AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made as of
this January 1, 2002 by and between the Capitol Mutual Funds (doing business as
Nations Reserves) ("Reserves"), a Massachusetts business trust, for itself and
on behalf of its Nations Blue Chip Fund, Nations Government Reserves, Nations
Cash Reserves, Nations Treasury Reserves, Nations Convertible Securities Fund,
Nations Municipal Reserves, Nations Money Market Reserves, Nations California
Tax-Exempt Reserves, Nations California Municipal Bond Fund, Nations Emerging
Markets Fund, Nations International Value Fund, Nations International Equity
Fund and Nations Intermediate Bond Fund, and Nations Funds Trust ("Funds
Trust"), a Delaware statutory business trust, for itself and on behalf of its
Nations Strategic Growth Fund, Nations Government Reserves, Nations Cash
Reserves, Nations Treasury Reserves, Nations Convertible Securities Fund,
Nations Municipal Reserves, Nations Money Market Reserves, Nations California
Tax-Exempt Reserves, Nations California Municipal Bond Fund, Nations Emerging
Markets Fund, Nations International Value Fund, Nations International Equity
Fund and Nations Intermediate Bond Fund.
WHEREAS, Reserves and Funds Trust 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 the Fund Assets and Liabilities (as
defined below) of Reserves's Nations Blue Chip Fund, Nations Government
Reserves, Nations Cash Reserves, Nations Treasury Reserves, Nations Convertible
Securities Fund, Nations Municipal Reserves, Nations Money Market Reserves,
Nations California Tax-Exempt Reserves, Nations California Municipal Bond Fund,
Nations Emerging Markets Fund, Nations International Value Fund, Nations
International Equity Fund and Nations Intermediate Bond Fund (each an "Acquired
Fund" and collectively the "Acquired Funds") be conveyed to and, acquired and
assumed, respectively, by Funds Trust's Nations Strategic Growth Fund, Nations
Government Reserves, Nations Cash Reserves, Nations Treasury Reserves, Nations
Convertible Securities Fund, Nations Municipal Reserves, Nations Money Market
Reserves, Nations California Tax-Exempt Reserves, Nations California Municipal
Bond Fund, Nations Emerging Markets Fund, Nations International Value Fund,
Nations International Equity Fund and Nations Intermediate Bond Fund (each an
"Acquiring Fund" and collectively the "Acquiring Funds") in exchange for shares
of equal U.S. dollar value of such Acquiring Fund which shall thereafter
promptly be distributed to the shareholders of an Acquired Fund in connection
with its liquidation as described in this Agreement and set forth in Schedule A
attached hereto (each such acquisition and assumption of an Acquired Fund's Fund
Assets and Liabilities by the corresponding Acquiring Fund a "Reorganization"
and collectively the "Reorganizations"); 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
corresponding Acquired Fund will each be a "party to a reorganization," within
the meaning of Section 368(b) of the Code, with respect to each respective
Reorganization.
NOW, THEREFORE, in accordance with the terms and conditions described
herein, the Acquired Funds and Acquiring Funds shall be consolidated as follows:
1. Conveyance of Fund Assets and Liabilities of the Acquired Funds.
(a) Except as provided below, at the Effective Time of the
Reorganization (as defined in Section 8) all assets of every
kind, and all interests, rights, privileges and powers of the
Acquired Funds (the "Fund Assets"), subject to all liabilities
of the Acquired Funds existing as of the Effective Time of the
Reorganization (the "Liabilities"), shall be transferred by
each Acquired Fund to each corresponding Acquiring Fund and
shall be accepted and assumed by such Acquiring Fund, as more
particularly set forth in this Agreement, such that at and
after the Effective Time of the Reorganization: (i) all Fund
Assets of each Acquired Fund shall become the assets of the
corresponding Acquiring Fund; and (ii) all Liabilities of each
Acquired Fund shall attach to the corresponding
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Acquiring Fund, enforceable against each Acquiring Fund to
the same extent as if originally incurred by such Acquiring
Fund.
