EXHIBIT (4)
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of May 9, 2001 (the
"Agreement"), between THE DREYFUS/LAUREL FUNDS, INC., a Maryland corporation
(the "Company"), on behalf of DREYFUS DISCIPLINED SMALLCAP STOCK FUND (the
"Fund"), and MPAM FUNDS TRUST, an unincorporated Massachusetts business trust
(the "Trust"), on behalf of MPAM SMALL CAP STOCK FUND (the "Acquiring Fund").
The parties wish to effect a reorganization described in Section
368(a)(1)(C) of the United States Internal Revenue Code of 1986, as amended (the
"Code"), and this Agreement is intended to be and is adopted as a "plan of
reorganization" within the meaning of the regulations under the Code (the
"Regulations"). The reorganization (the "Reorganization") will consist of the
transfer of all of the assets of the Fund, in exchange for shares (in classes
designated Investor class (the "Investor Shares") and MPAM class (the "MPAM
Shares")) of beneficial interest, par value $0.001 per share, of the Acquiring
Fund (collectively, the "Acquiring Fund Shares"), and the assumption by the
Acquiring Fund of certain liabilities of the Fund and the distribution, after
the Closing Date hereinafter referred to, of the Acquiring Fund Shares to the
holders of the Fund's existing shares of common stock, par value $.001 (the
"Fund Shares") in liquidation of the Fund as provided herein, all upon the terms
and conditions hereinafter set forth in this Agreement.
WHEREAS, the Fund is a diversified series of the Company, a
registered open-end management investment company, and the Acquiring Fund is a
diversified series of the Trust, a registered open-end management investment
company, and the Fund owns securities which are assets of the character in which
the Acquiring Fund is permitted to invest;
WHEREAS, the Fund is authorized to issue its existing shares of
common stock, and the Acquiring Fund is authorized to issue Investor class and
MPAM class shares of beneficial interest; and
WHEREAS, the Board of the Trust has determined that the exchange
of all of the assets of the Fund and certain liabilities of the Fund for
Acquiring Fund Shares, and the assumption of such liabilities is in the best
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interests of the Acquiring Fund and that the interests of the Acquiring Fund's
existing shareholders would not be diluted as a result of this transaction; and
WHEREAS, the Board of the Company has determined that the
exchange of all of the assets and stated liabilities of the Fund for Acquiring
Fund Shares and the assumption of such liabilities by the Acquiring Fund is in
the best interests of the Fund and that the interests of the Fund's existing
shareholders would not be diluted as a result of this transaction:
NOW THEREFORE, in consideration of the premises and of the
covenants and agreements hereinafter set forth, the parties agree as follows:
1. TRANSFER OF ASSETS OF THE FUND IN EXCHANGE FOR THE ACQUIRING FUND
SHARES AND ASSUMPTION OF FUND LIABILITIES AND LIQUIDATION OF THE
FUND.
1.1 Subject to the requisite approval of the shareholders of the
Fund and to the other terms and conditions contained herein:
(a) The Fund shall assign, transfer and convey to the
Acquiring Fund at the Closing (as defined in paragraph 3.1) all of the Assets of
the Fund (as defined in paragraph 1.2).
(b) The Acquiring Fund agrees in exchange therefor at
the Closing (i) to issue and deliver to the Fund the number and classes of full
and fractional Acquiring Fund Shares, determined as set forth in paragraph 2.3,
and (ii) to assume the Liabilities of the Fund (as defined in paragraph 1.3). In
lieu of delivering certificates for the Acquiring Fund Shares, the Acquiring
Fund shall credit the Acquiring Fund Shares to the Fund's account on the books
of the Acquiring Fund and shall deliver a confirmation thereof to the Fund.
1.2 (a) The assets of the Fund to be acquired by the
Acquiring Fund (the "Assets") shall consist of all property, including without
limitation, all cash, cash equivalents, securities, commodities and futures
interests, dividend and interest receivables, claims and rights of action that
are owned by the Fund, and any deferred or prepaid expenses shown as Assets on
the books of the Fund, on the Closing Date (as defined in paragraph 3.1). The
Assets shall be invested at all times through the Closing in a manner that
ensures compliance with paragraph 4.1(i).
