Exhibit (4)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "AGREEMENT") is made as of
June 17, 2003, by and between CDC Nvest Balanced Fund (the "ACQUIRED FUND"), a
series of CDC Nvest Funds Trust I, a Massachusetts business trust ("TRUST I"),
and CDC Nvest Growth and Income Fund (the "ACQUIRING FUND"), a series of CDC
Nvest Funds Trust II, a Massachusetts business trust ("TRUST II").
PLAN OF REORGANIZATION
(a) The Acquired Fund shall sell, assign, convey, transfer and deliver to
the Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets. In consideration therefor, the Acquiring Fund shall, on
the Exchange Date, assume all of the liabilities of the Acquired Fund existing
at the Valuation Time (as defined in Section 3(c)) and deliver to the Acquired
Fund a number of full and fractional Class A, B, C and Y shares of beneficial
interest of the Acquiring Fund (the "MERGER SHARES") having an aggregate net
asset value equal to the value of the assets of the Acquired Fund transferred to
the Acquiring Fund on such date less the value of the liabilities of the
Acquired Fund assumed by the Acquiring Fund on that date. It is intended that
the reorganization described in this Agreement shall be a reorganization within
the meaning of Section 368 of the Internal Revenue Code of 1986, as amended and
in effect from time to time (the "CODE").
(b) Upon consummation of the transactions described in paragraph (a) of
this Plan of Reorganization, the Acquired Fund shall distribute the Merger
Shares in complete liquidation to its shareholders of record as of the Exchange
Date, each shareholder being entitled to receive that proportion of Merger
Shares of each class (consisting in the case of each shareholder of Merger
Shares of the same designated class (Class A, B, C or Y) as the shares of the
Acquired Fund which that shareholder holds) which the number of shares of that
class of the Acquired Fund held by such shareholder bears to the total number of
shares of that class of the Acquired Fund outstanding on such date. Certificates
representing the Merger Shares will not be issued. All issued and outstanding
shares of the Acquired Fund will simultaneously be cancelled on the books of the
Acquired Fund.
(c) As soon as practicable following the liquidation of the Acquired Fund
as aforesaid, the Acquired Fund shall be dissolved pursuant to the provisions of
the Agreement and Declaration of Trust of Trust I, as amended, and applicable
law, and its legal existence terminated. Any reporting responsibility of the
Acquired Fund is and shall remain the responsibility of the Acquired Fund up to
and including the Exchange Date and, if applicable, such later date on which the
Acquired Fund is dissolved.
AGREEMENT
Trust II, on behalf of the Acquiring Fund, and Trust I, on behalf of the
Acquired Fund, agree as follows:
1. Representations, Warranties and Agreements of the Acquiring Fund. Trust
II, and not the individual Trustees and officers thereof, on behalf of the
Acquiring Fund, represents and warrants to and agrees with the Acquired Fund
that:
a. The Acquiring Fund is a series of shares of Trust II, a
Massachusetts business trust duly established and validly existing under
the laws of the Commonwealth of Massachusetts, and has power to own all of
its properties and assets and to carry out its obligations under this
Agreement. Trust II is qualified as a foreign association in every
jurisdiction where required, except to the extent that failure to so
qualify would not have a material adverse effect on Trust II. Each of Trust
II and the Acquiring Fund has all necessary federal, state and local
authorizations to carry on its business as now being conducted and to carry
out this Agreement.
b. Trust II is registered under the Investment Company Act of 1940, as
amended (the "1940 ACT"), as an open-end management investment company, and
such registration has not been revoked or rescinded and is in full force
and effect.
c. A statement of assets and liabilities, statements of operations,
statements of changes in net assets and a schedule of investments
(indicating their market values) of the Acquiring Fund as of and for the
period ended December 31, 2002, have been furnished to the Acquired Fund
prior to the Exchange Date. Such statement of assets and liabilities and
schedule fairly present the financial position of the Acquiring Fund as of
such date and said statements of operations and changes in net assets
fairly reflect the results of its operations and changes in net assets for
the periods covered thereby in conformity with generally accepted
accounting principles.
d. Since December 31, 2002, there has not been any material adverse
change in the Acquiring Fund's financial condition, assets, liabilities or
business (other than changes occurring in the ordinary course of business),
or any incurrence by the Acquiring Fund of indebtedness. For the purposes
of this subparagraph (d), distributions of net investment income and net
realized capital gains, changes in portfolio securities, changes in the
market value of portfolio securities or net redemptions shall be deemed to
be in the ordinary course of business.
e. Trust II is not in violation in any material respect of any
provisions of its Agreement and Declaration of Trust or By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to
which Trust II is a party or by which the Acquiring Fund is bound, and the
execution, delivery and performance of this Agreement will not result in
any such violation.
f. The prospectuses and statement of additional information of the
Acquiring Fund, each dated May 1, 2002, and each as from time to time
amended or supplemented (collectively, the "ACQUIRING FUND PROSPECTUS"),
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previously furnished to the Acquired Fund, (i) conform in all material
respects to the applicable requirements of the Securities Act of 1933, as
amended (the "1933 ACT"), and (ii) did not as of such date and do not
contain, with respect to Trust II or the Acquiring Fund, any untrue
statements of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
g. There are no material legal, administrative or other proceedings
pending or, to the knowledge of Trust II or the Acquiring Fund, threatened
against Trust II or the Acquiring Fund, which assert liability on the part
of Trust II or the Acquiring Fund. Neither Trust II nor the Acquiring Fund
knows of any facts which might form the basis for the institution of such
proceedings and is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body which
materially and adversely affects its business or its ability to consummate
the transactions herein contemplated.
h. The Acquiring Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that will be shown as belonging
to it on its statement of assets and liabilities as of December 31, 2002,
and those incurred in the ordinary course of business as an investment
company since such date. Prior to the Exchange Date, the Acquiring Fund
will quantify and reflect on its balance sheet all of its material known
liabilities and will advise the Acquired Fund of all material liabilities,
contingent or otherwise, incurred by it subsequent to December 31, 2002,
whether or not incurred in the ordinary course of business.
i. As of the Exchange Date, the Acquiring Fund will have filed all
federal and other tax returns and reports which, to the knowledge of the
officers of Trust II, are required to be filed by the Acquiring Fund and
has paid or will pay all federal and other taxes shown to be due on said
returns or on any assessments received by the Acquiring Fund. All tax
liabilities of the Acquiring Fund have been adequately provided for on its
books, and no tax deficiency or liability of the Acquiring Fund has been
asserted, and no question with respect thereto has been raised or is under
audit, by the Internal Revenue Service or by any state, local or other tax
authority for taxes in excess of those already paid.
j. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Acquiring
Fund of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 ACT"), the 1940 Act and state securities or blue sky
laws (which term as used herein shall include the laws of the District of
Columbia and of Puerto Rico).
k. There are no material contracts outstanding to which the Acquiring
Fund is a party, other than as are or will be disclosed in the Registration
Statement or the Acquired Fund Proxy Statement (each as defined in Section
l(r) herein) or the Acquiring Fund Prospectus.