(b) It is understood and agreed that the Fund Assets shall include
all property and assets of any nature whatsoever, including,
without limitation, all cash, cash equivalents, securities,
claims (whether absolute or contingent, known or unknown,
accrued or unaccrued) and receivables (including dividend and
interest receivables) owned or exercisable by an Acquired
Fund, and any deferred or prepaid expenses shown as an asset
on such Acquired Fund's books, that the Liabilities of an
Acquired Fund shall include all liabilities, whether known or
unknown, accrued or unaccrued, absolute or contingent, in all
cases, existing at the Effective Time of the Reorganization.
(c) At least fifteen (15) business days prior to the Closing Date
(as defined in Section 8), each Acquired Fund will provide to,
or cause to be provided to, each corresponding Acquiring Fund,
a schedule of its securities, other assets and its known
liabilities. It is understood and agreed that such Acquired
Fund may sell any of the securities or other assets shown on
such schedule prior to the Effective Time of the
Reorganization but will not, without the prior approval of
each corresponding Acquiring Fund, acquire any additional
securities other than securities that such Acquiring Fund is
permitted to purchase in accordance with its stated investment
objective and policies. At least ten (10) business days prior
to the Closing Date, each Acquiring Fund will advise each
corresponding Acquired Fund of any investments of such
Acquired Fund shown on such schedule that such Acquiring Fund
would not be permitted to hold, pursuant to its stated
investment objective and policies or otherwise. Each Acquired
Fund, if requested by the corresponding Acquiring Fund, will
dispose of any such securities prior to the Closing Date to
the extent practicable and consistent with applicable legal
requirements. In addition, if it is determined that the
investment portfolios of an Acquired Fund and its
corresponding Acquiring Fund, when aggregated, would contain
investments exceeding certain percentage limitations
applicable to the Acquiring Fund, such Acquired Fund, if
requested by the corresponding Acquiring Fund, will dispose of
a sufficient amount of such investments as may be necessary to
avoid violating such limitations as of the Effective Time of
the Reorganization.
(d) The Fund Assets shall be transferred and conveyed to the
Acquiring Funds on the following basis:
(1) In exchange for the transfer of the Fund Assets, each
Acquiring Fund shall simultaneously issue to the
corresponding Acquired Fund at the Effective Time of the
Reorganization full and fractional shares of such
Acquiring Fund, as set forth in Schedule A attached
hereto, having an aggregate net asset value equal to the
net value of the Fund Assets minus Liabilities so conveyed
and assumed, all determined in accordance with this
Agreement. In this regard, the number of full and
fractional shares of the Acquiring Funds delivered to each
Acquired Fund shall be determined by dividing the value of
the Fund Assets minus Liabilities, computed in the manner
and as of the time and date set forth in this Agreement,
by the net asset value of one Acquiring Fund share of such
designated class, computed in the manner and as of the
time and date set forth in this Agreement.
(2) The net asset value of shares to be delivered by each
Acquiring Fund, and the net value of the Fund Assets minus
Liabilities to be conveyed by each Acquired Fund and
assumed by the Acquiring Funds, shall, in each case, be
determined as of the Valuation Time as defined in Section
3. The net asset value of shares of the Acquiring Funds
shall be computed in accordance with its then current
valuation procedures. In determining the value of the Fund
Assets, each security to be included in the Fund Assets
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shall be priced in accordance with each Acquiring Fund's
then current valuation procedures.
