachusetts business trust" and has the power to carry on its business as
set forth in the prospectus and statement of additional information of the
Fund.
(b) Registration as Investment Company. The Xxxxxxx Trust is registered
under the 1940 Act as an open-end management investment company; such
registration has not been revoked or rescinded and is in full force and
effect. The Fund is a separate series of the Xxxxxxx Trust. All registration
statements and filings required to be filed with any state securities
commission has been filed and are effective.
(c) Financial Statements. The financial statements of the Fund for the
fiscal year ended December 31, 1996 (the "Fund Financial Statements") were
audited by Price Waterhouse LLP, the Fund's independent accountants whose
report dated February 14, 1997 expressed an unqualified opinion thereon.
(d) Authority Relative to this Agreement. The Xxxxxxx Trust on behalf of
the Fund has the power to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Xxxxxxx Trust's Board of Trustees, and, except for approval by the
shareholders of the Fund, no other proceedings by the Xxxxxxx Trust or the
Fund are necessary to authorize its officers to effectuate this Agreement and
the transactions contemplated hereby and this Agreement constitutes a valid
and binding obligation of the Xxxxxxx Trust, enforceable in accordance with
its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other laws relative to or
affecting creditors rights and to general principles of equity. The Fund is
not in material violation of, and the execution and the performance of this
Agreement by the Xxxxxxx Trust for itself and on behalf of the Fund does not
and will not (i) violate the Xxxxxxx Trust Agreement and By-laws, or (ii)
result in a breach or violation of, or constitute a default under, any term of
any material agreement or material instrument to which the Xxxxxxx Trust is a
party or by which its properties or assets are bound, except as otherwise
previously disclosed in writing to the UAM Trust.
(e) Liabilities. There are no material liabilities of the Fund known to
the Xxxxxxx Trust whether or not determined or determinable, other than
liabilities disclosed or provided for in the Fund Financial Statements and
liabilities incurred in the ordinary course of business subsequent to December
31, 1996.
(f) Litigation. There are no claims, actions, suits or proceedings
pending or, to the knowledge of the Xxxxxxx Trust, threatened which would
adversely affect the Fund or its assets or business or which would prevent or
hinder consummation of the transactions contemplated hereby or which upon such
consummation would adversely affect the Fund.
(g) Contracts. Except for contracts and agreements disclosed on Schedule
7(g) hereto, under which no default exists, the Fund is not a party to or, as
a series of Xxxxxxx Trust or otherwise, subject to any material contract, debt
instrument, plan, lease, franchise, license or permit of any kind or nature
whatsoever.
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(h) Taxes. As of the Effective Time of the Reorganization, all Federal
and other tax returns and reports of the Fund required by law to have been
filed shall have been filed, and all taxes of the Fund shall have been paid so
far as due, or provision shall have been made for the payment thereof, and to
the best of the Xxxxxxx Trust's knowledge, no such return is currently under
audit and no assessment has been asserted with respect to any of such returns.
(i) Proxy Materials. The Xxxxxxx Trust has prepared or will prepare the
notice of meeting, form of proxy and a proxy statement of the Fund relating to
the Reorganization and the other transactions contemplated by this Agreement
(the "Proxy Materials"). All information contained in the proxy statement to
be supplied to shareholders of the Fund in connection with the Special Meeting
that relates to the Xxxxxxx Trust, the Fund, the Investment Advisory Agreement
between the Xxxxxxx Trust and Xxxxxxx/PRA Advisors, the agreements between the
Xxxxxxx Trust and other service providers, and other matters known primarily
to Xxxxxxx Trust (i) is true and correct in all material respects and (ii)
will not contain at the time the proxy statement is mailed to Fund
shareholders and at the Effective Time of the Reorganization 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.
8. Conditions Precedent to Obligations of the Xxxxxxx Trust. The obligations
of the Xxxxxxx Trust on behalf of the Fund to effectuate this Agreement shall be
subject to the satisfaction (or waiver by the Xxxxxxx Trust prior to the
Effective Time of the Reorganization) of the following conditions:
(a) All representations and warranties of the UAM Trust contained in this
Agreement shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Effective Time of the Reorganization, with the same
force and effect as if made on and as of the Effective Time of the
Reorganization.