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(b) The Fund has provided the Acquiring Fund with a
list of all of its property, including all of the Assets, as of the date of
execution of this Agreement. The Fund reserves the right to sell any of the
Assets in the ordinary course of its business. The Acquiring Fund will, within a
reasonable time prior to the Closing Date, furnish the Fund with a list of any
Assets on such list that do not conform to the Acquiring Fund's investment
objective, policies and restrictions or that the Acquiring Fund otherwise does
not desire to hold. The Fund will dispose of such Assets prior to the Closing
Date to the extent practicable and to the extent the Fund would not be affected
adversely by such a disposition. In addition, if it is determined that the
portfolios of the Fund and the Acquiring Fund, when aggregated, would contain
investments exceeding certain percentage limitations imposed upon the Acquiring
Fund with respect to such investments, the Fund, if requested to do so by the
Acquiring Fund, will dispose of and/or reinvest a sufficient amount of such
investments as may be necessary to avoid violating such limitations as of the
Closing Date.
1.3 The Fund will endeavor to discharge all of its known
liabilities and obligations prior to the Closing Date. At the Closing, the
Acquiring Fund shall assume all liabilities, debts, obligations, expenses,
costs, charges and reserves reflected on an unaudited statement of assets and
liabilities of the Fund prepared by The Dreyfus Corporation ("Dreyfus") as of
the Valuation Date (as defined in paragraph 2.1) (collectively, the
"Liabilities").
1.4 Delivery of the Assets shall be made on the Closing Date and
shall be delivered to Mellon Bank, N.A., the Acquiring Fund's custodian (the
"Custodian"), for the account of the Acquiring Fund, with all securities not in
bearer or book-entry form duly endorsed, or accompanied by duly executed
separate assignments or stock powers, in proper form for transfer, with
signatures guaranteed, and with all necessary stock transfer stamps, sufficient
to transfer good and marketable title thereto (including all accrued interest
and dividends and rights pertaining thereto) to the Custodian for the account of
the Acquiring Fund free and clear of all liens, encumbrances, rights,
restrictions and claims. All cash delivered shall be in the form of immediately
available funds payable to the order of the Custodian for the account of the
Acquiring Fund.
1.5 The Fund will pay or cause to be paid to the Acquiring Fund
any interest received on or after the Closing Date with respect to Assets
transferred to the Acquiring Fund hereunder. The Fund will transfer to the
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Acquiring Fund any distributions, rights or other assets received by the Fund
after the Closing Date as distributions on or with respect to the securities
transferred. Such Assets shall be deemed included in Assets transferred to the
Acquiring Fund on the Closing Date and shall not be separately valued.
1.6 As soon after the Closing Date as is conveniently practicable
(the "Liquidation Date"), the Fund will liquidate and distribute pro rata in
accordance with this paragraph to the Fund's shareholders of record, determined
as of the close of business on the Closing Date (the "Fund Shareholders"), the
Acquiring Fund Shares received by the Fund pursuant to paragraph 1.1. Such
liquidation and distribution will be accomplished by transferring the Acquiring
Fund Shares of each class then credited to the account of the Fund on the books
of the Acquiring Fund to open accounts on such books in the names of the Fund
Shareholders entitled to receive the applicable class and representing the
respective pro rata number of full and fractional Acquiring Fund Shares of such
class to which each such Fund Shareholder is entitled. For these purposes, a
Fund Shareholder shall be entitled to receive, with respect to each Fund Share
held, that number of full and fractional Acquiring Fund Shares of the applicable
class equal to the net asset value of a Fund Share as of the Valuation Date
(determined in accordance with paragraph 2.1) divided by the net asset value of
one Acquiring Fund Share of the applicable class, as of the Valuation Date
(determined in accordance with paragraph 2.2). For purposes of this paragraph,
MPAM Shares shall be the applicable class for a Fund Shareholder who is, on the
Closing Date, a Mellon Private Asset Management client that maintains a
qualified fiduciary, custody or other account with Mellon Bank, N.A., or Boston
Safe Deposit and Trust Company, or their bank affiliates (collectively, "MPAM
Clients"), and Investor Shares shall be the applicable class for a Fund
Shareholder who is not an MPAM Client on the Closing Date. All issued and
outstanding Fund Shares will be canceled on the books of the Fund simultaneously
with the distribution of Acquiring Fund Shares to former holders of Fund Shares.
1.7 Ownership of Acquiring Fund Shares will be shown on the books
of the Acquiring Fund's transfer agent. Shares of the Acquiring Fund will be
issued in the manner described in the Acquiring Fund's current prospectus and
statement of additional information.
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1.8 Any transfer taxes payable upon issuance of the Acquiring
Fund Shares in a name other than the registered holder of the Acquiring Fund
Shares on the books of the Fund as of that time shall, as a condition of such
issuance and transfer, be paid by the person to whom such Acquiring Fund Shares
are to be issued and transferred.