2. Liquidation of Each Acquired Fund. At the Effective Time of the
Reorganization, each Acquired Fund shall make a liquidating
distribution to its shareholders as follows: Shareholders of
record of an Acquired Fund shall be credited with full and
fractional shares of the respective shares that are issued by the
corresponding Acquiring Fund in connection with the
Reorganization corresponding to the Acquired Fund shares that are
held of record by the shareholder at the Effective Time of the
Reorganization. Each such shareholder also shall have the right
to receive any unpaid dividends or other distributions which were
declared before the Effective Time of the Reorganization with
respect to the Acquired Fund shares that are held of record by
the shareholder at the Effective Time of the Reorganization, and
Funds Trust shall record on its books the ownership of the
respective Acquiring Fund shares by such shareholders (the
"Transferor Record Holders"). All of the issued and outstanding
shares of an Acquired Fund at the Effective Time of the
Reorganization shall be redeemed and canceled on the books of
Reserves at such time. As soon as reasonably possible after the
Effective Time of the Reorganization, Reserves shall wind up the
affairs of each Acquired Fund and shall file any final regulatory
reports, including but not limited to any Form N-SAR and Rule
24f-2 filings, with respect to each Acquired Fund, and also shall
take all other steps as are necessary and proper to effect the
termination or declassification of the Acquired Funds in
accordance with all applicable laws. Subject to the provisions of
this Agreement at an appropriate time as determined by the
officers of Reserves, upon the advice of counsel, Reserves will
be dissolved and unwound under the laws of the Commonwealth of
Massachusetts and de-registered as an investment company under
the 1940 Act.
3. Valuation Time. The "Valuation Time" shall be the time as of
which the net asset value of each class of shares of the Acquired
Funds and the Acquiring Funds is determined pursuant to their
respective valuation procedures on the Closing Date or such
earlier or later time as may be mutually agreed to in writing by
the parties hereto.
4. Certain Representations, Warranties and Agreements of Reserves on
behalf of the Acquired Funds. Reserves, for itself and, where
appropriate, on behalf of each Acquired Fund, represents and
warrants to, and agrees with, Funds Trust, on behalf of each
Acquiring Fund as follows, with such representations, warranties
and agreements made on behalf of the Acquired Funds on a several
(and not joint, or joint and several) basis:
(a) Reserves is a business trust, duly established, validly
existing and in good standing under the laws of the
Commonwealth of Massachusetts. Reserves 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) Reserves has the power to own all of its properties and assets
and to consummate the transactions contemplated herein, and
has all necessary federal, state and local authorizations to
carry on its business as now being conducted and to consummate
the transactions contemplated by this Agreement.
(c) This Agreement has been duly authorized by the Board of
Trustees of Reserves on behalf of each Acquired Fund, and has
been executed and delivered by duly authorized officers of
Reserves, and 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 Agreement does not, and, subject to the approval of
shareholders referred to in Section 7, the consummation of the
transactions contemplated by this Agreement will not, violate
the Declaration of Trust or the By-Laws of Reserves, or any
material agreement or arrangement to which Reserves is a party
or by which it is bound.
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(d) Each Acquired Fund has elected to qualify and has qualified as
a regulated investment company under Part I of Subchapter M of
Subtitle A, Chapter 1, of the Code, as of and since its first
taxable year; each has been a regulated investment company
under such Part of the Code at all times since the end of its
first taxable year when it so qualified; and each qualifies
and shall continue to qualify as a regulated investment
company for its taxable year ending upon its liquidation.
(e) Reserves has valued, and will continue to value, the portfolio
securities and other assets of the Acquired Funds in
accordance with applicable legal requirements.
(f) The combined proxy statement/prospectus and form of proxy
included within Funds Trust's registration statement on Form
N-14 (the "N-14 Registration Statement") and the proxy
statement and form of proxy included within Reserves's
Schedule 14A (the "Proxy Statement"), from their respective
effective dates with the SEC through the time of the
shareholder meeting(s) referred to in Section 7 and the
Effective Time of the Reorganization, insofar as they relate
to Reserves, or the Acquired Funds (i) shall comply in all
material respects with the provisions of the Securities Act of
1933, as amended (the "1933 Act"), the Securities Exchange Act
of 1934, as amended (the "1934 Act") and the 1940 Act, the
rules and regulations thereunder, and applicable 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.
(g) All of the issued and outstanding shares of Reserves's
Acquired Funds have been validly issued and are 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.