(b) Xxxxxxx Trust shall have received an opinion of Drinker, Xxxxxx &
Xxxxx, L.L.P., counsel to the UAM Trust (based upon or subject to such
representations, assumptions, limitations or opinions of local counsel as such
counsel may deem appropriate or necessary), dated as of the Effective Time of
the Reorganization, in a form (including the representations, assumptions,
limitations or opinions of local counsel upon which it is based or to which it
is subject) reasonably satisfactory to the Xxxxxxx Trust and the Fund,
substantially to the effect that:
(1) The UAM Trust is duly registered with the Securities and Exchange
Commission ("SEC") under the 1940 Act as an open-end, management investment
company, and such registration is in full force and effect;
(2) the UAM Xxxxxxx Portfolio is a portfolio of the UAM Trust, which is a
business trust duly created and operating pursuant to the UAM Trust
Agreement, is validly existing and in good standing under the laws of the
state of Delaware, and the UAM Trust Agreement directs the Trustees to manage
the affairs of the UAM Trust and grants them all powers necessary or
desirable to carry out such responsibility, including administering the UAM
Trust's business as described in the current prospectuses and statement of
additional information of the UAM Trust;
(3) this Agreement has been duly authorized, executed and delivered by UAM
Trust on behalf of UAM Xxxxxxx Portfolio and, assuming due authorization,
execution and delivery of this Agreement by the Xxxxxxx Trust on behalf of
the Fund, is a valid and binding obligation of the UAM Trust enforceable
against the UAM Trust 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; and
(4) the UAM Xxxxxxx Shares to be issued to the Fund's shareholders
pursuant to this Agreement are duly registered under the 1933 Act on the
appropriate form, and are duly authorized and upon such issuance will be
validly issued and outstanding and fully paid and non-assessable, and no
shareholder of the Fund has any preemptive rights to subscription or purchase
in respect thereof.
9. Conditions Precedent to Obligations of the UAM Trust. The obligations of
the UAM Trust on behalf of the UAM Xxxxxxx Portfolio to effectuate this
Agreement shall be subject to the satisfaction (or waiver by the UAM Trust prior
to the Effective Time of the Reorganization) of the following conditions:
(a) All representations and warranties of the Xxxxxxx Trust contained in
this Agreement shall be true and correct in all material respects as of the
date hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Effective Time of the
Reorganization, with the same force and effect as if made on and as of the
Effective Time of the Reorganization.
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(b) The UAM Trust shall have received an opinion of Xxxxxxx, Procter & Xxxx
LLP, counsel to the Xxxxxxx Trust (based upon or subject to such
representations, assumptions, limitations or opinions of local counsel as such
counsel may deem appropriate or necessary), dated as of the Effective Time of
the Reorganization, in a form (including the representations, assumptions,
limitations or opinions of local counsel upon which it is based or to which it
is subject) reasonably satisfactory to the UAM Trust and the UAM Xxxxxxx
Portfolio, substantially to the effect that:
(1) The Xxxxxxx Trust is duly registered with the SEC under the 1940 Act as
an open-end, management investment company, and such registration is in full
force and effect;
(2) the Fund is a portfolio of the Xxxxxxx Trust, which is a business trust
duly created and operating pursuant to the Xxxxxxx Trust Agreement, is
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts, and the Xxxxxxx Trust Agreement directs the Trustees to manage
the affairs of the Xxxxxxx Trust and grants them all powers necessary or
desirable to carry out such responsibility, including administering the
Xxxxxxx Trust's business as described in the current prospectuses and
statement of additional information of the Xxxxxxx Trust; and
(3) this Agreement has been duly authorized, executed and delivered by the
Xxxxxxx Trust on behalf of the Fund and, assuming due authorization,
execution and delivery of this Agreement by the UAM Trust on behalf of the
UAM Xxxxxxx Portfolio, is a valid and binding obligation of the Xxxxxxx Trust
enforceable against the Xxxxxxx Trust 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.
10. Further Conditions Precedent to Obligations of the Xxxxxxx Trust and the
UAM Trust. The obligations of the Xxxxxxx Trust and the UAM Trust to effectuate
this Agreement shall be subject to the satisfaction of each of the following
conditions:
(a) The Post-Effective Amendment and all other necessary state filings with
respect to the UAM Xxxxxxx Portfolio shall have been filed with the SEC and
all necessary state securities commissions and shall have become effective,
and no stop order suspending the effectiveness the Registration Statement or
amendment thereto shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened by the SEC or any state securities
commission (and not withdrawn or terminated).
(b) The UAM Xxxxxxx Shares shall have been duly qualified for offering to
the public in all states or jurisdictions of the United States where required
to permit the transfer contemplated by this Agreement to be consummated.