1.9 Any reporting responsibility of the Fund is and shall remain
the responsibility of the Fund up to and including the Closing Date and such
later date on which the Fund's existence is terminated.
2. VALUATION.
2.1 The value of the Assets and the amount of the Liabilities,
and the net asset value of a Fund Share, shall each be computed as of the close
of trading on the floor of the New York Stock Exchange ("NYSE") (currently, 4:00
p.m., New York time), except that options and futures contracts will be valued
15 minutes after the close of trading on the floor of the NYSE, on the Closing
Date (such time and date being hereinafter called the "Valuation Date"), using
the valuation procedures set forth in the Company's Articles of Incorporation,
as the same may have been amended (the "Articles"), and the Fund's then-current
prospectus or statement of additional information.
2.2 The net asset value of an Acquiring Fund Share of each
respective class shall be the net asset value per share computed as of the
Valuation Date, using the valuation procedures set forth in the Trust's Amended
and Restated Agreement and Declaration of Trust dated June 5, 2000 (the
"Declaration of Trust") and the Acquiring Fund's then-current prospectus or
statement of additional information.
2.3 The number of Acquiring Fund Shares of MPAM class and
Investor class (including fractional shares, if any), respectively, to be issued
in exchange for the Fund's net assets shall be determined by dividing the value
of the aggregate net assets attributable to Fund Shares held by MPAM Clients and
by Fund Shareholders who are not MPAM Clients, using the valuation procedures
referred to in paragraph 2.1, by the net asset value of one share of MPAM class
and Investor class of the Acquiring Fund, respectively, determined in accordance
with paragraph 2.2.
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2.4 All computations and calculations of value shall be made by
Dreyfus in accordance with its regular practices as fund accountant for the Fund
and the Acquiring Fund, respectively.
3. CLOSING AND CLOSING DATE.
3.1 Consummation of the Reorganization and related acts (the
"Closing") shall occur on October 1, 2001 or such other date as to which the
parties may mutually agree (the "Closing Date"). All acts taking place at the
Closing shall be deemed to take place simultaneously as of the close of business
on the Closing Date unless otherwise provided. The Closing shall be held at 4:30
p.m., New York time, at the offices of Dreyfus, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, or such other time and/or place as the parties may mutually agree.
3.2 The Fund shall deliver to the Acquiring Fund at the Closing a
statement of assets and liabilities, including a schedule of the Assets setting
forth for all portfolio securities thereon their adjusted tax basis and holding
period by lot, as of the Closing, certified by the Company's Treasurer or
Assistant Treasurer. The Custodian shall deliver at the Closing a certificate of
an authorized officer stating that the Assets have been presented for
examination to the Acquiring Fund prior to the Closing Date and have been
delivered in proper form to the Acquiring Fund.
3.3 If on the Valuation Date (a) the NYSE or another primary
trading market for portfolio securities of the Acquiring Fund or the Fund shall
be closed to trading or trading thereon shall be restricted, or (b) trading or
the reporting of trading on the NYSE or elsewhere shall be disrupted so that
accurate appraisal of the value of the net assets of the Acquiring Fund or the
Fund is impracticable, the Closing Date shall be postponed until the first
business day after the day when trading shall have been fully resumed and
reporting shall have been restored.
3.4 The transfer agent for the Fund shall deliver at the Closing
a certificate of an authorized officer stating that its records contain the
names and addresses of the Fund Shareholders and the number and percentage
ownership of outstanding Fund Shares owned by each such shareholder immediately
prior to the Closing. The Acquiring Fund shall issue and deliver a confirmation
evidencing the Acquiring Fund Shares to be credited on the Closing Date to the
Secretary of the Company, or provide evidence satisfactory to the Fund that such
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Acquiring Fund Shares have been credited to the Fund's account on the books of
the Acquiring Fund. At the Closing, each party shall deliver to the other such
bills of sale, checks, assignments, receipts or other documents as such other
party or its counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES.
4.1 The Company represents and warrants to the Trust as
follows:
(a) The Fund is a duly established and designated
series of the Company, a corporation duly organized and validly existing and in
good standing under the laws of State of Maryland, and has power to own all of
its properties and Assets and to carry out this Agreement.
(b) The Company is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end, diversified,
management investment company, and such registration has not been revoked or
rescinded and is in full force and effect.
(c) The Fund is not, and the execution, delivery and
performance of this Agreement will not result, in material violation of the
Company's Articles, or its Bylaws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Fund is a party or by which it
is bound.
