Exhibit 4
---------
Draft of 10-30-2000
XXXXX FARGO FUNDS TRUST
AND
THE COVENTRY GROUP
AGREEMENT AND
PLAN OF
REORGANIZATION
Dated as of December 15, 2000
This AGREEMENT AND PLAN OF REORGANIZATION (the "Plan") is made as of this
----
15th day of December, 2000, by and between Xxxxx Fargo Funds Trust ("Xxxxx Fargo
-----------
Funds"), a Delaware business trust, for itself and on behalf of its series
-----
listed in the Acquiring Funds column below (each an "Acquiring Fund") and The
--------------
Coventry Group ("Coventry"), a Massachusetts business trust, for itself and on
--------
behalf of its series listed in the Target Funds column below (each a "Target
------
Fund").
----
-------------------------------------------------------------------------------------------------------------------
Target Funds Acquiring Funds
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx U.S. Government Money Market Fund Government Money Market Fund
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx Intermediate U.S. Government Securities Fund Intermediate Government Income Fund
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx Value Equity Fund Growth Fund
-------------------------------------------------------------------------------------------------------------------
WHEREAS, Xxxxx Fargo Funds and Coventry are open-end management investment
companies registered with the Securities and Exchange Commission (the "SEC")
---
under the Investment Company Act of 1940, as amended (the "1940 Act");
--------
WHEREAS, the parties desire that each Acquiring Fund acquire the assets and
assume the liabilities of the Target Fund listed opposite the Acquiring Fund
("Corresponding Target") in exchange for shares of equal value of the Acquiring
--------------------
Fund and the distribution of the shares of the Acquiring Fund to the
shareholders of the Corresponding Target in connection with the liquidation and
termination of the Corresponding Target (each transaction between an Acquiring
Fund and its Corresponding Target, a "Reorganization"); and
--------------
WHEREAS, the parties intend that each Reorganization qualify as a
"reorganization," within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that each Acquiring Fund and its
----
Corresponding Target be a "party to a reorganization," within the meaning of
Section 368(b) of the Code, with respect to that Reorganization;
NOW, THEREFORE, in accordance with the mutual promises described herein,
the parties agree as follows:
1. Definitions.
-----------
The following terms shall have the following meanings:
1933 Act................... The Securities Act of 1933, as amended.
--------
1934 Act................... The Securities Exchange Act of 1934, as amended.
--------
Acquiring Class............ The class of an Acquiring Fund's shares that Xxxxx
--------------- Fargo Funds will issue to the shareholders of the
Corresponding Target Class as set forth in the
Corresponding Classes Table in Schedule A.
Acquiring Fund Financial
------------------------
Statements................ The audited financial statements of each Acquiring
---------- Fund for its most recently completed fiscal year
and, if applicable, the
1
unaudited financial statements of each Acquiring
Fund for its most recently completed semi-annual
period.
Assets..................... All property and assets of any kind and all
------ interests, rights, privileges and powers of or
attributable to a Fund, whether or not determinable
at the appropriate Effective Time and wherever
located. Assets include all cash, cash equivalents,
securities, claims (whether absolute or contingent,
Known or unknown, accrued or unaccrued or
conditional or unmatured), contract rights and
receivables (including dividend and interest
receivables) owned by a Fund and any deferred or
prepaid expense shown as an asset on the Fund's
books.
Assets List................ A list of securities and other Assets and Known
----------- Liabilities of or attributable to a Target Fund as
of the date provided to Xxxxx Fargo Funds.
Closing Date............... April __, 2001, or such other dates as the parties
------------ may agree to in writing with respect to a
Reorganization.
Corresponding Target Class. The Target share class set forth opposite an
-------------------------- Acquiring Class in the Corresponding Classes Table
on Schedule A.
Effective Time............. 9:00 a.m. Eastern Time on the business day
-------------- following the Closing Date of a Reorganization, or
such other time and date as the parties may agree
to in writing.
Fund....................... An Acquiring Fund or a Target Fund.
----
Holding Company Merger
----------------------
Date...................... The date of the closing of the acquisition of
---- Xxxxxxx Xxxxx Inc. by Xxxxx Fargo & Company.
HSR Act.................... The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
------- 1976, as amended.
Know, Known or Knowledge... Known after reasonable inquiry.
------------------------
Liabilities................ All liabilities of, allocated or attributable to,
----------- a Fund, whether Known or unknown, accrued or
unaccrued, absolute or contingent or conditional or
unmatured.
N-14 Registration Statement The Registration Statement of Xxxxx Fargo Funds
--------------------------- on Form N-14 under the 1940 Act that will register
the shares of the Acquiring Funds to be issued in
the Reorganizations and will include the proxy
materials necessary for the shareholders of the
Corresponding Target Funds to approve the
Reorganizations.
2
Material Agreements........ The agreements set forth in Schedule B.
-------------------
Reorganization Documents... Such bills of sale, assignments, and other
------------------------ instruments of transfer as Xxxxx Fargo Funds or
Coventry deems desirable for a Target Fund to
transfer to an Acquiring Fund all right and title
to and interest in the Corresponding Target Fund's
Assets and Liabilities and for the Acquiring Fund
to assume the Corresponding Target Fund's Assets
and Liabilities.
Schedule A................. Schedule A to this Plan.
----------
Schedule B................. Schedule B to this Plan, as may be amended from
---------- time to time.
Target Financial Statements The audited financial statements of each Target
--------------------------- Fund for its most recently completed fiscal year
and, if applicable, the unaudited financial
statements of each Target Fund for its most
recently completed semi-annual period.
Valuation Time............. The time on a Reorganization's Closing Date, the
-------------- business day immediately preceding the Closing Date
if the Closing Date is not a business day or such
other time as the parties may agree to in writing,
that Xxxxx Fargo Funds determines the net asset
value of the shares of the Acquiring Fund and
Coventry determines the net value of the Assets of
or attributable to the Corresponding Target Fund.
Unless otherwise agreed to in writing, the
Valuation Time of a Reorganization shall be at the
time of day then set forth in the Acquiring Fund's
and Target Fund's Registration Statement on Form
N-1A as the time of day at which net asset value is
calculated.
2. Regulatory Filings and Shareholder Action.
------------------------------------------
(a) Xxxxx Fargo Funds shall promptly prepare and file the N-14
Registration Statement with the SEC. Xxxxx Fargo Funds also shall make any
other required filings including, without limitation, filings with state or
foreign securities regulatory authorities.
(b) Coventry shall assist Xxxxx Fargo Funds in preparing the N-14
Registration Statement. Coventry also shall make any other filings required of
it.