(h) Reserves shall operate the business of the Acquired Funds in
the ordinary course between the date hereof and the Effective
Time of the Reorganization, except that Reserves shall
complete all measures in respect of the Acquired Funds prior
to the Effective Time of the Reorganization to ensure that
each Reorganization qualifies as a "reorganization" within the
meaning of Section 368(a) of the Code, regardless of whether
such measures are in the ordinary course. It is understood
that such ordinary course of business will include the
declaration and payment of customary dividends and
distributions and any other dividends and distributions deemed
advisable in anticipation of the Reorganizations.
Notwithstanding anything herein to the contrary, Reserves
shall take all appropriate action necessary in order for
Reserves to receive the opinion provided for in Section 9(f).
(i) At the Effective Time of the Reorganization, Reserves's
Acquired Funds will have good and marketable title to the Fund
Assets and full right, power and authority to assign, deliver
and otherwise transfer such assets.
(j) At the Effective Time of the Reorganization, all federal and
other tax returns and reports of the Acquired Funds required
by law to have been filed by such time shall have been filed,
and all federal and other taxes shall have been paid so far as
due, or provision shall have been made for the payment thereof
and, to the best knowledge of management of Reserves, no such
return or report shall be currently under audit and no
assessment shall have been asserted with respect to such
returns or reports.
5. Certain Representations, Warranties and Agreements of Funds Trust
on behalf of the Acquiring Funds. Funds Trust, on behalf of itself
and where appropriate, on behalf of each Acquiring Fund,
represents and warrants to, and agrees with, Reserves on behalf of
each Acquired Fund as follows, with such representations,
warranties and agreements made on behalf of the Acquiring Funds on
a several (and not joint, or joint and several) basis:
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(a) Funds Trust is a statutory business trust duly formed, validly
existing and in good standing under the laws of the State of
Delaware and 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) Funds Trust has the power to own all of its properties and
assets and to consummate the transactions contemplated herein,
and has all necessary federal, state and local authorizations
to carry on its business as now being conducted and to
consummate the transactions contemplated by this Agreement.
(c) This Agreement has been duly authorized by the Board of
Trustees of Funds Trust on behalf of each Acquiring Fund, and
executed and delivered by duly authorized officers of Funds
Trust, and 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 Agreement does not, and the consummation of the
transactions contemplated by this Agreement will not, violate
the Amended and Restated Declaration of Trust of Funds Trust
or any material agreement or arrangement to which it is a
party or by which it is bound.
(d) Each Acquiring Fund has elected to qualify and has qualified
as a regulated investment company under Part I of Subchapter M
of Subtitle A, Chapter 1, of the Code, as of and since its
first taxable year; each has been a regulated investment
company under such Part of the Code at all times since the end
of its first taxable year when it so qualified; and each
qualifies and shall continue to qualify as a regulated
investment company for its current taxable year.
(e) Funds Trust has valued, and will continue to value, the
portfolio securities and other assets of the Acquiring Funds
in accordance with applicable legal requirements.
(f) The N-14 Registration Statement and the Proxy Statement, from
their respective effective dates with the SEC through the time
of the shareholder meeting(s) referred to in Section 7 and at
the Effective Time of the Reorganization, insofar as it
relates to Funds Trust, or the Acquiring Funds (i) shall
comply in all material respects with the 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.
(g) The shares of the Acquiring Funds to be issued and delivered
to the corresponding Acquired Funds for the account of the
shareholders of each Acquired Fund, pursuant to the terms
hereof, shall have been duly authorized as of the Effective
Time of the Reorganization and, when so issued and delivered,
shall be duly and validly issued, fully paid and
non-assessable, and no shareholder of the Acquiring Funds
shall have any preemptive right of subscription or purchase in
respect thereto.
(h) All of the issued and outstanding shares of the Acquiring
Funds have been validly issued and are 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.
(i) Funds Trust shall operate the business of the Acquiring Funds
in the ordinary course between the date hereof and the
Effective Time of the Reorganization, it being understood that
such ordinary course of business will include the declaration
and payment of customary dividends and distributions and any
other dividends and
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distributions deemed advisable in anticipation of the
Reorganizations. Notwithstanding anything herein to the
contrary, Funds Trust shall take all appropriate action
necessary in order for Funds Trust to receive the opinion
provided for in Section 10(d).