(d) The Fund has no material contracts or other
commitments outstanding (other than this Agreement) which will be terminated
with liability to it on or prior to the Closing Date.
(e) No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently pending
or to its knowledge threatened against the Fund or any of its properties or
Assets which, if adversely determined, would materially and adversely affect its
financial condition or the conduct of its business. The Fund knows of no facts
which might form the basis for the institution of such proceedings, and is not a
party to or subject to the provisions of any order, decree or judgment of any
court or governmental body which materially and adversely affects its business
or its ability to consummate the transactions herein contemplated.
(f) The Statements of Assets and Liabilities of the
Fund at October 31, 2000, October 31, 1999, and October 31, 1998, have been
audited by KPMG LLP, independent auditors, and are in accordance with generally
accepted accounting principles, consistently applied, and such statements
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(copies of which have been furnished to the Trust) fairly reflect the financial
condition of the Fund as of such dates, and there are no known contingent
liabilities of the Fund as of such dates not disclosed therein.
(g) Since October 31, 2000, there has not been any
material adverse change in the Fund's financial condition, assets, liabilities
or business other than changes occurring in the ordinary course of business, or
any incurrence by the Fund of indebtedness maturing more than one year from the
date such indebtedness was incurred, except as disclosed on the statement of
assets and liabilities referred to in Section 1.3 hereof.
(h) At the Closing Date, all Federal and other tax
returns and reports of the Fund required by law to have been filed by such dates
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 of the Company's knowledge no such return is currently under audit and
no assessment has been asserted with respect to such returns.
(i) The Fund is a "fund" as defined in section
851(g)(2) of the Code; for each taxable year of its operation , the Fund met all
the requirements of Subchapter M of the Code ("Subchapter M") for qualification
and treatment as a "regulated investment company"; it will continue to meet all
such requirements for its taxable year that includes the Closing Date; and it
has no earnings and profits accumulated in any taxable year to which the
provisions of Subchapter M did not apply to it.
(j) The Liabilities were incurred by the Fund in the
ordinary course of its business.
(k) The Fund is not under the jurisdiction of a court
in a proceeding under Title 11 of the United States Code or similar case within
the meaning of section 368(a)(3)(A) of the Code.
(l) Not more than 25% of the value of the Fund's total
assets (excluding cash, cash items, and U.S. government securities) is invested
in the stock and securities of any one issuer, and not more than 50% of the
value of such assets is invested in the stock and securities of five or fewer
issuers.
(m) The Fund will be terminated as soon as reasonably
practicable after the Reorganization, but in all events within six months after
the Closing Date.
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(n) All issued and outstanding shares of the Fund are,
and at the Closing Date will be, duly and validly issued and outstanding, fully
paid and non-assessable by the Fund. All of the issued and outstanding shares of
the Fund will, at the time of Closing, be held by the persons and in the amounts
set forth in the records of the transfer agent as provided in paragraph 3.4. The
Fund does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Fund's shares, nor is there outstanding any
security convertible into any of the Fund's shares.
(o) On the Closing Date, the Fund will have full right,
power and authority to sell, assign, transfer and deliver the Assets to be
transferred by it hereunder.
(p) The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing Date by all
necessary action on the part of the Company's Board and, subject to the approval
of the Fund Shareholders, this Agreement will constitute the valid and legally
binding obligation of the Fund, enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto, and to general
principles of equity and the discretion of the court (regardless of whether the
enforceability is considered in a proceeding in equity or at law).
(q) The proxy statement of the Fund (the "Proxy
Statement"), included in the Registration Statement referred to in paragraph 5.5
(other than information therein that has been furnished by the Acquiring Fund)
will, on the effective date of the Registration Statement and on the Closing
Date, not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements were made,
not materially misleading.
4.2 The Trust represents and warrants to the Company as follows:
(a) The Acquiring Fund is a duly established and
designated series of the Trust, an unincorporated business trust duly organized
and validly existing under the laws of the Commonwealth of Massachusetts, and
has power to carry on its business as it is now being conducted and to carry out
this Agreement.
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(b) The Trust is registered under the 1940 Act as an
open-end, diversified management investment company, and such registration has
not been revoked or rescinded and is in full force and effect.
(c) The current prospectus and statement of additional
information of the Acquiring Fund conform in all material respects to the
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), and the 1940 Act and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder and do not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not materially misleading.
(d) The Acquiring Fund is not, and the execution,
delivery and performance of this Agreement will not result, in material
violation of the Declaration of Trust or its Bylaws or of any agreement,
indenture, instrument, contract, lease or other undertaking to which the
Acquiring Fund is a party or by which it is bound.