(c) The UAM Trust and the Xxxxxxx Trust shall have received an opinion of
Drinker, Xxxxxx & Xxxxx, L.L.P. (based upon or subject to such
representations, assumptions, limitations or opinions of local counsel as such
counsel may deem appropriate or necessary) addressed to both parties on or
before the Effective Time of the Reorganization substantially to the effect
that for federal income tax purposes:
(1) The Reorganization will constitute a tax-free reorganization within
the meaning of Section 368(a)(1)(F) of the Code and the Fund and the UAM
Xxxxxxx Portfolio will each be a party to the reorganization within the
meaning of Section 368(b) of the Code.
(2) No gain or loss will be recognized by the Fund upon the transfer of
all of its assets to and assumption of the liabilities by the UAM Xxxxxxx
Portfolio in exchange solely for shares of the UAM Xxxxxxx Portfolio pursuant
to Section 361(a) and Section 357(a) of the Code.
(3) No gain or loss will be recognized by the UAM Xxxxxxx Portfolio upon
the receipt by it of all of the assets of the Fund in exchange solely for
shares of the UAM Xxxxxxx Portfolio pursuant to Section 1032(a) of the Code.
(4) The basis of the assets of the Fund received by the UAM Xxxxxxx
Portfolio will be the same as the basis of such assets to the Fund
immediately prior to the exchange pursuant to Section 362(b) of the Code.
(5) The holding period of the assets of the Fund received by the UAM
Xxxxxxx Portfolio will include the period during which such assets were held
by the Fund pursuant to Section 1223(2) of the Code.
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(6) No gain or loss will be recognized by the shareholders of the Fund
upon the exchange of their shares in the Fund for shares of beneficial
interest in the UAM Xxxxxxx Portfolio (including fractional shares to which
they may be entitled), pursuant to Section 354(a) of the Code.
(7) The basis of the shares of the UAM Xxxxxxx Portfolio received by the
shareholders of the Fund (including fractional shares to which they may be
entitled) will be the same as the basis of the shares of the Fund exchanged
therefor pursuant to Section 358(a)(1) of the Code.
(8) The holding period of the shares of the UAM Xxxxxxx Portfolio received
by the shareholders of the Fund (including fractional shares to which they
may be entitled) will include the holding period of the shares of the Fund
surrendered in exchange therefor, provided that the shares of the Fund were
held as a capital asset on the effective date of the Reorganization, pursuant
to Section 1223(1) of the Code.
(9) The UAM Xxxxxxx Portfolio will succeed to and take into account as of
the date of the proposed transfer (as defined in Section 1.381(b)-1(b) of the
Income Tax Regulations) the items of Fund described in Section 381(c) of the
Code, subject to the conditions and limitations specified in Sections 381(b)
and (c), 382, 383 and 384 of the Code.
(d) This Agreement and the Reorganization contemplated hereby shall have
been approved by the affirmative vote of holders of at least a majority of the
outstanding shares of the Fund, as defined in the 1940 Act, entitled to vote
at the special meeting (the "Special Meeting") called for such purpose.
(e) A liability insurance policy (the "Trustee Insurance Policy") providing
insurance for the Trustees of Xxxxxxx Trust who are not "interested persons"
(within the meaning of the 0000 Xxx) of Xxxxxxx Trust (the "Xxxxxxx
Independent Trustees") and for the UAM Trust with respect to any
indemnification by the UAM Trust of the Xxxxxxx Independent Trustees pursuant
to this Agreement satisfactory to the Xxxxxxx Trust and the Xxxxxxx
Independent Trustees shall have been procured by the Xxxxxxx Trust on or
before the Effective Time of the Reorganization, such policy to have an
aggregate limit of liability of $5.0 million to be for a period of 5 years
from the Effective Time of the Reorganization.
At any time prior to the Effective Time of the Reorganization, any of the
foregoing conditions may be waived by affirmative vote of each of the Boards of
Trustees of the Xxxxxxx Trust and the UAM Trust.