(j) At the Effective Time of the Reorganization, all federal and
other tax returns and reports of the Acquiring Funds required
by law to have been filed by such time shall have been filed,
and all federal and other taxes shall have been paid so far as
due, or provision shall have been made for the payment thereof
and, to the best knowledge of management of Funds Trust, no
such return or report shall be currently under audit and no
assessment shall have been asserted with respect to such
returns or reports.
6. Regulatory Filings. Funds Trust has filed the N-14 Registration
Statement with the SEC and Reserves has filed the Proxy Statement
with the SEC.
7. Shareholder Action. After the effective date of the N-14
Registration Statement and the Proxy Statement, Reserves shall
hold a meeting(s) of the shareholders of each Acquired Fund for
the purpose of considering and voting upon:
(a) approval of this Agreement and the Reorganization
contemplated hereby; and
(b) such other matters as may be determined by the Board of
Trustees of Reserves.
8. Closing Date, Effective Time of the Reorganization. The "Closing
Date" shall be May 10, 2002 for all Funds, except Nations
California Municipal Bond Fund, which shall be May 17, 2002, or
such earlier or later dates as may be mutually agreed in writing
by the parties hereto. Delivery of the Fund Assets and each class
of shares of the Acquiring Fund to be issued pursuant to Section
1 and the liquidation of the Acquired Funds pursuant to Section 2
shall occur on the day following the Closing Date, whether or not
such day is a business day, or on such other date, and at such
place and time, as may be mutually agreed in writing, by the
parties hereto. The date and time at which such actions are taken
are referred to herein as the "Effective Time of the
Reorganization." To the extent any Fund Assets are, for any
reason, not transferred at the Effective Time of the
Reorganization, Reserves shall cause such Fund Assets to be
transferred in accordance with this Agreement at the earliest
practicable date thereafter.
9. Conditions to Funds Trust's Obligations on Behalf of the
Acquiring Funds. The obligations of Funds Trust hereunder shall
be subject to the following conditions precedent:
(a) This Agreement and the Reorganization shall have been
approved by the Board of Trustees of Reserves and by a
requisite vote of the shareholders of the Acquired Funds in
the manner required by Reserves's Declaration of Trust,
By-Laws, applicable law and this Agreement.
(b) All representations and warranties of Reserves made in this
Agreement shall be true and correct in all material respects
as if made at and as of the Valuation Time and the Effective
Time of the Reorganization.
(c) Reserves shall have delivered to Funds Trust a statement of
assets and liabilities of each Acquired Fund, showing the
tax basis of such assets for federal income tax purposes by
lot and the holding periods of such assets, as of the
Valuation Time.
(d) Reserves shall have duly executed and delivered to Funds
Trust such bills of sale, assignments, certificates and
other instruments of transfer ("Transfer Documents") as
Funds Trust may deem necessary or desirable to transfer all
of the Acquired Funds' rights, title and interest in and to
the Fund Assets.
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(e) Reserves shall have delivered a certificate executed in its
name executed by an appropriate officer, in a form
reasonably satisfactory to Funds Trust and dated as of the
Closing Date, to the effect that the representations and
warranties of Reserves on behalf of each Acquired Fund made
in this Agreement are true and correct at and as of the
Valuation Time and that, to the best of its knowledge, the
Fund Assets include only assets which the corresponding
Acquiring Fund may properly acquire under its investment
objectives, policies and limitations and may otherwise be
lawfully acquired by such Acquiring Fund.
(f) Funds Trust shall have received an opinion of Xxxxxxxx &
Xxxxxxxx LLP, upon which each Acquiring Fund and its
shareholders may rely, based upon representations made in
certificates provided by Reserves, and/or its affiliates
and/or principal shareholders of the Acquired Funds to
Xxxxxxxx & Xxxxxxxx LLP, addressed to Funds Trust in a form
reasonably satisfactory to it, and dated as of the Closing
Date, substantially to the effect that, for federal income
tax purposes, each Reorganization will qualify as a
"reorganization" within the meaning of Section 368(a) of the
Code, and each Acquired Fund and each Acquiring Fund will
each be a "party to a reorganization," within the meaning of
Section 368(b) of the Code, with respect to each
Reorganization.