(e) No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently pending
or to its knowledge threatened against the Acquiring Fund or any of its
properties or assets which, if adversely determined, would materially and
adversely affect its financial condition or the conduct of its business. The
Acquiring Fund knows of no facts which might form the basis for the institution
of such proceedings, and is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body which materially and
adversely affects its business or its ability to consummate the transactions
contemplated herein.
(f) The Statement of Assets and Liabilities of the
Acquiring Fund as of September 1, 2000 has been audited by KPMG LLP, independent
auditors, and is in accordance with generally accepted accounting principles,
consistently applied, and such statement (a copy of which has been furnished to
the Fund) fairly reflects the financial condition of the Acquiring Fund as of
such date.
(g) Since September 1, 2000 there has not been any
material adverse change in the Acquiring Fund's financial condition, assets,
liabilities or business other than changes occurring in the ordinary course of
business, or any incurrence by the Acquiring Fund of indebtedness maturing more
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than one year from the date such indebtedness was incurred, except as disclosed
on the Statement of Assets and Liabilities referred to in Section 4.2(f) hereof.
(h) At the Closing Date, all Federal and other tax
returns and reports of the Acquiring Fund required by law then to be filed shall
have been filed, and all Federal and other taxes shown as due on said returns
and reports shall have been paid or provision shall have been made for the
payment thereof.
(i) The Acquiring Fund is a "fund" as defined in
section 851(g)(2) of the Code; for each taxable year of its operation, the
Acquiring Fund met all the requirements of Subchapter M for qualification and
treatment as a regulated investment company; it will continue to meet all such
requirements for its taxable year that includes the Closing Date; and it has no
earnings and profits accumulated in any taxable year to which the provisions of
Subchapter M did not apply to it.
(j) No consideration other than the Acquiring Fund
Shares (and the Acquiring Fund's assumption of the Liabilities) will be issued
in exchange for the Assets in the Reorganization.
(k) The Acquiring Fund has no plan or intention to
issue additional Acquiring Fund Shares following the Reorganization except for
shares issued in the ordinary course of its business as a series of an open-end
investment company; nor does the Acquiring Fund, or any person "related" (within
the meaning of section 1.368-1(e)(3) of the Regulations) to the Acquiring Fund,
have any plan or intention to redeem or otherwise reacquire any Acquiring Fund
Shares issued to the Fund Shareholders pursuant to the Reorganization, other
than through redemptions arising in the ordinary course of that business.
(l) The Acquiring Fund (i) will, after the
Reorganization, continue the "historic business" (within the meaning of section
1.368-1(d)(2) of the Regulations) that the Fund conducted before the
Reorganization, (ii) has no plan or intention to sell or otherwise dispose of,
within one year after the Closing Date, more than one-third (1/3) of the Assets
by value, except for dispositions made in the ordinary course of that business
and dispositions necessary to maintain its status as a regulated investment
company, and (iii) will use a significant portion of the Fund's "historic
business" (within the meaning of section 1.368-1(d)(3) of the Regulations)
assets in that business.
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(m) There is no plan or intention for the Acquiring
Fund to be dissolved or merged into another corporation or business trust or any
"fund" thereof (within the meaning of section 851(g)(2) of the Code) following
the Reorganization.
(n) Immediately after the Reorganization (i) not more
than 25% of the value of the Acquiring Fund's total assets (excluding cash, cash
items, and U.S. government securities) will be invested in the stock and
securities of any one issuer and (ii) not more than 50% of the value of such
assets will be invested in the stock and securities of five or fewer issuers.
(o) The Acquiring Fund does not own, directly or
indirectly, nor on the Closing Date will it own, directly or indirectly, nor has
it owned, directly or indirectly, at any time during the past five years, any
shares of the Fund.
(p) All issued and outstanding shares of the Acquiring
Fund are, and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Acquiring Fund. The Acquiring
Fund does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Acquiring Fund Shares, nor is there
outstanding any security convertible into any Acquiring Fund Shares.
(q) The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing Date by all
necessary action, if any, on the part of the Trust's Trustees and Acquiring Fund
shareholders, and this Agreement will constitute the valid and legally binding
obligation of the Acquiring Fund enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto, and to general
principles of equity and the discretion of the court (regardless of whether the
enforceability is considered in a proceeding in equity or at law).
(r) The Proxy Statement included in the Registration
Statement (only insofar as it relates to the Acquiring Fund and is based on
information furnished by the Acquiring Fund) will, on the effective date of the
Registration Statement and on the Closing Date, not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
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therein or necessary to make the statements therein, in light of the
circumstances under which such statements were made, not materially misleading.