(c) The parties shall seek an order of the SEC, if appropriate,
providing them with any necessary relief from the 1940 Act to permit them to
consummate the transactions contemplated by this Plan.
(d) As soon as practicable after the effective date of the N-14
Registration Statement, Coventry shall hold Target Fund shareholder meetings to
consider and approve this
3
Plan, the Reorganizations and such other matters as the Board of Trustees of
Coventry may determine.
3. Transfer of Target Fund Assets. Coventry and Xxxxx Fargo Funds shall
------------------------------
take the following steps with respect to each Reorganization:
(a) On or prior to the Closing Date, Coventry shall endeavor to pay or
make reasonable provision to pay out of the Target Fund's Assets all of the
Liabilities, expenses, costs and charges of or attributable to the Target Fund
that are Known to Coventry and that are due and payable as of the Closing Date.
(b) At the Effective Time, Coventry shall assign, transfer, deliver and
convey all of the Target Fund's Assets to the Acquiring Fund. Xxxxx Fargo Funds
shall then accept the Target Fund's Assets and assume the Target Fund's
Liabilities such that at and after the Effective Time (i) all of the Target
Fund's Assets at or after the Effective Time shall become and be the Assets of
the Acquiring Fund and (ii) all of the Target Fund's Liabilities at the
Effective Time shall attach to the Acquiring Fund, enforceable against the
Acquiring Fund to the same extent as if initially incurred by the Acquiring
Fund.
(c) Within a reasonable time prior to the Closing Date (but in no event
until after the Holding Company Merger Date), Coventry shall provide, if
requested, the Target Fund's Assets List to Xxxxx Fargo Funds. The parties
agree that the Target Fund may sell any asset on the Assets List prior to the
Target Fund's Effective Time. After Coventry provides the Assets List, the
Target Fund will notify Xxxxx Fargo Funds of the purchase of additional
securities or of any additional encumbrances, rights, restrictions or claims not
reflected on the Assets List, within a reasonable time period. Within a
reasonable time after receipt of the Assets List and prior to the Closing Date,
Xxxxx Fargo Funds will advise Coventry in writing of any investments shown on
the Assets List that Xxxxx Fargo Funds has reasonably determined to be
impermissible or inconsistent with the fundamental investment objective,
policies and restrictions of the Acquiring Fund. Upon request of Xxxxx Fargo
Funds, Coventry will seek to dispose of any such securities prior to the Closing
Date to the extent practicable and consistent with applicable legal
requirements, including the Target Fund's investment objectives, policies and
restrictions. In addition, if Xxxxx Fargo Funds determines that, as a result of
the Reorganization, the Acquiring Fund would own an aggregate amount of an
investment that would exceed a percentage limitation applicable to the Acquiring
Fund, Xxxxx Fargo Funds will advise Coventry in writing of any such limitation
and Coventry shall seek to dispose of a sufficient amount of such investment as
may be necessary to avoid exceeding the limitation as of the Effective Time, to
the extent practicable and consistent with applicable legal requirements,
including the Target Fund's investment objectives, policies and restrictions.
(d) Coventry shall assign, transfer, deliver and convey each Target
Fund's Assets to the corresponding Acquiring Fund at the Reorganization's
Effective Time on the following bases:
(1) In exchange for the transfer of the Assets, Xxxxx Fargo Funds
shall simultaneously issue and deliver to the Target Fund full and
fractional
4
shares of beneficial interest of each Acquiring Class. Xxxxx Fargo Funds
shall determine the number of shares of each Acquiring Class to issue by
dividing the net value of the Assets attributable to the Corresponding
Target Class by the net asset value of one Acquiring Class share. Based on
this calculation, Xxxxx Fargo Funds shall issue shares of beneficial
interest of each Acquiring Class with an aggregate net asset value equal to
the net value of the Assets of the Corresponding Target Class.
(2) The parties shall determine the net asset value of the
Acquiring Fund shares to be delivered, and the net value of the Assets to
be conveyed, as of the Valuation Time substantially in accordance with
Xxxxx Fargo Funds current valuation procedures, a copy of which has been
furnished to Coventry. The parties shall make all computations to the
fourth decimal place or such other decimal place as the parties may agree
to in writing.
(3) Coventry shall cause its custodian to transfer the Target
Fund's Assets with good and marketable title to the custodian for the
account of the corresponding Acquiring Fund. Coventry shall cause its
custodian to transfer all cash in the form of immediately available funds
payable to the order of the Xxxxx Fargo Funds custodian for the account of
the Acquiring Fund. Coventry shall cause its custodian to transfer any
Assets that were not transferred to the corresponding Acquiring Fund's
custodian at the Effective Time to the corresponding Acquiring Fund's
custodian at the earliest practicable date thereafter.
(e) Promptly after the Closing Date, Coventry will deliver to Xxxxx
Fargo Funds a Statement of Assets and Liabilities of each Target Fund as of the
Closing Date.
4. Liquidation and Termination of Target Funds, Registration of Shares
-------------------------------------------------------------------
and Access to Records. Coventry and Xxxxx Fargo Funds also shall take the
---------------------
following steps for each Reorganization:
(a) At or as soon as reasonably practical after the Effective Time,
Coventry shall dissolve and liquidate the Target Fund in accordance with
applicable law and its Declaration of Trust by transferring to shareholders of
record of each Corresponding Target Class full and fractional shares of
beneficial interest of the Acquiring Class equal in value to the shares of the
Corresponding Target Class held by the shareholder. Each shareholder also shall
have the right to receive any unpaid dividends or other distributions that
Coventry declared with respect to the shareholder's Corresponding Target Class
shares before the Effective Time. Xxxxx Fargo Funds shall record on its books
the ownership by the shareholders of the respective Acquiring Fund shares;
Coventry shall simultaneously redeem and cancel on its books all of the issued
and outstanding shares of each Corresponding Target Class. Xxxxx Fargo Funds
shall issue certificates representing the Acquiring Fund shares only if it is in
accordance with the then current Acquiring Fund's Declaration of Trust or
prospectus; provided, however, that Xxxxx Fargo Funds shall not issue
-------- -------
certificates representing Acquiring Fund shares to replace certificates
representing Target Fund shares unless the Target Fund share certificates are
first surrendered to Xxxxx Fargo Funds. Coventry shall wind up the affairs of
the Target Fund and shall take all steps as are necessary and proper to
terminate its existence as a Massachusetts business trust as soon as
5
is reasonably possible after the Effective Time and in accordance with all
applicable laws and regulations. The winding-up of the affairs of a Target Fund
shall not cause the affairs of any other Target Fund to wind-up.