(g) The N-14 Registration Statement and the Proxy Statement
shall have become effective and no stop order suspending the
effectiveness shall have been instituted, or to the
knowledge of Reserves, contemplated by the SEC.
(h) 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, this Agreement or the
transactions contemplated herein.
(i) 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
transactions contemplated by this Agreement under Section
25(c) of the 1940 Act.
(j) Reserves on behalf of each Acquired Fund shall have
performed and complied in all material respects with each of
its agreements and covenants required by this Agreement to
be performed or complied with by it prior to or at the
Valuation Time and the Effective Time of the Reorganization.
(k) Reserves shall have received a duly executed instrument
whereby each Acquiring Fund assumes all of the liabilities
of Reserves's corresponding Acquired Fund.
(l) Except to the extent prohibited by Rule 19b-1 under the 1940
Act, prior to the Valuation Time, each Acquired Fund shall
have declared a dividend or dividends, with a record date
and ex-dividend date prior to the Valuation Time, which,
together with all previous dividends, shall have the effect
of distributing to its shareholders all of its previously
undistributed (i) "investment company taxable income" within
the meaning of Section 852(b) of the Code (determined
without regarding Section 852(b)(2)(D) of the Code), (ii)
excess of (A) the amount specified in Section
852(a)(1)(B)(i) of the Code over (B) the amount specified in
Section 852(a)(1)(B)(ii) of the Code, and (iii) "net capital
gain" (within the meaning of Section 1222(11) of the Code),
if any, realized in taxable periods or years ending on or
before Effective Time.
10. Conditions to Reserves's Obligations on behalf of the Acquired
Funds. The obligations of Reserves hereunder shall be subject to
the following conditions precedent:
(a) This Agreement and the Reorganization shall have been
approved by the Board of Trustees of Funds Trust on behalf
of each Acquiring Fund.
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(b) All representations and warranties of Funds Trust made in
this Agreement shall be true and correct in all material
respects as if made at and as of the Valuation Time and the
Effective Time of the Reorganization.
(c) Funds Trust shall have delivered a certificate executed in
its name by an appropriate officer, in a form reasonably
satisfactory to Reserves and dated as of the Closing Date,
to the effect that the representations and warranties of
each Acquiring Fund made in this Agreement are true and
correct at and as of the Valuation Time.
(d) Reserves shall have received an opinion of Xxxxxxxx &
Xxxxxxxx LLP, upon which each Acquired Fund and its
shareholders may rely, based upon representations made in
certificates provided by Funds Trust, and/or its affiliates
and/or principal shareholders of the Acquiring Funds to
Xxxxxxxx & Xxxxxxxx LLP, addressed to Reserves in a form
reasonably satisfactory to it, and dated as of the Closing
Date, substantially to the effect that, for federal income
tax purposes, the Reorganization will qualify as a
"reorganization" within the meaning of Section 368(a) of the
Code, and the Acquired Funds and the Acquiring Funds will
each be a "party to a reorganization," within the meaning of
Section 368(b) of the Code, with respect to each
Reorganization.
(e) The N-14 Registration Statement and the Proxy Statement
shall have become effective and no stop order suspending
such effectiveness shall have been instituted or, to the
knowledge of Funds Trust, contemplated by the SEC.
(f) 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 this Agreement or the transactions
contemplated herein.
(g) 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
transactions contemplated by this Agreement under Section
25(c) of the 1940 Act.
(h) Funds Trust on behalf of each Acquiring Fund shall have
performed and complied in all material respects with each of
its agreements and covenants required by this Agreement to
be performed or complied with by it prior to or at the
Valuation Time and the Effective Time of the Reorganization.
11. Tax Matters
(a) Reserves and Funds Trust hereby represent and warrant and
that each shall use its best efforts to cause the
Reorganization to qualify, and will not (whether before or
after consummation of the Reorganization) take any actions
that could prevent the Reorganization from qualifying, as a
"reorganization" under the provisions of Section 368 of the
Code.