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l. To the best of its knowledge, all of the issued and outstanding
shares of beneficial interest of the Acquiring Fund have been offered for
sale and sold in conformity with all applicable federal and state
securities laws (including any applicable exemptions therefrom), or the
Acquiring Fund has taken any action necessary to remedy any prior failure
to have offered for sale and sold such shares in conformity with such laws.
m. The Acquiring Fund qualifies and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company"
under Subchapter M of the Code.
n. The issuance of the Merger Shares pursuant to this Agreement will
be in compliance with all applicable federal and state securities laws.
o. The Merger Shares to be issued to the Acquired Fund have been duly
authorized and, when issued and delivered pursuant to this Agreement, will
be legally and validly issued Class A, B, C and Y shares of beneficial
interest in the Acquiring Fund and will be fully paid and, except as set
forth in the Registration Statement, nonassessable by the Acquiring Fund,
and no shareholder of the Acquiring Fund will have any preemptive right of
subscription or purchase in respect thereof.
p. All issued and outstanding shares of the Acquiring Fund are, and at
the Exchange Date will be, duly and validly issued and outstanding, fully
paid and, except as set forth in the Registration Statement, nonassessable
by the Acquiring Fund. The Acquiring Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase any of the
Acquiring Fund shares, nor is there outstanding any security convertible
into any of the Acquiring Fund shares, except that Class B shares of the
Acquiring Fund are convertible into Class A shares of the Acquiring Fund in
the manner and on the terms described in the Acquiring Fund Prospectus and
the Registration Statement.
q. The Acquiring Fund's investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the Acquiring
Fund Prospectus and the Registration Statement.
r. The registration statement on Form N-14 (the "REGISTRATION
STATEMENT") filed with the Securities and Exchange Commission (the
"COMMISSION") by Trust II on behalf of the Acquiring Fund and relating to
the Merger Shares issuable hereunder, and the proxy statement of the
Acquired Fund relating to the meeting of the Acquired Fund's shareholders
referred to in Section 7 herein (together with the documents incorporated
therein by reference, the "ACQUIRED FUND PROXY STATEMENT"), on the
effective date of the Registration Statement (i) complied in all material
respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act
and the rules and regulations thereunder and (ii) did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and at the time of the shareholders' meeting referred to in
Section 7 and on the Exchange Date, the prospectus which is contained in
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the Registration Statement, as amended or supplemented by any amendments or
supplements filed with the Commission by Trust II, and the Acquired Fund
Proxy Statement did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that none of the representations and warranties in this
subparagraph (r) shall apply to statements in or omissions from the
Registration Statement or the Acquired Fund Proxy Statement made in
reliance upon and in conformity with information furnished by the Acquired
Fund for use in the Registration Statement or the Acquired Fund Proxy
Statement.
2. Representations, Warranties and Agreements of the Acquired Fund. Trust
I, and not the individual Trustees and officers thereof, on behalf of the
Acquired Fund, represents and warrants to and agrees with the Acquiring Fund
that:
a. The Acquired Fund is a series of shares of Trust I, a Massachusetts
business trust duly established and validly existing under the laws of the
Commonwealth of Massachusetts, and has power to own all of its properties
and assets and to carry out this Agreement. Trust I is qualified as a
foreign association in every jurisdiction where required, except to the
extent that failure to so qualify would not have a material adverse effect
on Trust I. Each of Trust I and the Acquired Fund has all necessary
federal, state and local authorizations to own all of its properties and
assets and to carry on its business as now being conducted and to carry out
this Agreement.
b. Trust I is registered under the 1940 Act as an open-end management
investment company, and such registration has not been revoked or rescinded
and is in full force and effect.
c. A statement of assets and liabilities, statements of operations,
statements of changes in net assets and a schedule of investments
(indicating their market values) of the Acquired Fund as of and for the
period ended December 31, 2002, has been furnished to the Acquiring Fund
prior to the Exchange Date. Such statement of assets and liabilities and
schedule fairly present the financial position of the Acquired Fund as of
such date and said statements of operations and changes in net assets
fairly reflect the results of its operations and changes in net assets for
the periods covered thereby in conformity with generally accepted
accounting principles.
d. Since December 31, 2002, there has not been any material adverse
change in the Acquired Fund's financial condition, assets, liabilities or
business (other than changes occurring in the ordinary course of business),
or any incurrence by the Acquired Fund of indebtedness, except as disclosed
in writing to the Acquiring Fund. For the purposes of this subsection (d)
and of Section 9(a) of this Agreement, distributions of net investment
income and net realized capital gains, changes in portfolio securities,
changes in the market value of portfolio securities or net redemptions
shall be deemed to be in the ordinary course of business.
e. Trust I is not in violation in any material respect of any
provision of its Agreement and Declaration of Trust or By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to
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which Trust I is a party or by which the Acquired Fund is bound, and the
execution, delivery and performance of this Agreement will not result in
any such violation.
f. The prospectuses and the statement of additional information of the
Acquired Fund, each dated May 1, 2002, and each as from time to time
amended or supplemented (the "ACQUIRED FUND PROSPECTUS"), previously
furnished to the Acquiring Fund (i) conform in all material respects to the
applicable requirements of the 1933 Act and (ii) did not contain as of such
date and do not contain, with respect to Trust I and the Acquired Fund, any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
g. The Acquired Fund's investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the Acquired
Fund Prospectus.
h. At the Exchange Date, Trust I, on behalf of the Acquired Fund, will
have good and marketable title to its assets to be transferred to the
Acquiring Fund pursuant to this Agreement and will have full right, power
and authority to sell, assign, transfer and deliver the Investments (as
defined below) and any other assets and liabilities of the Acquired Fund to
be transferred to the Acquiring Fund pursuant to this Agreement. At the
Exchange Date, subject only to the delivery of the Investments and any such
other assets and liabilities and payment therefor as contemplated by this
Agreement, the Acquiring Fund will acquire good and marketable title
thereto and will acquire the Investments and any such other assets and
liabilities subject to no encumbrances, liens or security interests
whatsoever and without any restrictions upon the transfer thereof, except
as previously disclosed in writing to the Acquiring Fund.