(b) If a former Target Fund shareholder requests a change in the
registration of the shareholder's Acquiring Fund shares to a person other than
the shareholder, Xxxxx Fargo Funds shall require the shareholder to (i) furnish
Xxxxx Fargo Funds an instrument of transfer properly endorsed, accompanied by
any required signature guarantees and otherwise in proper form for transfer;
(ii) if any of the shares are outstanding in certificated form, deliver to Xxxxx
Fargo Funds the certificate representing such shares; and (iii) pay to the
Acquiring Fund any transfer or other taxes required by reason of such
registration or establish to the reasonable satisfaction of Xxxxx Fargo Funds
that such tax has been paid or does not apply.
(c) At and after the Closing Date, Coventry shall provide Xxxxx Fargo
Funds and its transfer agent with immediate access to: (i) all records
containing the names, addresses and taxpayer identification numbers of all of
the Target Fund shareholders and the number and percentage ownership of the
outstanding shares of the Corresponding Target Classes owned by each shareholder
as of the Effective Time and (ii) all original documentation (including all
applicable Internal Revenue Service forms, certificates, certifications and
correspondence) relating to the Target Fund shareholders' taxpayer
identification numbers and their liability for or exemption from back-up
withholding. Prior to the Closing Date, Coventry shall direct each of its
service providers that maintain records with respect to a Target Fund as
required by Section 31 of, and Rules 31a-1 and 31a-2 under, the 1940 Act to
continue to preserve and maintain such records as required by such Section and
Rules, unless Xxxxx Fargo Funds direct that such records be delivered to Xxxxx
Fargo Funds or a service provider to the Xxxxx Fargo Funds. As soon as
practicable following the Reorganization with respect to a Target Fund, Coventry
shall deliver all books and records with respect to the Target Fund in its
possession to Xxxxx Fargo and Xxxxx Fargo shall thereafter have the
responsibility to preserve and maintain, or to cause its service providers to
preserve and maintain, all such records received by it in accordance with
Section 31 of, and Rule 31a-1 and 31a-2 under, the 1940 Act.
5. Certain Representations, Warranties and Agreements of Coventry.
--------------------------------------------------------------
Coventry, on behalf of itself and, as appropriate, the Target Funds, represents
and warrants to, and agrees with, Xxxxx Fargo Funds as follows:
(a) Coventry is a business trust duly created, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts. The Board of
Trustees of Coventry duly established and designated each Target Fund as a
series of Coventry and each class of a Target Fund as a class of the Target
Fund. Coventry is registered with the SEC as an open-end management investment
company under the 1940 Act, and such registration is in full force and effect.
(b) Coventry has the power and all necessary federal, state and local
qualifications and authorizations to own all of its properties and Assets, to
carry on its business as now being conducted and described in its currently
effective Registration Statement on Form N-1A, to enter into this Plan and to
consummate the transactions contemplated herein.
6
(c) The Board of Trustees of Coventry has duly authorized the execution
and delivery of the Plan and the transactions contemplated herein. Duly
authorized officers of Coventry have executed and delivered the Plan. The Plan
represents a valid and binding contract, enforceable in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency, bankruptcy
reorganization, arrangement, moratorium, and other similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The execution and delivery of this Plan does not, and, subject to
the approval of shareholders referred to in Section 2, the consummation of the
transactions contemplated by this Plan will not, violate Coventry' Declaration
of Trust or By-Laws or any Material Agreement. Except for the approval of
Target Fund shareholders, Coventry does not need to take any other action to
authorize its officers to effectuate this Plan and the transactions contemplated
herein.
(d) Each Target Fund has qualified as a regulated investment company
under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code, in respect
of each taxable year since the commencement of its operations and qualifies and
shall continue to qualify as a regulated investment company for its taxable year
ending upon its liquidation.
(e) The materials included within the N-14 Registration Statement when
filed with the SEC, when Part A of the N-14 Registration Statement is
distributed to shareholders, at the time of the Target Fund shareholder meetings
for the Reorganizations and at the Effective Time of each Reorganization,
insofar as they relate to Coventry and each Target Fund: (i) shall comply in all
material respects with the applicable provisions of the 1933 Act, the 1934 Act
and the 1940 Act, the rules and regulations thereunder and state securities laws
and (ii) shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein not misleading in light of the circumstances under which
they were made.
(f) Coventry has duly authorized and validly issued all of the issued
and outstanding shares of each Target Fund and all of the shares are validly
outstanding, fully paid and non-assessable, and were offered for sale and sold
in conformity with the registration requirements of all applicable federal and
state securities laws. There are no outstanding options, warrants or other
rights to subscribe for or purchase any Target Fund shares, nor are there any
securities convertible into Target Fund shares.
(g) Each Target Fund is in compliance in all material respects with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, the 1933 Act, the 1934 Act and all applicable state securities laws. Each
Target Fund is in compliance in all materials respects with the investment
policies and restrictions applicable to it set forth in the Form N-1A
Registration Statement currently in effect. The value of the net assets of each
Target Fund is determined using portfolio valuation methods that comply in all
material respects with the requirements of the 1940 Act and the policies of such
Target Fund and all purchases and redemptions of Target Fund shares have been
effected at the net asset value per share calculated in such a manner.
7
(h) Coventry shall operate the business of each Target Fund in the
ordinary course between the date hereof and the Effective Time of the Target
Fund's Reorganization, it being agreed that such ordinary course of business
will include the transactions described in Subsection 3(c), the declaration and
payment of customary dividends and distributions and any other dividends and
distributions deemed advisable by mutual agreement of Coventry and Xxxxx Fargo
Funds in anticipation of the Target Fund's Reorganization.
(i) At a Target Fund's Effective Time, the relevant Target Fund will
have good and marketable title to the Target Fund's Assets and full right, power
and authority to assign, transfer, deliver and convey such Assets.
(j) The Target Financial Statements, copies of which have been
previously delivered to Xxxxx Fargo Funds, fairly present the financial position
of each Target Fund as of the Fund's most recent fiscal year-end and the results
of the Fund's operations and changes in the Fund's net Assets for the periods
indicated. The Target Financial Statements have been prepared in accordance
with generally accepted accounting principles consistently applied.
(k) To the Knowledge of Coventry, no Target Fund has any Liabilities,
whether or not determined or determinable, other than the Liabilities disclosed
or provided for in the Target Financial Statements or Liabilities incurred in
the ordinary course of business subsequent to the date of the Assets List
required by Section 3(c) of this Plan.