(b) Except where otherwise required by law, the parties shall
not take a position on any tax returns inconsistent with the
treatment of the Reorganization for tax purposes as a
"reorganization," within the meaning of Section 368(a) of
the Code and each Acquiring Fund and each Acquired Fund will
comply with the record keeping and information filing
requirements of Section 1.368-3 of the Treasury Regulation
in accordance therewith.
12. Survival of Representations and Warranties. The representations
and warranties of Funds Trust on behalf of each Acquiring Fund and
Reserves on behalf of each Acquired Fund set forth in this
Agreement shall survive the delivery of the Fund Assets to such
Acquiring Fund and the issuance of the shares of each Acquiring
Fund at the Effective Time of the Reorganization to the
corresponding Acquired Fund shareholders.
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13. Termination of Agreement. This Agreement may be terminated by a
party at or, in the case of Subsection 13(c), below, at any time
prior to, the Effective Time of the Reorganization by a vote of a
majority of its Board members as provided below:
(a) By Funds Trust on behalf of its Acquiring Funds if the
conditions set forth in Section 9 are not satisfied as
specified in said Section;
(b) By Reserves on behalf of its Acquired Funds if the
conditions set forth in Section 10 are not satisfied as
specified in said Section;
(c) By mutual written consent of Funds Trust and Reserves.
14. Governing Law. This Agreement 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.
15. Brokerage Fees and Expenses.
(a) Funds Trust represents and warrants that there are no brokers
or finders entitled to receive any payments in connection with
the transactions provided for herein.
(b) The Acquiring Funds will be responsible for the expenses
related to entering into and carrying out the provisions of
this Agreement, whether or not the transactions contemplated
hereby are consummated. To the extent that such expenses
exceed contractual total operating expense ratio caps in place
for any such Acquiring Fund, Banc of America Advisors, LLC or
any of its affiliates will bear such excess expenses.
16. Amendments. This Agreement may be amended, modified or
supplemented in such manner as may be mutually agreed upon in
writing by the authorized officers of Reserves, acting on behalf
of the Acquired Funds or Funds Trust, acting on behalf of the
Acquiring Funds; provided, however, that following the meeting of
the shareholders of an Acquired Fund, no such amendment may have
the effect of changing the provisions for determining the number
of shares of the Acquiring Funds to be issued to the Transferor
Record Holders under this Agreement to the detriment of such
Transferor Record Holders, or otherwise materially and adversely
affecting an Acquired Fund, without such Acquired Fund obtaining
its shareholders' further approval:
(a) At any time prior to or (to the fullest extent permitted by
law) after approval of this Agreement by the shareholders of
an Acquired Fund, Reserves on behalf of an Acquired Fund, may
waive any breach by Funds Trust, on behalf of an Acquiring
Fund, or the failure to satisfy any of the conditions to its
obligations (such waiver to be in writing and signed by an
officer of such registered investment companies);
(b) At any time prior to or (to the fullest extent permitted by
law) after approval of this Agreement by the shareholders of
an Acquired Fund, Funds Trust, on behalf of an Acquiring Fund,
may waive any breach by Reserves on behalf of an Acquired
Fund, or the failure to satisfy any of the conditions to
either of their obligations (such waiver to be in writing and
signed by an officer of such registered investment companies).
17. Miscellaneous. The Reorganization of an Acquired Fund into a
corresponding Acquiring Fund (including the representations and
warranties and conditions precedent made or required to occur in
connection therewith) shall not be conditioned on any other
Reorganization contemplated either under this Agreement or any
other agreement and plan of reorganization.
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers designated below as of the date first
written above.
THE CAPITOL MUTUAL FUNDS
(doing business as Nations
Reserves)
On behalf of the Acquired Funds
identified on Schedule A
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Xxxxxxx X. Xxxxx, Xx.
Secretary and Treasurer
NATIONS FUNDS TRUST
On behalf of the Acquiring Funds
identified on Schedule A
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Xxxxxxx X. Xxxxx, Xx.
