Exhibit 4(c)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "AGREEMENT") is made as
of November 9, 2001, by and between Kobrick Emerging Growth Fund (the "ACQUIRED
FUND"), a series of CDC Kobrick Investment Trust, a Massachusetts business trust
(the "KOBRICK TRUST"), and CDC Nvest Star Growth Fund (the "ACQUIRING FUND"), a
series of the CDC Nvest Funds Trust I, a Massachusetts business trust (the "CDC
NVEST TRUST").
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 Classes 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 (the
"CODE").
(b) Upon consummation of the transactions described in paragraph (a) of this
Plan of Reorganization, the Acquired Fund shall distribute in complete
liquidation to its shareholders of record as of the Exchange Date the Merger
Shares, 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 (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 Master Trust Agreement of the Kobrick Trust, 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.
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AGREEMENT
The CDC Nvest Trust, on behalf of the Acquiring Fund, and the Kobrick
Trust, on behalf of the Acquired Fund, agree as follows:
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ACQUIRING FUND. The
CDC Nvest Trust, 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 the CDC Nvest Trust, 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. The CDC Nvest Trust 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
the CDC Nvest Trust. Each of the CDC Nvest Trust 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. The CDC Nvest Trust 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 September 30, 2001 (or, if appropriate, a
certification as of such date stating that the Acquiring Fund has not
commenced operations and therefore such financial statements have not
yet been prepared for the Acquiring Fund), shall have been furnished
to the Acquired Fund prior to the Exchange Date. Any such statement of
assets and liabilities and schedule shall fairly present the financial
position of the Acquiring Fund as of such date and said statements of
operations and changes in net assets (if any) 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 September 30, 2001, 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, if appropriate, changes occurring in connection with the
commencement of operations of the Acquiring Fund), 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. The CDC Nvest Trust 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
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undertaking to which the CDC Nvest Trust 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. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the CDC Nvest Trust or the Acquiring
Fund, threatened against the CDC Nvest Trust or the Acquiring Fund,
which assert liability on the part of the CDC Nvest Trust or the
Acquiring Fund. Neither the CDC Nvest Trust 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.
g. 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, if any, as
of September 30, 2001 delivered pursuant to Section 1.c hereto, 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
September 30, 2001, whether or not incurred in the ordinary course of
business.
h. 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 CDC
Nvest Trust's officers, 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 or
local tax authority for taxes in excess of those already paid.
i. 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 Securities Act of 1933, as
amended (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).
j. 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 1(q) herein).
k. 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
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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.
l. The Acquiring Fund qualifies and will at all times through the Exchange
Date qualify for taxation as a "regulated investment company" under
Sections 851 and 852 of the Code.
m. The issuance of the Merger Shares pursuant to this Agreement will be in
compliance with all applicable federal and state securities laws.
n. 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 shares of beneficial interest in the
Acquiring Fund and will be fully paid and nonassessable by the
Acquiring Fund, and no shareholder of the Acquiring Fund will have any
preemptive right of subscription or purchase in respect thereof.
o. 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 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 Registration Statement.
p. 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
Registration Statement.
q. The registration statement (the "REGISTRATION STATEMENT") filed with
the Securities and Exchange Commission (the "COMMISSION") by the CDC
Nvest Trust on Form N-14 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 the Registration
Statement, as amended or supplemented by any amendments or supplements
filed with the Commission by the CDC Nvest Trust, 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
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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 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.
r. The information to be furnished by the Acquiring Fund for use in the
Registration Statement and Proxy Statement shall be accurate and
complete in all material respects and shall comply with federal
securities and other laws and regulations applicable thereto.
s. The prospectuses and statement of additional information of the
Acquiring Fund, each as from time to time amended or supplemented
(collectively, the "CDC NVEST PROSPECTUS"), filed as part of
post-effective amendment number 45 to the Registration Statement on
Form N-1A of the CDC Nvest Trust will, as of the date of effectiveness
and as of the Exchange Date, (i) conform in all material respects to
the applicable requirements of the Securities Act of 1933, as amended
(the "1933 ACT"), and (ii) will not contain, with respect to the CDC
Nvest Trust 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, and such
post-effective amendment number 45 shall have become effective by the
Exchange Date.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ACQUIRED FUND. The
Kobrick Trust, 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 the Kobrick Trust, 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.
The Kobrick Trust 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 the Kobrick Trust.
Each of the Kobrick Trust 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. The Kobrick Trust 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 March 31, 2001, 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
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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 March 31, 2001, 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 purposes of
this Section 2(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. The Kobrick Trust is not in violation in any material respect of any
provision of its Master Trust Agreement or By-Laws or of any agreement,
indenture, instrument, contract, lease or other undertaking to which
the Kobrick Trust 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 February 1, 2001, and each as from time to
time amended or supplemented (the "KOBRICK 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 the Kobrick Trust 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 its
prospectus and statement of additional information as in effect from
time to time, except as previously disclosed in writing to the
Acquiring Fund.
h. At the Exchange Date, the Kobrick Trust, 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. As used in this
Agreement, the term "INVESTMENTS" shall mean the Acquired Fund's
investments shown on the schedule of its investments as of March 31,
2001, referred to in Section 2(c) hereof, as modified by such changes
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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.
i. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the Kobrick Trust or the Acquired Fund,
threatened against the Kobrick Trust or the Acquired Fund, which assert
liability on the part of the Kobrick Trust 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 the Kobrick
Prospectus, the 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 March 31,
2001, 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 material liabilities, contingent or otherwise,
incurred by it subsequent to March 31, 2001, 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
the Kobrick Trust's officers, are required to have been filed by the
Acquired 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
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 or local tax authority for taxes in
excess of those already paid.
m. 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.
n. 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.