5. COVENANTS OF THE ACQUIRING FUND AND THE FUND.
5.1 The Acquiring Fund and the Fund each will operate its
business in the ordinary course between the date hereof and the Closing Date, it
being understood that such ordinary course of business will include payment of
customary dividends and distributions.
5.2 The Company will call a meeting of the Fund Shareholders to
consider and act upon this Agreement and to take all other action necessary to
obtain approval of the transactions contemplated herein.
5.3 Subject to the provisions of this Agreement, the Acquiring
Fund and the Fund will each take, or cause to be taken, all action, and do or
cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
5.4 As promptly as practicable, but in any case within sixty days
after the Closing Date, the Fund shall furnish the Acquiring Fund, in such form
as is reasonably satisfactory to the Acquiring Fund, a statement of the earnings
and profits of the Fund for Federal income tax purposes which will be carried
over to the Acquiring Fund as a result of Section 381 of the Code and which will
be certified by the Company's President or its Vice President and Treasurer.
5.5 The Company will provide the Acquiring Fund with information
reasonably necessary for the preparation of a prospectus (the "Prospectus")
which will include the Proxy Statement, referred to in paragraph 4.1(q), all to
be included in a Registration Statement on Form N-14 of the Acquiring Fund (the
"Registration Statement"), in compliance with the 1933 Act, the Securities
Exchange Act of 1934, as amended, and the 1940 Act in connection with the
meeting of the Fund Shareholders to consider approval of this Agreement and the
transactions contemplated herein.
5.6 The Acquiring Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the 1940 Act
and such of the state Blue Sky or securities laws as it may deem appropriate in
order to continue its operations after the Closing Date.
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5.7 The Acquiring Fund and the Fund shall cooperate in the
preparation and filing as promptly as practicable with the Commission of an
application, in form and substance reasonably satisfactory to their counsel, for
exemptive relief from the provisions of Section 17 of the 1940 Act, and from any
other provision of the 1940 Act deemed necessary or advisable by such counsel,
to permit consummation of the Reorganization as contemplated herein (the
"Exemptive Application"). The Acquiring Fund and the Fund shall use all
reasonable efforts to obtain the relief requested by the Exemptive Application.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND.
The obligations of the Acquiring Fund to complete the
transactions provided for herein shall be subject, at its election, to the
performance by the Fund of all the obligations to be performed by it hereunder
on or before the Closing Date and, in addition thereto, the following
conditions:
6.1 All representations and warranties of the Company on behalf
of the Fund contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Closing Date with the
same force and effect as if made on and as of the Closing Date.
6.2 The Fund shall have delivered to the Acquiring Fund the
statement of the Fund's assets and liabilities (referred to in paragraph 1.3),
together with the schedule of the Fund's portfolio securities showing the tax
basis of such securities by lot and the holding periods of such securities, as
of the Closing Date, certified by the Treasurer of the Company.
6.3 The Company shall have delivered to the Acquiring Fund on the
Closing Date a certificate executed in its name by the Company's President or
Vice President and its Treasurer, in form and substance satisfactory to the
Acquiring Fund, to the effect that the representations and warranties of the
Company made in this Agreement on behalf of the Fund are true and correct at and
as of the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement, and as to such other matters as the Acquiring
Fund shall reasonably request.
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7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE FUND.
The obligations of the Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquiring Fund of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
7.1 All representations and warranties of the Trust on behalf of
the Acquiring Fund contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Closing Date with the
same force and effect as if made on and as of the Closing Date.
7.2 The Acquiring Fund shall have delivered to the Fund on the
Closing Date a certificate executed in its name by the Trust's President or Vice
President and its Treasurer, in form and substance reasonably satisfactory to
the Fund, to the effect that the representations and warranties of the Trust
made in this Agreement on behalf of the Acquiring Fund are true and correct at
and as of the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement, and as to such other matters as the Fund shall
reasonably request.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
AND THE FUND.
If any of the conditions set forth below does not exist on or
before the Closing Date with respect to the Fund or the Acquiring Fund, the
other party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement.
8.1 This Agreement and the transactions contemplated herein shall
have been approved by the requisite vote of the holders of the outstanding
shares of the Fund in accordance with the provisions of the Company's Articles.
8.2 On the Closing Date, no action, suit or other proceeding
shall be 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.