(l) Coventry does not Know of any claims, actions, suits,
investigations or proceedings of any type pending or threatened against Coventry
or any Target Fund or its Assets or businesses. Coventry does not Know of any
facts that it currently has reason to believe are likely to form the basis for
the institution of any such claim, action, suit, investigation or proceeding
against Coventry or any Target Fund. For purposes of this provision, investment
underperformance or negative investment performance shall not be deemed to
constitute such facts, provided all customary performance disclosures have been
made. Neither Coventry nor any Target Fund is a party to or subject to the
provisions of any order, decree or judgment of any court or governmental body
that adversely affects, or is reasonably likely to adversely affect, its
financial condition, results of operations, business, properties or Assets or
its ability to consummate the transactions contemplated by the Plan.
(m) Coventry is not a party to any contracts, agreements, franchises,
licenses or permits relating to the Target Funds except those entered into or
granted in the ordinary course of its business, in each case under which no
material default exists. All contracts and agreements material to the Target
Funds are listed on Schedule B. Coventry is not a party to or subject to any
debt instrument, employee benefit plan, lease, franchise, license or permit of
any kind or nature whatsoever on behalf of any Target Fund.
(n) Coventry has filed the federal income tax returns of each Target
Fund for all taxable years to and including the Fund's most recent taxable year
(unless a valid extension for filing has been properly submitted as to any such
taxable year), and has paid all taxes payable pursuant to such returns. To the
Knowledge of Coventry, no such return is currently under audit and no assessment
has been asserted with respect to such returns. Coventry will file the federal
8
income tax returns of each Target Fund for its next taxable year (and for any
previous taxable year that is subject to a valid extension) on or before their
due date, as the same may be properly extended.
(o) Since the date of the Target Financial Statements, there has been
no material adverse change in the financial condition, results of operations,
business, properties or Assets of any Target Fund. For purposes of this
provision, investment underperformance, negative investment performance or net
redemptions shall not be deemed to constitute such facts, provided all customary
performance disclosures have been made.
6. Certain Representations, Warranties and Agreements of Xxxxx Fargo
-----------------------------------------------------------------
Funds. Xxxxx Fargo Funds, on behalf of itself and, as appropriate, the
-----
Acquiring Funds, represents and warrants to, and agrees with, Coventry as
follows:
(a) Xxxxx Fargo Funds is a business trust duly created, validly
existing and in good standing under the laws of the State of Delaware. The Board
of Trustees of Xxxxx Fargo Funds duly established and designated each Acquiring
Fund as a series of Xxxxx Fargo Funds and each Acquiring Class as a class of the
Acquiring Fund. Xxxxx Fargo Funds is registered with the SEC as an open-end
management investment company under the 1940 Act.
(b) Xxxxx Fargo Funds has the power and all necessary federal, state
and local qualifications and authorizations to own all of its properties and
Assets, to carry on its business as described in its Registration Statement on
Form N-1A as filed with the SEC, to enter into this Plan and to consummate the
transactions contemplated herein.
(c) The Board of Trustees of Xxxxx Fargo Funds has duly authorized
execution and delivery of the Plan and the transactions contemplated herein.
Duly authorized officers of Xxxxx Fargo Funds have executed and delivered the
Plan. The Plan represents a valid and binding contract, enforceable in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The execution and delivery of this Plan does not, and the
consummation of the transactions contemplated by this Plan will not, violate the
Declaration of Trust of Xxxxx Fargo Funds or any Material Agreement. Xxxxx
Fargo Funds does not need to take any other action to authorize its officers to
effectuate the Plan and the transactions contemplated herein.
(d) Each Acquiring Fund has qualified as a regulated investment company
under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code in respect of
each taxable year since commencement of its operations and qualifies and shall
continue to qualify as a regulated investment company for its current taxable
year.
(e) The N-14 Registration Statement, when filed with the SEC, when Part
A of the N-14 Registration Statement is distributed to shareholders, at the time
of the Target Fund shareholder meetings for the Reorganizations and at the
Effective Time of each Reorganization, insofar as it relates to Xxxxx Fargo
Funds, the Acquiring Funds or the Acquiring Classes: (i) shall comply in all
material respects with the applicable provisions of the 1933 Act, the 1934 Act
and
9
the 1940 Act, the rules and regulations thereunder and state securities laws
and (ii) shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein not misleading in light of the circumstances in which
they were made.
(f) Xxxxx Fargo Funds shall duly authorize the Acquiring Fund shares to
be issued and delivered to each Corresponding Target Fund as of the Target
Fund's Effective Time. When issued and delivered, the Acquiring Fund shares
shall have been registered for sale under the Securities Act of 1933 and shall
be duly and validly issued, fully paid and non-assessable, and no shareholder of
any Acquiring Fund shall have any preemptive right of subscription or purchase
in respect of them. There are no outstanding options, warrants or other rights
to subscribe for or purchase any Acquiring Fund shares, nor are there any
securities convertible into Acquiring Fund shares.
(g) Each Acquiring Fund is in compliance in all material respects with
all applicable laws, rules and regulations, including, without limitation, the
1940 Act, the 1933 Act, the 1934 Act and all applicable state securities laws.
Each Acquiring Fund is in compliance in all materials respects with the
investment policies and restrictions applicable to it set forth in the Form N-1A
Registration Statement currently in effect. The value of the net assets of each
Acquiring Fund is determined using portfolio valuation methods that comply in
all material respects with the requirements of the 1940 Act and the policies of
such Acquiring Fund and all purchases and redemptions of Acquiring Fund shares
have been effected at the net asset value per share calculated in such a manner.
(h) Xxxxx Fargo Funds does not Know of any claims, actions, suits,
investigations or proceedings of any type pending or threatened against Xxxxx
Fargo Funds or any Acquiring Fund or its Assets or businesses. There are no
facts that Xxxxx Fargo Funds currently has reason to believe are likely to form
the basis for the institution of any such claim, action, suit, investigation or
proceeding against Xxxxx Fargo Funds or any Acquiring Fund. For purposes of
this provision, investment underperformance or negative investment performance
shall not be deemed to constitute such facts, provided all customary performance
disclosures have been made. Neither Xxxxx Fargo Funds nor any Acquiring Fund is
a party to or subject to the provisions of any order, decree or judgment of any
court or governmental body that adversely affects, or is reasonably likely to
adversely affect, its financial condition, results of operations, business,
properties or Assets or its ability to consummate the transactions contemplated
by this Plan.