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o. The Acquired Fund qualifies and will at all times through the Exchange
Date qualify for taxation as a "regulated investment company" under
Sections 851 and 852 of the Code.
p. 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 Kobrick Prospectus, as amended through the Exchange Date.
q. 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.
r. 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 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 Kobrick Prospectus.
s. The Registration Statement and 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 and the Registration 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
Registration Statement or the Acquired Fund Proxy Statement made in
reliance upon and in conformity with information furnished by the
Acquiring Fund for use in the Registration Statement or the Acquired
Fund Proxy Statement.
t. The Kobrick Trust 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
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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).
u. The information provided by the Acquired Fund for use in the
Registration Statement and Proxy Statement shall be accurate and
complete in all material respects and shall comply 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 applicable) to distribute to its
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 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. The Acquired Fund will, as soon as
practicable after the Exchange Date, distribute 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 earlier or later day as may be mutually agreed upon in writing
by the parties hereto (the "VALUATION TIME").
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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 of the Acquired Fund 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
each class of the Acquired Fund, and the value of the liabilities
attributable to the shares of each class of the Acquired Fund to be
assumed by the Acquiring Fund, shall in each case be determined as of
the Valuation Time.
b. The net asset value of the Merger Shares shall be computed in the
manner set forth in the Registration Statement. The value of the assets
and liabilities attributable to the shares of each class 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 (including but not limited to the
obligation of the Acquired Fund, to the extent and subject to the
limitations set forth in the Master Trust Agreement of the Kobrick
Trust, to indemnify the Trustees of the Kobrick Trust in their
capacity as such Trustees, the amount of which obligation is hereby
limited to an amount equal to the aggregate net asset value of the
Merger Shares as of the Valuation Time, it being understood that such
obligation shall in no way be extinguished, reduced or otherwise
affected by the termination of the legal existence of the Kobrick
Trust), in connection with the acquisition of assets and subsequent
liquidation and dissolution of the Acquired Fund or otherwise.
5. EXPENSES, FEES, ETC.
a. Except as otherwise provided in this Section 5, CDC IXIS Asset
Management North America, L.P. ("CDC"), by countersigning this
Agreement, agrees that it will bear any and all costs and expenses of
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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 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. 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 Section 851
of the Code.
b. 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.
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 Company, as of the close of business on November 16, 2001,
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. The Kobrick Trust, 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 Kobrick
Trust's Master Trust Agreement 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 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.
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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 Kobrick
Trust's President (or any Vice President) and Treasurer, 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 March 31, 2001 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 March
31, 2001 and in the Acquired Fund's statement of assets and
liabilities as of the Valuation Time.
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the Kobrick Trust's
President (or any Vice President) and Treasurer 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 Kobrick Trust's independent accountants, 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, or local 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 September 30, 2001 and
for any taxable year or period beginning on October 1, 2001 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, counsel to the Acquired Fund, dated the Exchange Date, to the
effect that (i) the Kobrick Trust 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 Master Trust Agreement and By-Laws of the Kobrick Trust;
(ii) this Agreement has been duly authorized, executed and delivered
12
by the Kobrick Trust on behalf of the Acquired Fund and, assuming that
the Registration Statement, the Kobrick 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 the CDC Nvest Trust on behalf of the Acquiring Fund,
is a valid and binding obligation of the Kobrick Trust and the
Acquired Fund enforceable against the Kobrick Trust 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) the Kobrick Trust, on behalf of the Acquired Fund,
has power to sell, assign, convey, transfer and deliver the assets
contemplated hereby; (iv) the execution and delivery of this Agreement
did not, and the consummation of the transactions contemplated hereby
will not, violate the Kobrick Trust's Master Trust Agreement or
By-Laws, or any provision of any agreement known to such counsel to
which the Kobrick Trust 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 the Kobrick Trust or the Acquired Fund is party or by which
either of them is bound, it being understood that with respect to
investment restrictions contained in the Kobrick Trust's Master Trust
Agreement, By-Laws or then-current prospectuses or statement of
additional information, such counsel may rely upon a certificate of an
officer of the Kobrick Trust; (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 the Kobrick Trust 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) the Kobrick Trust 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 the Kobrick Trust 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
13
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, 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, 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 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
Registration Statement in effect on the Exchange Date, may not properly
acquire.
h. That the Kobrick Trust 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 the Kobrick Trust 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.