11. Indemnification of Xxxxxxx Independent Trustees.
(a) The UAM Trust shall indemnify (from the assets of the UAM Xxxxxxx
Portfolio) each of the Xxxxxxx Independent Trustees (each such person
hereinafter referred to as a "Covered Person") against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection
with the defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or legislative
body, in which such Covered Person may be or may have been involved as a party
or otherwise or with which such person may be or may have been threatened,
while in office or thereafter, by reason of being or having been a Trustee of
the Xxxxxxx Trust, except with respect to any matter as to which it has been
determined that such Covered Person had acted with willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office (such conduct referred to hereafter as
"Disabling Conduct"). A determination that the Covered Person is entitled to
indemnification may be made by (i) a final decision on the merits by a court
or other body before whom the proceeding was brought that the person to be
indemnified was not liable by reason of Disabling Conduct, (ii) dismissal of a
court action or an administrative proceeding against a Covered Person for
insufficiency of evidence of Disabling Conduct or (iii) a reasonable
determination, based upon a review of the facts, that the Covered Person was
not liable by reason of Disabling Conduct by (x) a vote of a majority of a
quorum of the trustees of the UAM Trust who are neither "interested persons"
of the UAM Trust as defined in the 1940 Act nor parties to the proceeding
("Trustee Approval"), (y) an independent legal counsel in a written opinion
("Legal Opinion") or (z) a binding arbitration in accordance with the
applicable rules of the American Arbitration Association before a single
arbitrator selected in accordance with Section 12 of the American Arbitration
Association Commercial Arbitration Rules with substantial business experience
in the investment company industry and held in The Commonwealth of
Massachusetts ("Arbitration").
(b) Expenses, including accountants' and counsel fees so incurred by any
such Covered Person (but excluding amounts paid in satisfaction of judgments,
in compromise or as fines or penalties), shall be paid from time to time by
the UAM Xxxxxxx Portfolio in advance of the final disposition of any such
action, suit or proceeding, provided that (i) the Covered Person shall have
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undertaken to repay the amounts so paid if it is ultimately determined that
indemnification of such expenses is not authorized under this Section 11 and
(ii) either (w) the Covered Person shall have provided security for such
undertaking, (x) the UAM Trust shall be insured against losses arising by
reason of any lawful advances or (y) a reasonable determination is made, based
upon a review of the facts, that the Covered Person was not liable by reason
of Disabling Conduct by (A) Trustee Approval, (B) Legal Opinion or (C)
Arbitration.
(c) As to any matter disposed of by a compromise payment by any such Covered
Persons referred to in Section 11(a), pursuant to a consent decree or
otherwise, no such indemnification either for said payment or for any other
expenses shall be provided unless such indemnification shall be approved by
(A) Trustee Approval, (B) Legal Opinion or (C) Arbitration. Such approval by a
Trustee Approval, a Legal Opinion, or an Arbitration shall not prevent the
recovery from any Covered Person of any amount paid to such Covered Person in
accordance with any of such clauses as indemnification if such Covered Person
is subsequently adjudicated by a court of competent jurisdiction to have acted
with willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of such Covered Person's office.
(d) At any time after notice of a claim for indemnification under this
Agreement has been asserted by a Covered Person, such Covered Person or the
UAM Trust may initiate Arbitration for determination of any matter relating to
the parties' rights under Sections 11(a), (b) or (c) of this Agreement.
(e) A Covered Person shall not be entitled to indemnification pursuant to
this Section 11 with respect to any action, suit or other proceeding unless
the Covered Person shall have promptly submitted a claim for recovery under
the Trustee Insurance Policy with respect to such action, suit or other
proceeding.
(f) The right of indemnification provided by this Section 11 shall not be
exclusive of or affect any other rights to which any such Covered Person may
be entitled. As used in this Section 11, "Covered Person" shall include such
person's heirs, executors and administrators, an "interested Covered Person"
is one against whom the action, suit or other proceeding in question or
another action, suit or other proceeding on the same or similar grounds is
then or had been pending or threatened, and a "disinterested" person is a
person against whom none of such actions, suits or other proceedings or
another action, suit or other proceeding on the same or similar grounds is
then or has been pending or threatened.
(g) The UAM Trust agrees that in the event it or the UAM Xxxxxxx Portfolio
is subsequently acquired by merger, acquisition or the sale of all or
substantially all of its assets (each such event being a "Subsequent Merger"),
or it reorganizes or changes its domicile (each such event being a "Subsequent
Redomestication"), it will provide under the terms of such Subsequent Merger
or Subsequent Redomestication that the indemnification provided for under this
Section 11 shall continue in full force and effect. In the event that the UAM
Trust enters into negotiation for a Subsequent Merger or Subsequent
Redomestication, the UAM Trust shall promptly notify the Covered Person of
such intended Subsequent Merger or Subsequent Redomestication.
12. Effective Time of the Reorganization. The Reorganization shall be
effective as of the close of business on February 27, 1998 or at such other time
as fixed by the mutual consent of the parties (the "Effective Time of the
Reorganization"). Prior to the Effective Time of the Reorganization, the Xxxxxxx
Trust shall notify the shareholders of the Fund that the Reorganization and
related transactions are occurring. Further, the Xxxxxxx Trust shall cause
appropriate notice of such approval to be placed upon the Institutional Class
and Advisor Class prospectuses.