8.3 All consents of other parties and all other consents, orders
and permits of Federal, state and local regulatory authorities (including those
of the Commission and of state Blue Sky and securities authorities) deemed
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necessary by the Acquiring Fund or the Fund to permit consummation, in all
material respects, of the transactions contemplated hereby shall have been
obtained, except where failure to obtain any such consent, order or permit would
not involve a risk of a material adverse effect on the assets or properties of
the Acquiring Fund or the Fund, provided that either party hereto may for itself
waive any of such conditions.
8.4 The Registration Statement shall have become effective under
the 1933 Act and no stop orders suspending the effectiveness thereof shall have
been issued and, to the best knowledge of the parties hereto, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 0000 Xxx.
8.5 The relief requested by the Exemptive Application shall have
been granted in form and substance reasonably satisfactory to the counsel for
the Acquiring Fund and the Fund.
8.6 The Fund shall have declared a dividend or dividends which,
together with all previous dividends, shall have the effect of distributing to
the Fund's shareholders all of the Fund's investment company taxable income for
all taxable years or periods ending on or prior to the Closing Date (computed
without regard to any deduction for dividends paid); the excess of its interest
income excludable from gross income under Section 103(a) of the Code over its
disallowed deductions under Sections 265 and 171(a)(2) of the Code, for all
taxable years or periods ending on or prior to the Closing Date; and all of its
net capital gain realized in all taxable years ending on or prior to the Closing
Date (after reduction for any capital loss carry forward).
8.7 The parties shall have received an opinion ("Tax Opinion") of
Xxxxxxxxxxx & Xxxxxxxx LLP ("Counsel") substantially to the effect that, based
on the facts and assumptions stated therein and conditioned on consummation of
the Reorganization in accordance with this Agreement, for Federal income tax
purposes:
(a) The transfer of all or substantially all of the
Assets to the Acquiring Fund in exchange solely for the Acquiring Fund Shares
and the assumption by the Acquiring Fund of the Liabilities, followed by the
Fund's distribution of those shares PRO RATA to the Fund Shareholders
constructively in exchange for their Fund Shares, will qualify as a
"reorganization" within the meaning of section 368(a)(1)(C) of the Code, and
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each of the Fund and the Acquiring Fund will be "a party to a reorganization"
within the meaning of section 368(b) of the Code; (b) the Acquiring Fund will
recognize no gain or loss on its receipt of the Assets in exchange solely for
the Acquiring Fund Shares and the assumption by the Acquiring Fund of the
Liabilities; (c) the Fund will recognize no gain or loss on the transfer of the
Assets to the Acquiring Fund in exchange solely for the Acquiring Fund Shares
and the assumption by the Acquiring Fund of the Liabilities or on the
distribution (whether actual or constructive) of the Acquiring Fund Shares to
Fund Shareholders in exchange for their shares; (d) a Fund Shareholder will
recognize no gain or loss on the actual or constructive exchange of all its Fund
Shares solely for Acquiring Fund Shares pursuant to the Reorganization; (e) the
aggregate tax basis in the Acquiring Fund Shares received by each Fund
Shareholder pursuant to the Reorganization will be the same as the aggregate tax
basis in the Fund Shares such shareholder exchanges for those Acquiring Fund
Shares, and the holding period of the Acquiring Fund Shares to be received by
each Fund Shareholder will include the period during which the Fund Shares
exchanged therefor were held by such shareholder (provided the Fund Shares were
held as capital assets on the Closing Date); and (f) the tax basis of the Assets
acquired by the Acquiring Fund will be the same as the tax basis of such Assets
to the Fund immediately prior to the Reorganization, and the holding period of
the Assets of the Fund in the hands of the Acquiring Fund will include the
period during which those Assets were held by the Fund.
In rendering the Tax Opinion, Counsel may rely as to factual
matters, exclusively and without independent verification, on the
representations and warranties made in this Agreement, which Counsel may treat
as representations and warranties made to it, and in separate letters addressed
to Counsel and the certificates delivered pursuant to paragraphs 6.3 and 7.2.
Notwithstanding the foregoing, the Tax Opinion will state that no
opinion is expressed as to the effect of the Reorganization on the Fund or the
Acquiring Fund or any Fund Shareholders with respect to any Asset as to which
any unrealized gain or loss is required to be recognized for Federal income tax
purposes at the end of a taxable year (or on the termination or transfer
thereof) under a xxxx-to-market system of accounting.
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9. TERMINATION OF AGREEMENT; EXPENSES.