i. There are no material legal, administrative or other proceedings
pending or, to the knowledge of Trust I or the Acquired Fund, threatened
against Trust I or the Acquired Fund, which assert liability on the part of
Trust I or the Acquired Fund. The Acquired Fund knows of no facts which
might form the basis for the institution of such proceedings and is not a
party to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions herein contemplated.
j. There are no material contracts outstanding to which the Acquired
Fund is a party, other than as are or will be disclosed in Acquired Fund
Prospectus, the registration statement on Form N-1A of the Acquired Fund
(the "ACQUIRED FUND REGISTRATION STATEMENT") or the Acquired Fund Proxy
Statement.
k. The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that are shown on the Acquired
Fund's statement of assets and liabilities as of December 31, 2002,
referred to above and those incurred in the ordinary course of its business
as an investment company since such date. Prior to the Exchange Date, the
Acquired Fund will quantify and reflect on its balance sheet all of its
material known liabilities and will advise the Acquiring Fund of all
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material liabilities, contingent or otherwise, incurred by it subsequent to
December 31, 2002, whether or not incurred in the ordinary course of
business.
l. As of the Exchange Date, the Acquired Fund will have filed all
required federal and other tax returns and reports which, to the knowledge
of Trust I's officers, are required to have been filed by the Acquired Fund
by such date and has paid or will pay all federal and other taxes shown to
be due on said returns or on any assessments received by the Acquired Fund.
All tax liabilities of the Acquired Fund have been adequately provided for
on its books, and no tax deficiency or liability of the Acquired Fund has
been asserted, and no question with respect thereto has been raised or is
under audit, by the Internal Revenue Service or by any state, local or
other tax authority for taxes in excess of those already paid.
m. Trust I has and, at the Exchange Date, Trust I, on behalf of the
Acquired Fund, will have, full right, power and authority to sell, assign,
transfer and deliver the Investments (as defined below) and any other
assets and liabilities of the Acquired Fund to be transferred to the
Acquiring Fund pursuant to this Agreement. At the Exchange Date, subject
only to the delivery of the Investments and any such other assets and
liabilities as contemplated by this Agreement, the Acquiring Fund will
acquire the Investments and any such other assets and liabilities subject
to no encumbrances, liens or security interests whatsoever and without any
restrictions upon the transfer thereof. As used in this Agreement, the term
"INVESTMENTS" shall mean the Acquired Fund's investments shown on the
schedule of its investments as of December 31, 2002, referred to in Section
2(c) hereof, as modified by such changes in the portfolio as the Acquired
Fund shall make, and changes resulting from stock dividends, stock
split-ups, mergers and similar corporate actions through the Exchange Date.
n. No registration under the 1933 Act of any of the Investments would
be required if they were, as of the time of such transfer, the subject of a
public distribution by either of the Acquiring Fund or the Acquired Fund,
except as previously disclosed to the Acquiring Fund by the Acquired Fund.
o. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Acquired
Fund of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, 1934 Act, the 1940 Act or state securities
or blue sky laws.
p. The Acquired Fund qualifies and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company"
under Subchapter M of the Code.
q. At the Exchange Date, the Acquired Fund will have sold such of its
assets, if any, as are necessary to assure that, after giving effect to the
acquisition of the assets of the Acquired Fund pursuant to this Agreement,
the Acquiring Fund will remain a "diversified company" within the meaning
of Section 5(b)(1) of the 1940 Act and in compliance with such other
mandatory investment restrictions as are set forth in the Acquired Fund
Prospectus, as amended through the Exchange Date.
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r. To the best of its knowledge, all of the issued and outstanding
shares of beneficial interest of the Acquired Fund have been offered for
sale and sold in conformity with all applicable federal and state
securities laws (including any applicable exemptions therefrom), or the
Acquired Fund has taken any action necessary to remedy any prior failure to
have offered for sale and sold such shares in conformity with such laws.
s. All issued and outstanding shares of the Acquired Fund are, and at
the Exchange Date will be, duly and validly issued and outstanding, fully
paid and, except as set forth in the Acquired Fund Registration Statement,
non-assessable by the Acquired Fund. The Acquired Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any of the Acquired Fund shares, nor is there outstanding any
security convertible into any of the Acquired Fund shares, except that
Class B shares of the Acquired Fund are convertible into Class A shares of
the Acquired Fund in the manner and on the terms described in the Acquired
Fund Prospectus.
t. The Acquired Fund Proxy Statement, on the effective date of the
Registration Statement (i) complied in all material respects with the
provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at
the time of the shareholders' meeting referred to in Section 7 and on the
Exchange Date, the Acquired Fund Proxy Statement did not and will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that none of the representations
and warranties in this subsection shall apply to statements in or omissions
from the Acquired Fund Proxy Statement made in reliance upon and in
conformity with information furnished by the Acquiring Fund for use in the
Acquired Fund Proxy Statement.
u. Trust I has no material contracts or other commitments (other than
this Agreement and such other contracts as may be entered into in the
ordinary course of its business) which if terminated may result in material
liability to the Acquired Fund (or to the Acquiring Fund as a result of the
transactions contemplated by this Agreement) or under which (whether or not
terminated) any material payments for periods subsequent to the Exchange
Date will be due from the Acquired Fund (or from the Acquiring Fund as a
result of the transactions contemplated by this Agreement).
v. The information provided by the Acquired Fund for use in the
Registration Statement and Proxy Statement was accurate and complete in all
material respects when supplied and as of the effective date of the
Registration Statement was accurate and complete in all material respects
and complied with federal securities and other laws and regulations
applicable thereto in all material respects.