(i) Xxxxx Fargo Funds is not a party to any contracts, agreements,
franchises, licenses or permits relating to the Acquiring Funds except those
entered into or granted in the ordinary course of its business, in each case
under which no material default exists. All contracts and agreements material
to the Acquiring Funds are listed on Schedule X. Xxxxx Fargo Funds is not a
party to or subject to any debt instrument, employee benefit plan, lease,
franchise, license or permit of any kind or nature whatsoever on behalf of any
Acquiring Fund.
(j) Xxxxx Fargo Funds has filed the federal income tax returns of each
Acquiring Fund for all taxable years to and including the Fund's most recent
taxable year, and has paid all
10
taxes payable pursuant to such returns. To the Knowledge of Xxxxx Fargo Funds,
no such return is currently under audit and no assessment has been asserted with
respect to any such return. Xxxxx Fargo Funds shall file the federal income tax
returns of each Acquiring Fund for the Fund's current taxable year on or before
their due date, as the same may be properly extended.
(k) Since the date of the Acquiring Fund Financial Statements, there
has been no material adverse change in the financial condition, business,
properties or Assets of any Acquiring Fund. For purposes of this provision,
investment underperformance, negative investment performance or net redemptions
shall not be deemed to constitute such facts, provided all customary performance
disclosures have been made.
(l) The Acquiring Fund Financial Statements, copies of which have been
previously delivered to Coventry, fairly present the financial position of each
Acquiring Fund as of the Fund's most recent fiscal year-end and the results of
the Fund's operations and changes in the Fund's net assets for the periods
indicated. The Acquiring Fund Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied.
(m) To the Knowledge of Xxxxx Fargo Funds, no Acquiring Fund has any
Liabilities, whether or not determined or determinable, other than Liabilities
disclosed or provided for in the Acquiring Fund Financial Statements or
Liabilities incurred in the ordinary course of business.
(n) Xxxxx Fargo Funds shall operate the business of each Acquiring Fund
in the ordinary course between the date hereof and the Effective Time, it being
agreed that such ordinary course of business will include the declaration and
payment of customary dividends and distributions.
7. Conditions to Coventry Obligations. The obligations of Coventry with
----------------------------------
respect to each Reorganization shall be subject to the following conditions
precedent:
(a) The shareholders of the Target Fund to which the Reorganization
relates shall have approved the Reorganization in the manner required by the
Declaration of Trust of Coventry and applicable law. If that Target Fund's
shareholders fail to approve the Reorganization, that failure shall release
Coventry of its obligations under this Plan only with respect to that
Reorganization and not any other Reorganization.
(b) Xxxxx Fargo Funds shall have duly executed and delivered the
Acquiring Funds' Reorganization Documents to Coventry.
(c) All representations and warranties of Xxxxx Fargo Funds made in
this Plan that apply to the Reorganization shall be true and correct in all
material respects as if made at and as of the Effective Time.
(d) Xxxxx Fargo Funds shall have delivered to Coventry a certificate
dated as of the Closing Date and executed in its name by its Secretary or
Treasurer, in a form reasonably satisfactory to Coventry, stating that the
representations and warranties of Xxxxx Fargo Funds in
11
this Plan that apply to the Reorganization are true and correct in all material
respects at and as of the Valuation Time and that it has approved the Target
Fund's Assets as being consistent with its investment objectives, policies and
restrictions and that the Target Fund's Assets may otherwise be lawfully
acquired by the Acquiring Fund.
(e) Coventry shall have received an opinion of Xxxxxxxx & Xxxxxxxx LLP,
as counsel to Xxxxx Fargo Funds, in form and substance reasonably satisfactory
to Coventry and dated as of the Closing Date, substantially to the effect that:
(1) Xxxxx Fargo Funds is a business trust duly created, validly
existing and in good standing under the laws of the State of Delaware and
is an open-end, management investment company registered under the 1940
Act;
(2) the shares of the Acquiring Fund to be delivered as provided
for by this Plan are duly authorized and upon delivery will be validly
issued, fully paid and non-assessable by Xxxxx Fargo Funds, provided that
the payments for transfer taxes by shareholders provided for in Section
4(b) of this Plan shall not be deemed to render the shares issued
assessable;
(3) the execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate the Declaration of
Trust of Xxxxx Fargo Funds or any Material Agreement to which Xxxxx Fargo
Funds is a party or by which it is bound;
(4) no consent, approval, authorization or order is required under
the HSR Act for the consummation by Coventry of the Reorganization; and
(5) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by Xxxxx Fargo Funds of the Reorganization, or for the
execution and delivery of Xxxxx Fargo Funds' Reorganization Documents,
except those that have been obtained under the 1933 Act, the 1934 Act, the
1940 Act and the rules and regulations under those Acts or that may be
required under state securities laws or subsequent to the Effective Time or
when the failure to obtain the consent, approval, authorization or order
would not have a material adverse effect on the operation of the Acquiring
Fund.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (iv) define the word "Knowledge" and related terms to
mean the Knowledge of attorneys then with such firm who have devoted substantive
attention to matters directly related to this Plan and (v) rely on certificates
of officers or trustees of Xxxxx Fargo Funds.
(f) Coventry shall have received an opinion of Xxxxxxxx, Xxxxxx &
Finger P.A., addressed to Coventry and Xxxxx Fargo Funds, in form and substance
reasonably satisfactory to them and dated as of the Closing Date, substantially
to the effect that this Plan has been duly
12
authorized, executed and delivered by Coventry and Xxxxx Fargo Funds, and,
assuming due authorization, execution and delivery of this Plan by Coventry on
behalf of the Target Fund and Xxxxx Fargo Funds on behalf of the Acquiring Fund,
represents a legal, valid and binding contract of each Fund, enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and transfer and similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto,
and further subject to the application of equitable principles in any proceeding
whether at law or in equity or with respect to the enforcement of provisions of
the Plan and the effect of judicial decisions which have held that certain
provisions are unenforceable when their enforcement would violate an implied
covenant of good faith and fair dealing or would be commercially unreasonable or
when default under the Plan is not material. In rendering such opinion, such
counsel may (i) make assumptions regarding the authenticity, genuineness and/or
conformity of documents and copies thereof without independent verification
thereof, (ii) limit such opinion to applicable state law, and (iii) rely on
certificates of officers or trustees of Coventry and Xxxxx Fargo Funds.
(g) Coventry shall have received an opinion from _____________,
addressed to Coventry and Xxxxx Fargo Funds in form and substance reasonably
satisfactory to them, and dated as of the Closing Date, with respect to the tax
matters specified in Subsection 8(g).