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
14
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 September
30, 2001 and for any taxable year or period beginning on October 1,
2001 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 of the Kobrick Trust, 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 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 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, 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 Kobrick Trust's
independent accountants 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.
15
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
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 the CDC Nvest Trust 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 CDC Nvest Trust's President (or any Vice President) and Treasurer
(or any Assistant Treasurer), 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 position of the Acquiring Fund since September 30,
2001 other than changes occurring in the ordinary course of business.
b. That the CDC Nvest Trust, 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 assume all of the liabilities of the Acquired Fund
(including but not limited to the obligation of the Acquired Fund, to
the extent and subject to the limitations set forth in the Master
Trust Agreement of the Kobrick Trust, to indemnify the Trustees of the
Kobrick Trust in their capacity as such Trustees, the amount of which
obligation is limited to an amount equal to the aggregate net asset
value of the Merger Shares as of the Valuation Time, it being
understood that such obligation shall in no way be extinguished,
reduced or otherwise affected by the termination of the legal
existence of the Kobrick Trust).
c. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement, dated the Exchange Date, signed by the CDC Nvest Trust's
President (or any Vice President) and Treasurer (or any Assistant
Treasurer) 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.
16
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,
counsel to the Acquiring Fund, dated the Exchange Date, to the effect
that (i) the CDC Nvest Trust 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 Declaration of Trust and By-Laws of the CDC Nvest
Trust; (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 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 the CDC Nvest Trust on behalf of the
Acquiring Fund and, assuming that 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 the Kobrick Trust on behalf of the
Acquired Fund, is a valid and binding obligation of the CDC Nvest
Trust and the Acquiring Fund enforceable against the CDC Nvest Trust
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 CDC Nvest Trust's
Declaration of Trust or By-Laws, or any provision of any agreement
known to such counsel to which the CDC Nvest Trust 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 penalty under any agreement, judgment or decree to
which the CDC Nvest Trust or the Acquiring Fund is party or by which
either of them is bound, it being understood that with respect to
investment restrictions contained in the CDC Nvest Trust's Declaration
of Trust, By-Laws or then-current prospectuses or statement of
additional information, such counsel may rely upon a certificate of an
officer of the CDC Nvest Trust; (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 the CDC
Nvest Trust 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) the CDC Nvest Trust 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 the CDC
Nvest Trust 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
17
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,
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, 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 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 the CDC Nvest Trust 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.
h. That the CDC Nvest Trust 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
18
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 the CDC Nvest Trust or the
Acquiring Fund, threatened by the Commission.
k. That the Acquired Fund shall have received an opinion of Ropes & Xxxx
with respect to the matters specified in Section 8(f) of this
Agreement, and such other matters as the Acquired Fund may deem
necessary or desirable
l. That the CDC Trust shall have (i) obtained such insurance coverage as
is necessary to ensure that the Trustees of the Kobrick Trust are
covered by liability insurance as if such Kobrick Trustees were
Trustees of the CDC Nvest Trust as of the Exchange Date, and (ii)
obtained "tail" liability insurance with an aggregate coverage amount
of $5 million and a deductible of $500,000 covering claims that may be
made against the Trustees and the officers of the Kobrick Trust in
their capacity as such Trustees or officers, as the case may be, for a
period of six years following the Exchange Date.
10. TRUSTEE INSURANCE. The CDC Nvest Trust shall, for a period of six years
after the Exchange Date, (i) take such steps as are necessary to ensure that the
Trustees of the Kobrick Trust who are Trustees as of August 10, 2001 are covered
by liability insurance as if such Kobrick Trust Trustees were Trustees of the
CDC Nvest Trust during such period and (ii) maintain the "tail" insurance
referred to in clause (ii) of Section 9.l hereto.
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 the Kobrick Trust or the CDC
Nvest Trust, 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 February
28, 2002, this Agreement shall automatically terminate on that date unless a
later date is agreed to by the Acquired Fund and the Acquiring Fund.
19
13. COVENANTS, ETC. DEEMED MATERIAL; NO SURVIVAL OF REPRESENTATIONS. 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. The representations of the
parties set forth in Sections 1 and 2 of this Agreement shall not survive the
closing of the transactions contemplated by this Agreement.
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 STAR GROWTH 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.
16. DECLARATION OF TRUST.
a. A copy of the Agreement and Declaration of Trust of the CDC Nvest Trust
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 the CDC Nvest Trust 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 the CDC Nvest Trust individually
but are binding only upon the assets and property of the Acquiring
Fund.
20
b. A copy of the Master Trust Agreement of the Kobrick Trust 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 the Kobrick Trust 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 the Kobrick Trust individually but are binding only
upon the assets and property of the Acquired Fund.
CDC KOBRICK INVESTMENT TRUST,
on behalf of its Kobrick
Emerging Growth Fund
By:/S/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
CDC NVEST FUNDS TRUST I,
on behalf of its CDC Nvest
Star Growth Fund
By:/S/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Agreed and accepted as to Section 5 only:
CDC IXIS ASSET MANAGEMENT NORTH AMERICA, L.P.
By:/S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Senior Vice President and Treasurer
21