13. Termination. This Agreement and the transactions contemplated hereby,
whether or not they have been approved by the shareholders of the Fund, may be
terminated and abandoned:
(a) by mutual written consent of the Xxxxxxx Trust and the UAM Trust, at
any time prior to the Effective Time of the Reorganization;
(b) by either the Xxxxxxx Trust or the UAM Trust, by notice to the other,
without liability to the terminating party on account of such termination
(provided any such termination shall not excuse the terminating party from any
liability arising out of a default or breach of this Agreement by such
terminating party) if the Effective Time of the Reorganization shall not have
occurred on or before June 30, 1998; or
(c) by either the Xxxxxxx Trust or the UAM Trust, by notice to the other,
without liability to the terminating party on account of such termination
(provided any such termination shall not excuse the terminating party from any
liability arising out of a default or breach of this Agreement by such
terminating party), if (i) the other party shall fail to perform in any
material respect its
7
agreements contained herein required to be performed prior to the Effective
Time of the Reorganization, (ii) the other party materially breaches any of
its representations, warranties or covenants contained herein or (iii) any
other express condition precedent to the obligations of the terminating party
has not been met and it reasonably appears that it will not or cannot be met.
14. Amendment. This Agreement may be amended, modified or supplemented in
such manner as may be mutually agreed upon in writing by the parties; provided,
however, that following the Special Meeting, no such amendment may have the
effect of changing the provisions for determining the number of UAM Xxxxxxx
Shares to be paid to the Fund shareholders under this Agreement to the detriment
of the Fund shareholders without their further approval.
15. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts.
16. Headings, Counterparts, Assignments.
(a) The article and paragraph headings contained in this Agreement are for
reference purposes only and shall not effect in any way the meaning or
interpretation of this Agreement.
(b) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
(c) This Agreement shall be binding upon and inure to the benefit of
parties hereto and their respective successors and assigns, but no assignment
or transfer hereof or of any rights or obligations hereunder shall be made by
any party without the written consent of the other party. Nothing herein
expressed or implied is intended or shall be construed to confer upon or give
any person, firm or corporation other than the parties hereto and their
respective successors and assigns any rights or remedies under or by reason of
this Agreement.
17. Entire Agreement. This Agreement constitutes the entire agreement of the
parties as to the subject matter hereof. The representations, warranties and
covenants contained herein or in any document delivered pursuant hereto or in
connection herewith, including without limitation the indemnification
obligations of Section 11, shall survive the consummation of the transactions
contemplated hereunder.
18. Further Assurances. The UAM Trust and the Xxxxxxx Trust shall take such
further action as may be necessary or desirable and proper to consummate the
transactions contemplated hereby.
19. Binding Nature of Agreement.
(a) As provided in the Xxxxxxx Trust Agreement on file with the Secretary
of the Commonwealth of Massachusetts, it is expressly agreed that the
obligations of the Xxxxxxx Trust hereunder shall not be binding upon any of
the Trustees, shareholders, nominees, officers, agents, or employees of the
Xxxxxxx Trust personally, but shall bind only the assets and property of the
Fund. The execution and delivery by such officers shall not be deemed to have
been made by any of them individually or to impose any liability upon any of
them personally, but shall bind only the assets and property of the Fund.
(b) As provided in the UAM Trust's Agreement and Declaration of Trust, it
is expressly agreed that the obligations of the UAM Trust hereunder shall not
be binding upon any of the Trustees, shareholders, nominees, officers, agents,
or employees of the UAM Trust personally, but shall bind only the assets and
property of the UAM Xxxxxxx Portfolio. The execution and delivery by such
officers shall not be deemed to have been made by any of them individually or
to impose any liability upon any of them personally, but shall bind only the
assets and property of the UAM Xxxxxxx Portfolio.
20. Covenants of the Xxxxxxx Trust. The Xxxxxxx Trust shall deliver to the
UAM Trust prior to noon on the first business day after the Effective Time of
the Reorganization a statement of the Fund's assets and liabilities as of the
close of business on the day prior to the Effective Time of the Reorganization
as reflected on the books of the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
XXXXXXX SECURITIES TRUST on
behalf of the XXXXXXX REAL ESTATE FUND
/s/ Xxxxxxx X. Xxxxxxxx
By: Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Chairman and Chief Executive
Officer of the Xxxxxxx
Securities Trust
UAM FUNDS TRUST on behalf of the
UAM/XXXXXXX REAL ESTATE PORTFOLIO
/s/ NORTON X. XXXXXX
By: Norton X. Xxxxxx
---------------------------------
Title: Trustee, President and
Chairman of the UAM Funds Trust
9