(h) Coventry shall have received (i) a memorandum addressed to Coventry
and Xxxxx Fargo Funds, in form and substance reasonably satisfactory to them,
prepared by Xxxxxxxx & Xxxxxxxx LLP, or another person agreed to in writing by
the parties, concerning compliance with each relevant state's securities laws in
connection with Xxxxx Fargo Funds' issuance of Acquiring Fund shares.
(i) The N-14 Registration Statement shall have become effective under
the 1933 Act as to the Acquiring Fund's shares and the SEC shall not have
instituted or, to the Knowledge of Xxxxx Fargo Funds, contemplated instituting,
any stop order suspending the effectiveness of the N-14 Registration Statement.
(j) No action, suit or other proceeding shall be threatened or pending
before any court or governmental agency in which it is sought to restrain or
prohibit, or obtain damages or other relief in connection with, the
Reorganization.
(k) The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking to enjoin
consummation of the Reorganization under Section 25(c) of the 1940 Act.
(l) Xxxxx Fargo Funds shall have performed and complied in all material
respects with each of its agreements and covenants required by this Plan to be
performed or complied with by it prior to or at the Reorganization's Valuation
Time and Effective Time.
(m) Coventry shall have received from Xxxxx Fargo Funds a duly executed
instrument whereby the Acquiring Fund assumes all of the Liabilities of or
attributable to the Target Fund.
13
(n) Coventry shall have received a letter dated as of the Closing Date
from KPMG LLP addressed to Coventry and Xxxxx Fargo Funds, in form and substance
reasonably satisfactory to them, to the effect that on the basis of limited
procedures as agreed to by Coventry and Xxxxx Fargo Funds and described in such
letter (but not an examination in accordance with generally accepted auditing
standards):
(1) nothing came to their attention that caused them to believe
that the relevant unaudited pro forma financial statements included in the
N-14 Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the relevant pro forma adjustments have not properly
been applied to the historical amounts in the compilation of those amounts;
(2) the data used in the calculation of the current and pro forma
expense ratios of the Target Fund and the Acquiring Fund appearing in the
N-14 Registration Statement, including the proxy materials, agree with the
underlying accounting records of the Target Fund and the Acquiring Fund, as
appropriate, or with written estimates provided by officers of Coventry or
Xxxxx Fargo Funds, as appropriate, having responsibility for financial and
reporting matters; and
(3) the information relating to the Acquiring Fund and the Target
Fund appearing in the N-14 Registration Statement that is expressed in
dollars or percentages of dollars has been obtained from the accounting
records of the Acquiring Fund or the Target Fund, as appropriate, or from
schedules prepared by officers of Coventry or Xxxxx Fargo Funds, as
appropriate, having responsibility for financial and reporting matters and
such information is in agreement with such records or schedules or with
computations made therefrom.
(o) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
(p) The parties shall have received any necessary order of the SEC
providing them with any necessary relief from the 1940 Act to permit the
Reorganization.
8. Conditions to Xxxxx Fargo Funds Obligations. The obligations of Xxxxx
-------------------------------------------
Fargo Funds with respect to each Reorganization shall be subject to the
following conditions precedent:
(a) The shareholders of the Target Fund to which the Reorganization
relates shall have approved the Reorganization in the manner required by the
Declaration of Trust of Coventry and applicable law. If that Target Fund's
shareholders fail to approve the Reorganization, that failure shall release
Xxxxx Fargo Funds of its obligations under this Plan only with respect to that
Reorganization, and not any other Reorganization.
(b) Coventry shall have duly executed and delivered the Target Fund
Reorganization Documents to Xxxxx Fargo Funds.
14
(c) All representations and warranties of Coventry made in this Plan
that apply to the Reorganization shall be true and correct in all material
respects as if made at and as of the Valuation Time and the Effective Time.
(d) Coventry shall have delivered to Xxxxx Fargo Funds a certificate
dated as of the Closing Date and executed in its name by its Treasurer or
Secretary, in a form reasonably satisfactory to Xxxxx Fargo Funds, stating that
the representations and warranties of Coventry in this Plan that apply to the
Reorganization are true and correct at and as of the Valuation Time.
(e) Xxxxx Fargo Funds shall have received an opinion of Dechert Price &
Xxxxxx, as counsel to Coventry, in form and substance reasonably satisfactory to
Xxxxx Fargo Funds and dated as of the Closing Date, substantially to the effect
that:
(1) Coventry is a business trust duly created, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts
and is an open-end, management investment company registered under the 1940
Act;
(2) this Plan has been duly authorized, executed and delivered by
Coventry;
(3) the execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate the Declaration of
Trust or By-Laws of Coventry or any Material Agreement to which Coventry is
a party or by which it is bound;
(4) no consent, approval, authorization or order is required under
the HSR Act for the consummation by Coventry of the Reorganization; and
(5) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by Coventry of the Reorganization, or the execution
and delivery of the Coventry Reorganization Documents, except those that
have been obtained under the 1933 Act, the 1934 Act, the 1940 Act and the
rules and regulations under those Acts, or that may be required under state
securities laws or subsequent to the Effective Time or when the failure to
obtain the consent, approval, authorization or order would not have a
material adverse effect on the operation of the Target Fund.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (iv) define the word "Knowledge" and related terms to
mean the Knowledge of attorneys then with such firm who have devoted substantive
attention to matters directly related to this Plan and (v) rely on certificates
of officers or trustees of Coventry.
(f) Xxxxx Fargo Funds shall have received an opinion from Xxxxxxx,
Xxxxxx & Finger P.A., addressed to Coventry and Xxxxx Fargo Funds in form and
substance reasonably
15
satisfactory to them and dated as of the closing date, with respect to the
matters set forth in subsection 7(f).
(g) Xxxxx Fargo Funds shall have received an opinion of
_______________, addressed to Coventry and Xxxxx Fargo Funds in form and
substance reasonably satisfactory to them, based upon representations made in
certificates provided by Coventry and Xxxxx Fargo Funds, their affiliates and/or
principal shareholders and dated as of the Closing Date, substantially to the
effect that, for federal income tax purposes:
(1) The Reorganization will constitute a "reorganization" within
the meaning of Section 368(a). Each Acquiring Fund and the corresponding
Target Fund will be a "party to a reorganization."
(2) Each Target Fund's shareholders will recognize no gain or loss
on their receipt of voting shares of the corresponding Acquiring Fund in
exchange for their voting shares of the Target Fund pursuant to the
Reorganization.