3. Reorganization.
a. Subject to the requisite approval of the shareholders of the
Acquired Fund and to the other terms and conditions contained herein
(including the Acquired Fund's obligation (if any) to distribute to its
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shareholders all of its investment company taxable income and net capital
gain as described in Section 8(j) hereof), the Acquired Fund agrees to
sell, assign, convey, transfer and deliver to the Acquiring Fund, and the
Acquiring Fund agrees to acquire from the Acquired Fund, on the Exchange
Date all of the Investments and all of the cash and other properties and
assets of the Acquired Fund, whether accrued or contingent (including cash
received by the Acquired Fund upon the liquidation of the Acquired Fund of
any Acquired Fund investments designated by the Acquiring Fund as being
unsuitable for it to acquire pursuant to the investment restrictions of the
Acquiring Fund set forth in the Acquiring Fund Prospectus and the
Registration Statement), in exchange for that number of shares of
beneficial interest of the Acquiring Fund provided for in Section 4 and the
assumption by the Acquiring Fund of all of the liabilities of the Acquired
Fund, whether accrued or contingent, existing at the Valuation Time except
for the Acquired Fund's liabilities, if any, arising in connection with
this Agreement. The Acquired Fund will, as soon as practicable after the
Exchange Date, distribute in complete liquidation all of the Merger Shares
received by it to the shareholders of the Acquired Fund in exchange for
their shares of the Acquired Fund.
b. The Acquired Fund will pay or cause to be paid to the Acquiring
Fund any interest, cash or such dividends, rights and other payments
received by it on or after the Exchange Date with respect to the
Investments and other properties and assets of the Acquired Fund, whether
accrued or contingent, received by it on or after the Exchange Date. Any
such distribution shall be deemed included in the assets transferred to the
Acquiring Fund at the Exchange Date and shall not be separately valued
unless the securities in respect of which such distribution is made shall
have gone "ex" such distribution prior to the Valuation Time, in which case
any such distribution which remains unpaid at the Exchange Date shall be
included in the determination of the value of the assets of the Acquired
Fund acquired by the Acquiring Fund.
c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange
Date or such other time as may be mutually agreed upon in writing by the
parties hereto (the "VALUATION TIME").
4. Exchange Date; Valuation Time. On the Exchange Date, the Acquiring Fund
will deliver to the Acquired Fund a number of full and fractional Merger Shares
of each Class A, B, C and Y having an aggregate net asset value equal, in the
case of each such Class, to the value of the assets of the Acquired Fund
attributable to the same class of shares of the Acquired Fund on such date less
the value of the liabilities attributable to the same class of shares of the
Acquired Fund assumed by the Acquiring Fund on that date, determined as
hereinafter provided in this Section 4.
a. The net asset value of the Merger Shares to be delivered to the
Acquired Fund, the value of the assets attributable to the shares of the
Acquired Fund, and the value of the liabilities of the Acquired Fund to be
assumed by the Acquiring Fund, shall in each case be determined as of the
Valuation Time.
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b. The net asset value of the Merger Shares shall be computed in the
manner set forth in the Acquiring Fund Prospectus. The value of the assets
and liabilities of the Acquired Fund shall be determined by the Acquiring
Fund, in cooperation with the Acquired Fund, pursuant to procedures which
the Acquiring Fund would use in determining the fair market value of the
Acquiring Fund's assets and liabilities.
c. No adjustment shall be made in the net asset value of either the
Acquired Fund or the Acquiring Fund to take into account differences in
realized and unrealized gains and losses.
d. The Acquiring Fund shall issue the Merger Shares to the Acquired
Fund. The Acquired Fund shall promptly distribute the Merger Shares to the
shareholders of the Acquired Fund by establishing open accounts for each
Acquired Fund shareholder on the transfer records of the Acquiring Fund.
Certificates representing Merger Shares will not be issued to Acquired Fund
shareholders.
e. The Acquiring Fund shall assume all liabilities of the Acquired
Fund, whether accrued or contingent, in connection with the acquisition of
assets and subsequent liquidation and dissolution of the Acquired Fund or
otherwise, except for the Acquired Fund's liabilities, if any, arising
pursuant to this Agreement.
5. Expenses, Fees, etc.
a. Except as otherwise provided in this Section 5, CDC IXIS Asset
Management Advisers, L.P., by countersigning this Agreement, agrees that it
will bear any and all costs and expenses of the transaction incurred by the
Acquiring Fund and the Acquired Fund; PROVIDED, HOWEVER, that the Acquiring
Fund and the Acquired Fund will each pay any brokerage commissions, dealer
xxxx-ups and similar expenses ("PORTFOLIO EXPENSES") that it may incur in
connection with the purchases or sale of portfolio securities; AND PROVIDED
FURTHER THAT, the Acquiring Fund will pay all governmental fees required in
connection with the registration or qualification of the Merger Shares
under applicable state and federal laws.
b. In the event the transactions contemplated by this Agreement are
not consummated, then CDC IXIS Asset Management Advisers, L.P. agrees that
it shall bear all of the costs and expenses (other than Portfolio Expenses)
incurred by both the Acquiring Fund and the Acquired Fund in connection
with such transactions.
c. Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not consummated,
neither the Acquiring Fund nor the Acquired Fund shall be liable to the
other for any damages resulting therefrom, including, without limitation,
consequential damages, except as specifically set forth above.
d. Notwithstanding any of the foregoing, costs and expenses will in
any event be paid by the party directly incurring them if and to the extent
that the payment by another party of such costs and expenses would result
in the disqualification of such party as a "regulated investment company"
within the meaning of Subchapter M of the Code.
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6. Exchange Date. Delivery of the assets of the Acquired Fund to be
transferred, assumption of the liabilities of the Acquired Fund to be assumed,
and delivery of the Merger Shares to be issued shall be made at the offices of
CDC IXIS Asset Management Services, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
as of the close of business on June 27, 2003, or at such other time and date
agreed to by the Acquiring Fund and the Acquired Fund, the date and time upon
which such delivery is to take place being referred to herein as the "EXCHANGE
DATE."
7. Meeting of Shareholders; Dissolution.
a. Trust I, on behalf of the Acquired Fund, shall call a meeting of
the Acquired Fund's shareholders to take place after the effective date of
the Registration Statement for the purpose of considering the approval of
this Agreement.
b. The Acquired Fund agrees that the liquidation and dissolution of
the Acquired Fund will be effected in the manner provided in the Agreement
and Declaration of Trust of Trust I in accordance with applicable law and
that, after the Exchange Date, the Acquired Fund shall not conduct any
business except in connection with its liquidation and dissolution.
c. The Acquiring Fund shall, after the preparation and delivery to the
Acquiring Fund by the Acquired Fund of a preliminary version of the
Acquired Fund Proxy Statement information, which shall be satisfactory to
the Acquiring Fund and to Ropes & Xxxx LLP for inclusion in the
Registration Statement, file the Registration Statement with the
Commission. Each of the Acquired Fund and the Acquiring Fund shall
cooperate with the other, and each will furnish to the other the
information relating to itself required by the 1933 Act, the 1934 Act and
the 1940 Act and the rules and regulations thereunder to be set forth in
the Registration Statement.