9.1 This Agreement and the transactions contemplated hereby may
be terminated and abandoned by resolution of the Board of the Company or of the
Trust, as the case may be, at any time prior to the Closing Date (and
notwithstanding any vote of the Fund's shareholders) if circumstances should
develop that, in the opinion of either of the parties' Board, make proceeding
with the Reorganization inadvisable.
9.2 If this Agreement is terminated and the transactions
contemplated hereby are abandoned pursuant to the provisions of this Section 9,
this Agreement shall become void and have no effect, without any liability on
the part of any party hereto or the Trustees, Directors, officers or
shareholders of the Trust or of the Company, as the case may be, in respect of
this Agreement, other than as provided in paragraph 9.3.
9.3 The Fund and the Acquiring Fund shall bear the aggregate
expenses of the transactions contemplated hereby in proportion to their
respective net assets as of the Closing Date or, if this Agreement is terminated
or the Reorganization contemplated hereby is abandoned prior to the Closing
Date, as of the date of such termination or abandonment.
10. WAIVER.
At any time prior to the Closing Date, any of the conditions
described in Articles 6, 7 and 8 may be waived by the Board of the Trust or of
the Company if, respectively, in the judgment of either, such waiver will not
have a material adverse effect on the benefits intended under this Agreement to
the shareholders of the Acquiring Fund or of the Fund, as the case may be.
11. MISCELLANEOUS.
11.1 None of the representations and warranties included or
provided for herein shall survive consummation of the transactions contemplated
hereby.
11.2 This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof, and merges and supersedes all prior discussions, agreements and
understandings of every kind and nature between them relating to the subject
matter hereof. Neither party shall be bound by any condition, definition,
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warranty or representation, other than as set forth or provided in this
Agreement or as may be, on or subsequent to the date hereof, set forth in a
writing signed by the party to be bound thereby.
11.3 This Agreement shall be governed and construed in accordance
with the internal laws of the State of New York, without giving effect to
principles of conflict of laws; provided, however, that the due authorization,
execution and delivery of this Agreement by the Acquiring Fund and the Fund
shall be governed and construed, respectively, in accordance with the internal
laws of The Commonwealth of Massachusetts and the State of Maryland, in each
case without giving effect to principles of conflict of laws; provided that, in
the case of any conflict between such laws and the Federal securities laws, the
latter shall govern.
11.4 This Agreement may be executed in counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
11.5 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
11.6 (a) References herein to the "MPAM Funds Trust" or its
Trustees refer, respectively, to the Trust and its Trustees, not individually or
personally, but as acting from time to time under the Declaration of Trust, a
copy of which is on file at the office of the Secretary of the Commonwealth of
Massachusetts and at the principal office of the Trust. The obligations of the
Trust entered into in the name or on behalf of the Acquiring Fund, its
representatives or agents, are made not individually, but in such capacities,
and are not binding upon any of the other series of the Trust, or on the
shareholders or representatives of the Acquiring Fund personally, but bind only
the Acquiring Fund's property; and all persons dealing with the Acquiring Fund
must look solely to the Acquiring Fund's property for the enforcement of any
claims against the Acquiring Fund.
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(b) The obligations of the Company entered into in the name or on
behalf of the Fund, its representatives or agents, are made not individually,
but in such capacities, and are not binding upon any of the other series of the
Company, or on the shareholders or representatives of the Fund personally, but
bind only the Fund's property; and all persons dealing with the Fund must look
solely to the Fund's property for the enforcement of any claims against the
Fund.
11.7 Any references in this Agreement to actions taken,
deliveries by or to, representations and warranties made by or to, or
obligations of, the Fund shall be deemed references to actions taken, deliveries
by or to, representations and warranties made by or to, or obligations of, the
Company on behalf of the Fund.
11.8 Any references in this Agreement to actions taken,
deliveries by or to, representations and warranties made by or to, or
obligations of, the Acquiring Fund shall be deemed references to actions taken,
deliveries by or to, representations and warranties made by or to, or
obligations of, the Trust on behalf of the Acquiring Fund.
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IN WITNESS WHEREOF, the Trust and the Company have caused this
Agreement and Plan of Reorganization to be executed and attested on its behalf
by its duly authorized representatives as of the date first above written.
THE DREYFUS / LAUREL FUNDS, INC.,
on behalf of Dreyfus Disciplined Smallcap Stock Fund
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx,
President
ATTEST: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx,
Secretary
MPAM FUNDS TRUST, on behalf of MPAM Small Cap Stock Fund
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx,
President
ATTEST: /s/ Xxxx Xxxxxxxxxx
-----------------------
Xxxx Xxxxxxxxxx,
Secretary
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