(3) No Target Fund will recognize gain or loss on the transfer of
all of its assets to the corresponding Acquiring Fund solely in exchange
for voting shares of the Acquiring Fund and the assumption by the Acquiring
Fund of certain Target Fund liabilities pursuant to the Reorganization.
(4) No Target Fund will recognize gain or loss on its distribution
of voting shares of the corresponding Acquiring Fund to its shareholders
pursuant to the liquidation of the Target Fund.
(5) No Acquiring Fund will recognize gain or loss on its
acquisition of all of the assets of the corresponding Target Fund solely in
exchange for voting shares of such Acquiring Fund and the assumption by
such Acquiring Fund of the Target Fund's liabilities.
(6) The basis of each of the voting shares of an Acquiring Fund
received by the corresponding Target Fund's shareholders pursuant to the
Reorganization will equal the basis of the voting shares of the Target Fund
surrendered in exchange therefor.
(7) The holding period of the voting shares of an Acquiring Fund
received by the corresponding Target Fund's shareholders pursuant to the
Reorganization will include the period that the shareholders held the
voting shares of the Target Fund exchanged therefor, provided that the
shareholders held such shares as a capital asset on the date of the
Reorganization.
(8) Each Acquiring Fund's basis in the assets of the corresponding
Target Fund received pursuant to the Reorganization will equal the Target
Fund's basis in the assets immediately before the Reorganization.
16
(9) Each Acquiring Fund's holding period in the Target Fund assets
received pursuant to the Reorganization will include the period during
which the corresponding Target Fund held the assets.
(10) Each Acquiring Fund will succeed to and take into account the
items of the corresponding Target Fund described in Section 381(c),
including the earnings and profits, or deficit in earnings and profits, of
the corresponding Target Fund as of the date of the Reorganization. Each
Acquiring Fund will take these items into account subject to the conditions
and limitations specified in Sections 381, 382, 383 and 384 and applicable
regulations thereunder.
(h) The N-14 Registration Statement shall have become effective under
the 1933 Act as to the Acquiring Fund's shares and no stop order suspending the
effectiveness of the N-14 Registration Statement shall have been instituted or,
to the Knowledge of Xxxxx Fargo Funds, contemplated by the SEC.
(i) No action, suit or other proceeding shall be threatened or pending
before any court or governmental agency in which it is sought to restrain or
prohibit or obtain damages or other relief in connection with the
Reorganization.
(j) The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking to enjoin
consummation of the Reorganization under Section 25(c) of the 1940 Act.
(k) Coventry shall have performed and complied in all material respects
with each of its agreements and covenants required by this Plan to be performed
or complied with by it prior to or at the Reorganization's Valuation Time and
Effective Time.
(l) Coventry shall have taken all steps required to terminate any
agreements with service providers to the Target Funds and shall have discharged
any and all Target Fund payment obligations under such agreements.
(m) Xxxxx Fargo Funds shall have received a letter from KPMG LLP
addressed to Coventry and Xxxxx Fargo Funds as described in Subsection 7(n).
(n) Except to the extent prohibited by Rule 19b-1 under the 1940 Act,
the Target Fund shall have declared a dividend or dividends that, together with
all previous such dividends, shall have the effect of distributing to the Target
Fund shareholders substantially all investment company taxable income of or
attributable to the Target Fund earned prior to the Closing Date and
substantially all net capital gain of or attributable to the Target Fund
realized prior to such date.
(o) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
17
(p) The parties shall have received any necessary order of the SEC
providing them with any relief from the 1940 Act to permit the Reorganization.
9. Survival of Representations and Warranties. The representations and
------------------------------------------
warranties of the parties hereto shall survive the completion of the
transactions contemplated herein.
10. Termination of Plan. A majority of a party's Board of Trustees may
-------------------
terminate this Plan with respect to any Acquiring Fund or Target Fund, as
appropriate if: (i) the party's conditions precedent set forth in Sections 7 or
8, as appropriate, are not satisfied on the Closing Date; or (ii) it becomes
reasonably apparent to the party's Board of Trustees that the other party will
not be able to satisfy such conditions precedent on the Closing Date. The
termination of this Plan with respect to an Acquiring Fund and its Corresponding
Target Fund shall not affect the survival of the Plan with respect to any other
Acquiring Fund or Target Fund.
11. Governing Law. This Plan and the transactions contemplated hereby
-------------
shall be governed, construed and enforced in accordance with the laws of the
State of Delaware, except to the extent preempted by federal law, without regard
to conflicts of law principles.
12. Finders Fees. Each party represents and warrants that there are no
------------
brokers or finders entitled to receive any payments in connection with the
transactions provided for in this Plan.
13. Amendments. The parties may, by agreement in writing authorized by
----------
their respective Boards of Trustees, amend this Plan with respect to any
Reorganization at any time before or after the Target Fund's shareholders
approve the Reorganization. After a Target Fund's shareholders approve a
Reorganization, however, the parties may not amend this Plan in a manner that
materially adversely affects the interests of the Target Fund's shareholders
with respect to that Reorganization. This Section shall not preclude the parties
from changing the Closing Date or the Effective Time of a Reorganization by
mutual agreement.
14. Waivers. At any time prior to the Closing Date, either party may by
-------
written instrument signed by it (i) waive the effect of any inaccuracies in the
representations and warranties made to it contained herein and (ii) waive
compliance with any of the agreements, covenants or conditions made for its
benefit contained herein. The parties agree that any waiver shall apply only to
the particular inaccuracy or requirement for compliance waived, and not any
other or future inaccuracy or lack of compliance.
15. Indemnification of Trustees. Xxxxx Fargo Funds shall indemnify,
---------------------------
defend and hold harmless Coventry, its officers, trustees, employees and agents
against all losses, claims, demands, liabilities and expenses, including
reasonable legal and other expenses incurred in defending claims or liabilities,
whether or not resulting in any liability of Coventry, its officers, trustees,
employees or agents, arising out of our based on (i) any material breach by
Xxxxx Fargo Funds of any of its representations, warranties or agreements set
forth in this Agreement, or (ii) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement on Form N-
1A or Form N-14 for Xxxxx Fargo Funds that is used in connection with the
Reorganization (except to the extent that information for a Form N-14
registration statement was provided by or on behalf of
18
Coventry). Xxxxx Fargo Funds also agrees that it will assume all liabilities and
obligations of Coventry relating to any obligation of Coventry to indemnify its
current and former Trustees and officers, acting in their capacities as such, to
the fullest extent permitted by law and Coventry's Declaration of Trust, as in
effect as of the date of this Plan. Xxxxx Fargo Funds also agrees that all
rights to indemnification and all limitations of liability existing in favor of
the current and former Trustees and officers, acting in their capacities as
such, under Coventry's Declaration of Trust as in effect as of the date of this
Plan shall survive the Reorganizations and shall continue in full force and
effect, without any amendment thereto, and shall constitute rights which may be
asserted against Xxxxx Fargo Funds, its successors and assigns.