8. Conditions to the Acquiring Fund's Obligations. The obligations of the
Acquiring Fund hereunder shall be subject to the following conditions:
a. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement of the Acquired Fund's assets and liabilities, with values
determined as provided in Section 4 of this Agreement, together with a list
of Investments with their respective tax costs, all as of the Valuation
Time, certified on the Acquired Fund's behalf by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of Trust I, and a
certificate of both such officers, dated the Exchange Date, that there has
been no material adverse change in the financial position of the Acquired
Fund since December 31, 2002, other than changes in the Investments and
other assets and properties since that date or changes in the market value
of the Investments and other assets of the Acquired Fund, or changes due to
dividends paid, and a certificate of both such officers representing and
warranting that there are no known liabilities, contingent or otherwise, of
the Acquired Fund required to be reflected on a balance sheet (including
notes thereto) in accordance with generally accepted accounting principles
as of December 31, 2002 and in the Acquired Fund's statement of assets and
liabilities as of the Valuation Time.
11
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of Trust I certifying
that as of the Exchange Date all representations and warranties of the
Acquired Fund made in this Agreement are true and correct in all material
respects as if made at and as of such date and the Acquired Fund has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to such date.
c. That the Acquired Fund shall have delivered to the Acquiring Fund a
letter from the independent accountants of Trust I, dated the Exchange
Date, stating that such firm has employed certain procedures whereby it has
obtained schedules of the tax provisions and qualifying tests for regulated
investment companies and that, in the course of such procedures, nothing
came to their attention which caused them to believe that the Acquired Fund
(i) would not qualify as a regulated investment company for federal, state,
local or other income tax purposes or (ii) would owe any federal, state or
local income tax or excise tax, in each case for both the taxable year
ended December 31, 2002, and for any taxable year or period beginning on
January 1, 2003 and ending on or prior to the Exchange Date (the latter
period being based on unaudited data).
d. That there shall not be any material litigation pending with
respect to the matters contemplated by this Agreement.
e. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP, counsel to the Acquired Fund, dated the Exchange Date, to the
effect that (i) Trust I is a Massachusetts business trust duly formed and
validly existing under the laws of the Commonwealth of Massachusetts, and
the Acquired Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940 Act and the Agreement
and Declaration of Trust and By-Laws of Trust I; (ii) this Agreement has
been duly authorized, executed and delivered by Trust I on behalf of the
Acquired Fund and, assuming that the Registration Statement, the Acquired
Fund Prospectus and the Acquired Fund Proxy Statement comply with the 1933
Act, the 1934 Act and the 1940 Act and assuming due authorization,
execution and delivery of this Agreement by Trust II on behalf of the
Acquiring Fund, is a valid and binding obligation of Trust I and the
Acquired Fund enforceable against Trust I and the Acquired Fund in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and other equitable principles; (iii) Trust
I, on behalf of the Acquired Fund, has power to sell, assign, convey,
transfer and deliver the assets contemplated hereby and, upon consummation
of the transactions contemplated hereby in accordance with the terms of
this Agreement, the Acquired Fund will have duly sold, assigned, conveyed,
transferred and delivered such assets to the Acquiring Fund; (iv) the
execution and delivery of this Agreement did not, and the consummation of
the transactions contemplated hereby will not, violate the Agreement and
Declaration of Trust or By-Laws of Trust I, or any provision of any
agreement known to such counsel to which Trust I or the Acquired Fund is a
party or by which it is bound or, to the knowledge of such counsel, result
in the acceleration of any penalty under any agreement, judgment or decree
to which Trust I or the Acquired Fund is a party or by which either of them
is bound, it being understood that with respect to investment restrictions
contained in the Agreement and Declaration of Trust, By-Laws or
then-current prospectuses or statement of additional information of Trust
12
I, such counsel may rely upon a certificate of an officer of Trust I; (v)
to the knowledge of such counsel, no consent, approval, authorization or
order of any court or governmental authority is required for the
consummation by Trust I on behalf of the Acquired Fund of the transactions
contemplated hereby, except such as have been obtained under the 1933 Act,
the 1934 Act and the 1940 Act and such as may be required under state
securities or blue sky laws; (vi) Trust I is registered with the Commission
as an investment company under the 1940 Act; and (vii) to the knowledge of
such counsel, no litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or
threatened as to Trust I or the Acquired Fund or any of their properties or
assets that challenges or seeks to prohibit, restrain or enjoin the
transactions contemplated by this Agreement. In addition, such counsel
shall also state that they have participated in conferences with officers
and other representatives of the Acquired Fund at which the contents of the
Acquired Fund Proxy Statement and related matters were discussed, and,
although they are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Acquired Fund Proxy Statement, on the basis of the foregoing (relying as to
materiality upon the opinions of officers and other representatives of the
Acquired Fund), no facts have come to their attention that lead them to
believe that the portions of the Acquired Fund Proxy Statement relevant to
the transfer of assets contemplated by this Agreement, as of its date, as
of the date of the Acquired Fund shareholders' meeting or as of the
Exchange Date, contained an untrue statement of a material fact regarding
the Acquired Fund or omitted to state a material fact required to be stated
therein or necessary to make the statements therein regarding the Acquired
Fund, in light of the circumstances under which they were made, not
misleading. Such opinion may state that such counsel does not express any
opinion or belief as to the financial statements or other financial data,
or as to the information relating to the Acquiring Fund, contained in the
Acquired Fund Proxy Statement or the Registration Statement, and that such
opinion is solely for the benefit of the Acquiring Fund, its Trustees and
its officers.
f. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP, dated the Exchange Date (which opinion would be based upon
certain factual representations and subject to certain qualifications), to
the effect that, on the basis of the existing provisions of the Code,
current administrative rules and court decisions, while not entirely free
from doubt, for federal income tax purposes: (i) the transactions
contemplated by this Agreement will constitute a reorganization within the
meaning of Section 368(a) of the Code, and the Acquiring Fund and the
Acquired Fund will each be "a party to the reorganization" within the
meaning of Section 368(b) of the Code; (ii) under Section 1032 of the Code,
no gain or loss will be recognized by the Acquiring Fund upon receipt of
the Investments transferred to the Acquiring Fund pursuant to this
Agreement in exchange for the Merger Shares and the assumption by the
Acquiring Fund of the liabilities of the Acquired Fund as contemplated in
Section 3 hereof; (iii) under Section 362(b) of the Code, the basis to the
Acquiring Fund of the Investments will be the same as the basis of the
Investments in the hands of the Acquired Fund immediately prior to such
13
exchange; (iv) under Section 1223(2) of the Code, the Acquiring Fund's
holding periods with respect to the Investments will include the respective
periods for which the Investments were held by the Acquired Fund; and (v)
the Acquiring Fund will succeed to and take into account the items of the
Acquired Fund described in Section 381(c) of the Code, subject to the
conditions and limitations specified in Sections 381, 382, 383 and 384 of
the Code and the regulations thereunder.