Secretary and Treasurer
10
SCHEDULE A
SHAREHOLDERS OWNING SHARES OF THE FOLLOWING WOULD RECEIVE SHARES OF THE FOLLOWING
ACQUIRED FUND AND CLASSES OF RESERVES: ACQUIRING FUND AND CLASSES OF FUNDS TRUST:
Nations Blue Chip Fund -> Nations Strategic Growth Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations Government Reserves Nations Government Reserves
Capital Class Shares Capital Class Shares
Liquidity Class Shares Liquidity Class Shares
Adviser Class Shares Adviser Class Shares
Market Class Shares Market Class Shares
Daily Class Shares Daily Class Shares
Service Class Shares Service Class Shares
Investor Class Shares Investor Class Shares
Trust Class Shares Trust Class Shares
Institutional Class Shares Institutional Class Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations Cash Reserves -> Nations Cash Reserves
Capital Class Shares Capital Class Shares
Liquidity Class Shares Liquidity Class Shares
Adviser Class Shares Adviser Class Shares
Market Class Shares Market Class Shares
Daily Class Shares Daily Class Shares
Service Class Shares Service Class Shares
Investor Class Shares Investor Class Shares
Trust Class Shares Trust Class Shares
Institutional Class Shares Institutional Class Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations Treasury Reserves -> Nations Treasury Reserves
Capital Class Shares Capital Class Shares
Liquidity Class Shares Liquidity Class Shares
Adviser Class Shares Adviser Class Shares
Market Class Shares Market Class Shares
Daily Class Shares Daily Class Shares
Service Class Shares Service Class Shares
Investor Class Shares Investor Class Shares
Trust Class Shares Trust Class Shares
Institutional Class Shares Institutional Class Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
11
SHAREHOLDERS OWNING SHARES OF THE FOLLOWING WOULD RECEIVE SHARES OF THE FOLLOWING
ACQUIRED FUND AND CLASSES OF RESERVES: ACQUIRING FUND AND CLASSES OF FUNDS TRUST:
Nations Municipal Reserves Nations Municipal Reserves
Capital Class Shares Capital Class Shares
Liquidity Class Shares Liquidity Class Shares
Adviser Class Shares Adviser Class Shares
Market Class Shares Market Class Shares
Daily Class Shares Daily Class Shares
Service Class Shares Service Class Shares
Investor Class Shares Investor Class Shares
Trust Class Shares Trust Class Shares
Institutional Class Shares Institutional Class Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations Money Market Reserves -> Nations Money Market Reserves
Capital Class Shares Capital Class Shares
Liquidity Class Shares Liquidity Class Shares
Adviser Class Shares Adviser Class Shares
Market Class Shares Market Class Shares
Daily Class Shares Daily Class Shares
Service Class Shares Service Class Shares
Investor Class Shares Investor Class Shares
Trust Class Shares Trust Class Shares
Institutional Class Shares Institutional Class Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations California Tax-Exempt Reserves Nations California Tax-Exempt Reserves
Capital Class Shares Capital Class Shares
Liquidity Class Shares Liquidity Class Shares
Adviser Class Shares Adviser Class Shares
Market Class Shares Market Class Shares
Daily Class Shares Daily Class Shares
Service Class Shares Service Class Shares
Investor Class Shares Investor Class Shares
Trust Class Shares Trust Class Shares
Institutional Class Shares Institutional Class Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations California Municipal Bond Fund Nations California Municipal Bond Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations Convertible Securities Fund -> Nations Convertible Securities Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations Emerging Markets Fund -> Nations Emerging Markets Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
12
SHAREHOLDERS OWNING SHARES OF THE FOLLOWING WOULD RECEIVE SHARES OF THE FOLLOWING
ACQUIRED FUND AND CLASSES OF RESERVES: ACQUIRING FUND AND CLASSES OF FUNDS TRUST:
Nations International Value Fund -> Nations International Value Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations International Equity Fund -> Nations International Equity Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
Nations Intermediate Bond Fund -> Nations Intermediate Bond Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares
13