16. Cooperation and Further Assurances. Each party will cooperate with
----------------------------------
the other in fulfilling its obligations under this Plan and will provide such
information and documentation as is reasonably requested by the other in
carrying out this Plan's terms. Each party will provide such further assurances
concerning the performance of obligations under this Plan and the consummation
of the Reorganizations as the other shall reasonably deem necessary, advisable
or appropriate.
17. Updating of N-14 Registration Statement. If at any time prior to the
---------------------------------------
Effective Time of a Reorganization a party becomes aware of any untrue statement
of a material fact or omission to state a material fact required to be stated
therein or necessary to make the statements made not misleading in light of the
circumstances under which they were made in the N-14 Registration Statement, as
appropriate, the party discovering the item shall notify the other party and the
parties shall cooperate in promptly preparing, filing and clearing with the SEC
and, if appropriate, distributing to shareholders appropriate disclosure with
respect to the item.
18. Limitation on Liabilities. The obligations of Coventry, Xxxxx Fargo
-------------------------
Funds and each Fund shall not bind any of the Trustees, shareholders, nominees,
officers, agents, or employees of Coventry or Xxxxx Fargo Funds personally, but
shall bind only the Assets and property of the Acquiring Funds and Target Funds.
The execution and delivery of this Plan by the parties' officers shall not be
deemed to have been made by any of them individually or to impose any liability
on any of them personally, but shall bind only the Assets and the property of
the Acquiring Funds or Target Funds, as appropriate.
19. Termination of Coventry. If the parties complete every
-----------------------
Reorganization, Coventry shall terminate its registration under the 1940 Act and
terminate its existence as a Massachusetts business trust.
20. Notices. Any notice, report, statement, certificate or demand
-------
required or permitted by any provision of this Plan shall be in writing and
shall be given by prepaid telegraph, telecopy, certified mail or overnight
express courier to:
For Coventry:
With a copy to:
19
Xxxxxxx X.X. Xxxxxx
Dechert Price & Xxxxxx
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
For Xxxxx Fargo Funds:
Xxxxxxx X. Xxxxx, President
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
With a copy to:
C. Xxxxx Xxxxxxx, Secretary
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
21. General. This Plan supersedes all prior agreements between the
-------
parties (written or oral), is intended as a complete and exclusive statement of
the terms of the agreement between the parties and may not be changed or
terminated orally. The parties may execute this Plan in counterparts, which
shall be considered one and the same agreement, and shall become effective when
the counterparts have been executed by and delivered to both parties. The
headings contained in this Plan are for reference only and shall not affect in
any way the meaning or interpretation of this Plan. Nothing in this Plan,
expressed or implied, confers upon any other person any rights or remedies under
or by reason of this Plan. Neither party may assign or transfer any right or
obligation under this Plan without the written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers designated below to execute this Plan as of the date first written
above.
XXXXX FARGO FUNDS TRUST
ATTEST:
20
By:
----------------------------- --------------------------------------
Name: C. Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
THE COVENTRY GROUP
ATTEST:
By:
----------------------------- --------------------------------------
Name: Name:
Title: Title:
21
SCHEDULE A
I. Corresponding Classes Table:
---------------------------
-------------------------------------------------------------------------------------------------------------------------
Corresponding Target Classes Acquiring Fund Classes
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Value Equity Fund Xxxxx Fargo Growth Fund
Single Class Institutional Class
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Intermediate U.S. Government Securities Fund Xxxxx Fargo Intermediate Government Income Fund
Single Class Institutional Class
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx U.S. Government Money Market Fund Xxxxx Fargo Government Money Market Fund
Class M Service Class
-------------------------------------------------------------------------------------------------------------------------
A-1
SCHEDULE B
MATERIAL AGREEMENTS
The following agreements shall be Material Agreements for Coventry:
Investment Advisory Agreement between Xxxxxxx Bank, N.A. and Coventry dated
August 8, 1994.
Distribution Agreement between The Winsbury Company LP and Coventry dated
________.
Selling Agreement between The Winsbury Company LP and Xxxxxxx Bank, N.A. dated
_____.
Custodian Agreement between Xxxxxxx Bank, N.A. and Coventry dated August 8,
1994.
Management and Administration Agreement between BISYS Fund Services LP and
Coventry dated August 8, 1994.
Transfer Agency Agreement between The Winsbury Service Corporation and Coventry
dated August 8, 1994.
Fund Accounting Agreement between The Winsbury Service Corporation and Coventry
dated August 8, 1994.
Distribution and Shareholder Servicing Plan approved by the Board of Trustees of
Coventry on __________.
Shareholder Servicing Agreement between BISYS Fund Services LP and Xxxxxxx Bank,
N.A. dated May 24, 2000.
The following agreements shall be Material Agreements for Xxxxx Fargo Funds:
Investment Advisory Contract between Xxxxx Fargo Bank, N.A. and Xxxxx Fargo
Funds, dated November 8, 1999.
Sub-Advisory Contract between Xxxxx Capital Management, Incorporated, Xxxxx
Fargo Bank, N.A. and Xxxxx Fargo Funds, dated November 8, 1999.
Distribution Agreement between Xxxxxxxx, Inc. and Xxxxx Fargo Funds,
dated November 8, 1999.
Custody Agreement between Norwest Bank Minnesota, N.A. and Xxxxx Fargo Funds,
dated November 8, 1999.
Administration Agreement between Xxxxx Fargo Bank, N.A. and Xxxxx Fargo Funds
dated November 8, 1999.
Fund Accounting Agreement between Forum Accounting Services, LLC and Xxxxx Fargo
Funds, dated November 8, 1999.
Transfer Agency and Service Agreement between Boston Financial Data Services,
Inc.
and Xxxxx Fargo Funds, dated November 8, 1999.
Shareholder Servicing Agreement approved by the Board of Xxxxx Fargo Funds
on March 26, 1999.
Fee and Expense Agreement between Xxxxx Fargo Funds and Xxxxx Fargo Bank, N.A.
dated July 25, 2000.
E-2