g. That the assets of the Acquired Fund to be acquired by the
Acquiring Fund will include no assets which the Acquiring Fund, by reason
of charter limitations or of investment restrictions disclosed in the
Acquiring Fund Prospectus or the Registration Statement as in effect on the
Exchange Date, may not properly acquire.
h. That Trust I shall have received from the Commission and any
relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act, the
1940 Act and any applicable state securities or blue sky laws in connection
with the transactions contemplated hereby, and that all such orders shall
be in full force and effect.
i. That all actions taken by Trust I on behalf of the Acquired Fund in
connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance to
the Acquiring Fund and Ropes & Xxxx LLP.
j. That, prior to the Exchange Date, the Acquired Fund shall have
declared a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to the shareholders of the
Acquired Fund (i) all of the excess of (x) the Acquired Fund's investment
income excludable from gross income under Section 103 of the Code over (y)
the Acquired Fund's deductions disallowed under Sections 265 and 171 of the
Code, (ii) all of the Acquired Fund's investment company taxable income (as
defined in Section 852 of the Code), computed in each case without regard
to any deduction for dividends paid, and (iii) all of the Acquired Fund's
net capital gain realized (after reduction for any capital loss carryover),
in each case for both the taxable year ended on December 31, 2002, and for
any taxable year or period beginning on January 1, 2003 and ending on or
prior to the Exchange Date.
k. That the Acquired Fund shall have furnished to the Acquiring Fund a
certificate, signed by the President (or any Vice President) and the
Treasurer (or any Assistant Treasurer) of Trust I, as to the tax cost to
the Acquired Fund of the securities delivered to the Acquiring Fund
pursuant to this Agreement, together with any such other evidence as to
such tax cost as the Acquiring Fund may reasonably request.
l. That the Acquired Fund's custodian shall have delivered to the
Acquiring Fund a certificate identifying all of the assets of the Acquired
Fund held or maintained by such custodian as of the Valuation Time.
m. That the Acquired Fund's transfer agent shall have provided to the
Acquiring Fund (i) the originals or true copies of all of the records of
the Acquired Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares of the
Acquired Fund outstanding as of the Valuation Time, and (iii) the name and
14
address of each holder of record of any shares and the number of shares
held of record by each such shareholder.
n. That all of the issued and outstanding shares of beneficial
interest of the Acquired Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue sky laws (including
any applicable exemptions therefrom) and, to the extent that any audit of
the records of the Acquired Fund or its transfer agent by the Acquiring
Fund or its agents shall have revealed otherwise, either (i) the Acquired
Fund shall have taken all actions that in the opinion of the Acquiring Fund
or Ropes & Xxxx LLP are necessary to remedy any prior failure on the part
of the Acquired Fund to have offered for sale and sold such shares in
conformity with such laws or (ii) the Acquired Fund shall have furnished
(or caused to be furnished) surety, or deposited (or caused to be
deposited) assets in escrow, for the benefit of the Acquiring Fund in
amounts sufficient and upon terms satisfactory, in the opinion of the
Acquiring Fund or Ropes & Xxxx LLP, to indemnify the Acquiring Fund against
any expense, loss, claim, damage or liability whatsoever that may be
asserted or threatened by reason of such failure on the part of the
Acquired Fund to have offered and sold such shares in conformity with such
laws.
o. That the Acquiring Fund shall have received from the independent
accountants of Trust I a letter addressed to the Acquiring Fund, dated as
of the Exchange Date, satisfactory in form and substance to the Acquiring
Fund with respect to the performance of limited procedures agreed upon by
the Acquiring Fund and described in such letter (but not an examination in
accordance with generally accepted auditing standards), as of the Valuation
Time.
p. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired
Fund entitled to vote.
q. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP with respect to the matters specified in Section 9(f) of this
Agreement, and such other matters as the Acquiring Fund may reasonably deem
necessary or desirable.
r. That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of Trust II or the Acquiring Fund,
threatened by the Commission.
9. Conditions to the Acquired Fund's Obligations. The obligations of the
Acquired Fund hereunder shall be subject to the following conditions:
a. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement of the Acquiring Fund's net assets, together with a list of
portfolio holdings with values determined as provided in Section 4, all as
of the Valuation Time, certified on the Acquiring Fund's behalf by the
President (or any Vice President) and Treasurer (or any Assistant
Treasurer) of Trust II, and a certificate of both such officers, dated the
Exchange Date, to the effect that as of the Valuation Time and as of the
Exchange Date there has been no material adverse change in the financial
15
position of the Acquiring Fund since December 31, 2002, other than changes
occurring in the ordinary course of business.
b. That Trust II, on behalf of the Acquiring Fund, shall have executed
and delivered to the Acquired Fund an Assumption of Liabilities dated as of
the Exchange Date, pursuant to which the Acquiring Fund will, in connection
with the transactions contemplated by this Agreement, assume all of the
liabilities of the Acquired Fund existing as of the Valuation Time, other
than liabilities arising pursuant to this Agreement.
c. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of Trust II
certifying that as of the Exchange Date all representations and warranties
of the Acquiring Fund made in this Agreement are true and correct in all
material respects as if made at and as of such date, and that the Acquiring
Fund has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied at or prior to such
date.
d. That there shall not be any material litigation pending or
threatened with respect to the matters contemplated by this Agreement.
e. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx LLP, counsel to the Acquiring Fund, dated the Exchange Date, to the
effect that (i) Trust II is a Massachusetts business trust duly formed and
validly existing under the laws of the Commonwealth of Massachusetts, and
the Acquiring Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940 Act and the Agreement
and Declaration of Trust and By-Laws of Trust II; (ii) the Merger Shares to
be delivered to the Acquired Fund as provided for by this Agreement are
duly authorized and upon such delivery will be validly issued and will be
fully paid and (other than as described in the Registration Statement)
nonassessable Class A, B, C and Y shares of beneficial interest of the
Acquiring Fund and no shareholder of the Acquiring Fund has any preemptive
right to subscription or purchase in respect thereof; (iii) this Agreement
has been duly authorized, executed and delivered by Trust II on behalf of
the Acquiring Fund and, assuming that the Acquiring Fund Prospectus, the
Registration Statement and the Acquired Fund Proxy Statement comply with
the 1933 Act, the 1934 Act and the 1940 Act and assuming due authorization,
execution and delivery of this Agreement by Trust I on behalf of the
Acquired Fund, is a valid and binding obligation of Trust II and the
Acquiring Fund enforceable against Trust II and the Acquiring Fund in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and other equitable principles; (iv) the
execution and delivery of this Agreement did not, and the consummation of
the transactions contemplated hereby will not, violate the Agreement and
Declaration of Trust or By-Laws of Trust II, or any provision of any
agreement known to such counsel to which Trust II or the Acquiring Fund is
a party or by which it is bound or, to the knowledge of such counsel,
result in the acceleration of any obligation or the imposition of any
16
penalty under any agreement, judgment or decree to which Trust II or the
Acquiring Fund is a party or by which either of them is bound, it being
understood that with respect to investment restrictions as contained in the
Agreement and Declaration of Trust, By-Laws or then-current prospectuses or
statement of additional information of Trust II, such counsel may rely upon
a certificate of an officer of Trust II; (v) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Trust II on
behalf of the Acquiring Fund of the transactions contemplated herein,
except such as have been obtained under the 1933 Act, the 1934 Act and the
1940 Act and such as may be required under state securities or blue sky
laws; (vi) Trust II is registered with the Commission as an investment
company under the 1940 Act; and (vii) to the knowledge of such counsel, no
litigation or administrative proceeding or investigation of or before any
court or governmental body is presently pending or threatened as to Trust
II or the Acquiring Fund or any of their properties or assets that
challenges or seeks to prohibit, restrain or enjoin the transactions
contemplated by this Agreement. In addition, such counsel shall also state
that they have participated in conferences with officers and other
representatives of the Acquiring Fund at which the contents of the
Registration Statement and related matters were discussed, and, although
they are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, on the basis of the foregoing (relying as to
materiality upon the opinions of officers and other representatives of the
Acquiring Fund), no facts have come to their attention that lead them to
believe that the Registration Statement, as of its date, as of the date of
the Acquired Fund shareholders' meeting or as of the Exchange Date,
contained an untrue statement of a material fact regarding the Acquiring
Fund or omitted to state a material fact required to be stated therein or
necessary to make the statements therein regarding the Acquiring Fund, in
light of the circumstances under which they were made, not misleading. Such
opinion may state that such counsel does not express any opinion or belief
as to the financial statements or other financial data, or as to the
information relating to the Acquired Fund, contained in the Acquired Fund
Proxy Statement or the Registration Statement, and that such opinion is
solely for the benefit of the Acquired Fund, its Trustees and its officers.
f. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx LLP, dated the Exchange Date (which opinion would be based upon
certain factual representations and subject to certain qualifications), in
form satisfactory to the Acquired Fund to the effect that, on the basis of
the existing provisions of the Code, current administrative rules and court
decisions, while not entirely free from doubt, for federal income tax
purposes: (i) the transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a) of the
Code, and the Acquiring Fund and the Acquired Fund will each be "a party to
the reorganization" within the meaning of Section 368(b) of the Code; (ii)
under Section 361 of the Code, no gain or loss will be recognized by the
Acquired Fund (x) upon the transfer of its assets to the Acquiring Fund in
exchange for the Merger Shares and the assumption by the Acquiring Fund of
17
the liabilities of the Acquired Fund as contemplated in Section 3 hereof or
(y) upon the distribution of the Merger Shares to the shareholders of the
Acquired Fund as contemplated in Section 3 hereof; (iii) under Section 354
of the Code, no gain or loss will be recognized by shareholders of the
Acquired Fund on the distribution of Merger Shares to them in exchange for
their shares of the Acquired Fund; (iv) under Section 358 of the Code, the
aggregate tax basis of the Merger Shares that the Acquired Fund's
shareholders receive in place of their Acquired Fund shares will be the
same as the aggregate tax basis of the Acquired Fund shares surrendered in
exchange therefor; and (v) under Section 1223(1) of the Code, an Acquired
Fund's shareholder's holding period for the Merger Shares received pursuant
to the Agreement will be determined by including the holding period for the
Acquired Fund shares exchanged for the Merger Shares, provided that the
shareholder held the Acquired Fund shares as a capital asset.
g. That all actions taken by Trust II on behalf of the Acquiring Fund
in connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance to
the Acquired Fund and Ropes & Xxxx LLP.
h. That Trust II shall have received from the Commission and any
relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act, the
1940 Act and any applicable state securities or blue sky laws in connection
with the transactions contemplated hereby, and that all such orders shall
be in full force and effect.
i. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired
Fund entitled to vote.
j. That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of Trust II or the Acquiring Fund,
threatened by the Commission.
10. Indemnification.
a. The Acquired Fund shall indemnify and hold harmless, out of the
assets of the Acquired Fund but no other assets, Trust II and the Trustees
and officers of Trust II (for purposes of this Section 10(a), the "TRUST II
INDEMNIFIED PARTIES") against any and all expenses, losses, claims, damages
and liabilities at any time imposed upon or reasonably incurred by any one
or more of the Trust II Indemnified Parties in connection with, arising out
of or resulting from any claim, action, suit or proceeding in which any one
or more of the Trust II Indemnified Parties may be involved or with which
any one or more of the Trust II Indemnified Parties may be threatened by
reason of any untrue statement or alleged untrue statement of a material
fact relating to Trust I or the Acquired Fund contained in this Agreement,
the Registration Statement, the Acquired Fund Prospectus or the Acquired
Fund Proxy Statement or any amendment or supplement to any of the
foregoing, or arising out of or based upon the omission or alleged omission
to state in any of the foregoing a material fact relating to Trust I or the
Acquired Fund required to be stated therein or necessary to make the
statements relating to Trust I or the Acquired Fund therein not misleading,
including, without limitation, any amounts paid by any one or more of the
Trust II Indemnified Parties in a reasonable compromise or settlement of
any such claim, action, suit or proceeding, or threatened claim, action,
suit or proceeding made with the consent of Trust I or the Acquired Fund.
The Trust II Indemnified Parties will notify Trust I and the Acquired Fund
18
in writing within ten days after the receipt by any one or more of the
Trust II Indemnified Parties of any notice of legal process or any suit
brought against or claim made against such Trust II Indemnified Party as to
any matters covered by this Section 10(a). The Acquired Fund shall be
entitled to participate at its own expense in the defense of any claim,
action, suit or proceeding covered by this Section 10(a), or, if it so
elects, to assume at its expense by counsel satisfactory to the Trust II
Indemnified Parties the defense of any such claim, action, suit or
proceeding, and if the Acquired Fund elects to assume such defense, the
Trust II Indemnified Parties shall be entitled to participate in the
defense of any such claim, action, suit or proceeding at their expense. The
Acquired Fund's obligation under this Section 10(a) to indemnify and hold
harmless the Trust II Indemnified Parties shall constitute a guarantee of
payment so that the Acquired Fund will pay in the first instance any
expenses, losses, claims, damages and liabilities required to be paid by it
under this Section 10(a) without the necessity of the Trust II Indemnified
Parties' first paying the same.
b. The Acquiring Fund shall indemnify and hold harmless, out of the
assets of the Acquiring Fund but no other assets, Trust I and the Trustees
and officers of Trust I (for purposes of this Section 10(b), the "TRUST I
INDEMNIFIED PARTIES") against any and all expenses, losses, claims, damages
and liabilities at any time imposed upon or reasonably incurred by any one
or more of the Trust I Indemnified Parties in connection with, arising out
of, or resulting from any claim, action, suit or proceeding in which any
one or more of the Trust I Indemnified Parties may be involved or with
which any one or more of the Trust I Indemnified Parties may be threatened
by reason of any untrue statement or alleged untrue statement of a material
fact relating to the Acquiring Fund contained in this Agreement, the
Registration Statement, the Acquiring Fund Prospectus or the Acquired Fund
Proxy Statement or any amendment or supplement to any thereof, or arising
out of, or based upon, the omission or alleged omission to state in any of
the foregoing a material fact relating to Trust II or the Acquiring Fund
required to be stated therein or necessary to make the statements relating
to Trust II or the Acquiring Fund therein not misleading, including,
without limitation, any amounts paid by any one or more of the Trust I
Indemnified Parties in a reasonable compromise or settlement of any such
claim, action, suit or proceeding, or threatened claim, action, suit or
proceeding made with the consent of Trust II or the Acquiring Fund. The
Trust I Indemnified Parties will notify Trust II and the Acquiring Fund in
writing within ten days after the receipt by any one or more of the Trust I
Indemnified Parties of any notice of legal process or any suit brought
against or claim made against such Trust I Indemnified Party as to any
matters covered by this Section 10(b). The Acquiring Fund shall be entitled
to participate at its own expense in the defense of any claim, action, suit
or proceeding covered by this Section 10(b), or, if it so elects, to assume
at its expense by counsel satisfactory to the Trust I Indemnified Parties
the defense of any such claim, action, suit or proceeding, and, if the
Acquiring Fund elects to assume such defense, the Trust I Indemnified
Parties shall be entitled to participate in the defense of any such claim,
action, suit or proceeding at their own expense. The Acquiring Fund's
obligation under this Section 10(b) to indemnify and hold harmless the
Trust I Indemnified Parties shall constitute a guarantee of payment so that
the Acquiring Fund will pay in the first instance any expenses, losses,
19
claims, damages and liabilities required to be paid by it under this
Section 10(b) without the necessity of the Trust I Indemnified Parties'
first paying the same.
11. No Broker, etc. Each of the Acquired Fund and the Acquiring Fund
represents that there is no person who has dealt with it or Trust I or Trust II,
respectively, who, by reason of such dealings, is entitled to any broker's or
finder's or other similar fee or commission arising out of the transactions
contemplated by this Agreement.
12. Termination. The Acquired Fund and the Acquiring Fund may, by mutual
consent of the trustees on behalf of each Fund, terminate this Agreement, and
the Acquired Fund or the Acquiring Fund, after consultation with counsel and by
consent of its Trustees or an officer authorized by such Trustees, may waive any
condition to its respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially completed by December
31, 2003, this Agreement shall automatically terminate on that date unless a
later date is agreed to by the Acquired Fund and the Acquiring Fund.
13. Covenants, etc. Deemed Material. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
14. Rule 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund
will, in connection with the issuance of any Merger Shares to any person who at
the time of the transaction contemplated hereby is deemed to be an affiliate of
a party to the transaction pursuant to Rule 145(c), cause to be affixed upon the
certificates issued to such person (if any) a legend as follows:
"THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT TO CDC NVEST
GROWTH AND INCOME FUND OR ITS PRINCIPAL UNDERWRITER UNLESS (I) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (II) IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE FUND SUCH REGISTRATION IS NOT REQUIRED."
and, further, the Acquiring Fund will issue stop transfer instructions to the
Acquiring Fund's transfer agent with respect to such shares. The Acquired Fund
will provide the Acquiring Fund on the Exchange Date with the name of any
Acquired Fund shareholder who is to the knowledge of the Acquired Fund an
affiliate of the Acquired Fund on such date.
15. Sole Agreement; Amendments; Governing Law. This Agreement supersedes
all previous correspondence and oral communications between the parties
regarding the subject matter hereof, constitutes the only understanding with
respect to such subject matter, may not be changed except by a letter of
agreement signed by each party hereto, and shall be construed in accordance with
and governed by the laws of the Commonwealth of Massachusetts.
20
16. Declaration of Trust.
a. A copy of the Agreement and Declaration of Trust of Trust II is on
file with the Secretary of State of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of Trust II on behalf of the Acquiring Fund as trustees and not
individually, and that the obligations of this instrument are not binding
upon any of the trustees, officers or shareholders of Trust II individually
but are binding only upon the assets and property of the Acquiring Fund.
b. A copy of the Agreement and Declaration of Trust of Trust I is on
file with the Secretary of State of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of Trust I on behalf of the Acquired Fund as trustees and not
individually, and that the obligations of this instrument are not binding
upon any of the trustees, officers or shareholders of Trust I individually
but are binding only upon the assets and property of the Acquired Fund.
* * * *
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as a sealed instrument as of the day and year first above written.
CDC NVEST FUNDS TRUST I,
on behalf of its CDC Nvest Balanced Fund
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
CDC NVEST FUNDS TRUST II,
on behalf of its CDC Nvest Growth and
Income Fund
By:/ s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
21
Agreed and accepted as to Section 5 only:
CDC IXIS ASSET MANAGEMENT ADVISERS, L.P.
By: CDC IXIS Asset Management Distribution Corporation, its general partner
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
22
