Exhibit A
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 19th day of September, 1995, by and between Evergreen Investment
Trust, a Massachusetts business trust (the "Evergreen Trust"), with its
principal place of business at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000, with respect to its Evergreen Treasury Money Market Fund series (the
"Acquiring Fund"), and FFB Funds Trust (the "FFB Trust"), a Massachusetts
business trust, with respect to its FFB 100% U.S. Treasury Fund series,
with its principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Selling Fund").
This Agreement is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368 (a)(1)(C) of the United
States Internal Revenue Code of 1986 (the "Code"). The reorganization
(the "Reorganization") will consist of the transfer of substantially all of
the assets of the Selling Fund in exchange solely for Class A shares of
beneficial interest, without par value, of the Acquiring Fund (the
"Acquiring Fund Shares") and the assumption by the Acquiring Fund of
certain stated liabilities of the Selling Fund and the distribution, after
the Closing Date hereinafter referred to, of the Acquiring Fund Shares to
the shareholders of the Selling Fund in liquidation of the Selling Fund as
provided herein, all upon the terms and conditions hereinafter set forth in
this Agreement.
WHEREAS, the Selling Fund and the Acquiring Fund are separate investment
series of open-end, registered investment companies of the management type
and the Selling Fund owns securities which generally are assets of the
character in which the Acquiring Fund is permitted to invest;
WHEREAS, both Funds are authorized to issue their shares of beneficial
interest;
WHEREAS, the Trustees of the Evergreen Trust have determined that the
exchange of substantially all of the assets of the Selling Fund for
Acquiring Fund Shares and the assumption of certain stated liabilities by
the Acquiring Fund on the terms and conditions hereinafter set forth is are
in the best interests of the Acquiring Fund shareholders and that the
interests of the existing shareholders of the Acquiring Fund will not be
diluted as a result of the transactions contemplated herein;
WHEREAS, the Trustees of the FFB Trust have determined that the Selling
Fund should exchange substantially all of its assets and certain of its
liabilities for Acquiring Fund Shares and that the interests of the
existing shareholders of the Selling Fund will not be diluted as a result
of the transactions contemplated herein;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE I
TRANSFER OF ASSETS OF THE SELLING FUND IN EXCHANGE FOR THE ACQUIRING
FUND SHARES AND ASSUMPTION OF SELLING FUND LIABILITIES AND LIQUIDATION OF
THE SELLING FUND
1.1 The Exchange. Subject to the terms and conditions herein set forth and
on the basis of the representations and warranties contained herein, the
Selling Fund agrees to transfer substantially all of the Selling Fund's
assets as set forth in paragraph 1.2 to the Acquiring Fund, and the
Acquiring Fund agrees in exchange therefor (i) to deliver to the Selling
Fund the number of Acquiring Fund Shares, including fractional Acquiring
Fund Shares, determined by multiplying the shares outstanding of each class
of the Selling Fund by the ratio computed by dividing the net asset value
per share of each such class of the Selling Fund by the net asset value per
share of the Acquiring Fund Shares computed in the manner and as of the
time and date set forth in paragraph 2.2 and (ii) to assume certain
liabilities of the Selling Fund, as set forth in paragraph 1.3. Such
transactions shall take place at the closing provided for in paragraph 3.1
(the "Closing Date").
1.2 Assets to be Acquired. The assets of the Selling Fund to be acquired by
the Acquiring Fund shall consist of all property, including without
limitation all cash, securities, commodities and futures interests and
dividends or interest receivable, which are owned by the Selling Fund and
any deferred or prepaid expenses shown as an asset on the books of the
Selling Fund on the Closing Date. The Selling Fund has provided the
Acquiring Fund with its most recent audited financial statements which
contain a list of all of Selling Fund's assets as of the date thereof. The
Selling Fund hereby represents that as of the date of the execution of this
Agreement there have been no changes in its financial position as
reflected in said financial statements other than those occurring in the
ordinary course of its business in connection with the purchase and sale of
securities and the payment of its normal operating expenses. The Selling
Fund reserves the right to sell any of such securities but will not,
without the prior written approval of the Acquiring Fund, acquire any
additional securities other than securities of the type in which the
Acquiring Fund is permitted to invest. The Acquiring Fund will, within a
reasonable time prior to the Closing Date, furnish the Selling Fund with a
statement of the Acquiring Fund's investment objectives, policies and
restrictions and a list of the securities, if any, on the Selling Fund's
list referred to in the second sentence of this paragraph which do not
conform to the Acquiring Fund's investment objectives, policies, and
restrictions. In the event that the Selling Fund holds any investments
which the Acquiring Fund may not hold, the Selling Fund will dispose of
such securities prior to the Closing Date. In addition, if it is determined
that the Selling Fund and the Acquiring Fund portfolios, when aggregated,
would contain investments exceeding certain percentage limitations imposed
upon the Acquiring Fund with respect to such investments, the Selling Fund
if requested by the Acquiring Fund will dispose of a sufficient amount of
such investments as may be necessary to avoid violating such limitations as
of the Closing Date.
1.3 Liabilities to be Assumed. The Selling Fund will endeavor to discharge
all of its known liabilities and obligations prior to the Closing Date.
The Acquiring Fund shall assume only those liabilities, expenses, costs,
charges and reserves reflected on a Statement of Assets and Liabilities of
the Selling Fund prepared by Xxxxxx Xxxx Incorporated, the administrator of
the Selling Fund, as of the Valuation Date (as defined in paragraph 2.1),
in accordance with generally accepted accounting principles consistently
applied from the prior audited period. The Acquiring Fund shall assume
only those liabilities of the Selling Fund reflected in such Statement of
Assets and Liabilities and shall not assume any other liabilities, whether
absolute or contingent, known or unknown, accrued or unaccrued, all of
which shall remain the obligation of the Selling Fund.
1.4 Liquidation and Distribution. As soon after the Closing Date as is
conveniently practicable (the "Liquidation Date"), (a) the Selling Fund
will liquidate and distribute pro rata to the Selling Fund's shareholders
of record, determined as of the close of business on the Closing Date (the
"Selling Fund Shareholders"), the Acquiring Fund Shares received by the
Selling Fund pursuant to paragraph 1.1. and (b) the Selling Fund will
thereupon proceed to dissolve as set forth in paragraph 1.8 below. Such
liquidation and distribution will be accomplished by the transfer of the
Acquiring Fund Shares then credited to the account of the Selling Fund on
the books of the Acquiring Fund, to open accounts on the share records of
the Acquiring Fund in the names of the Selling Fund Shareholders and
representing the respective pro rata number of the Acquiring Fund Shares
due such shareholders. All issued and outstanding shares of the Selling
Fund will simultaneously be canceled on the books of the Selling Fund. The
Acquiring Fund shall not issue certificates representing the Acquiring Fund
Shares in connection with such exchange.
1.5 Ownership of Shares. Ownership of Acquiring Fund Shares will be shown
on the books of the Acquiring Fund's transfer agent. Shares of the
Acquiring Fund will be issued in the manner described in the combined
Prospectus and Proxy Statement on Form N-14 to be distributed to
shareholders of the Selling Fund as described in Section 5 paragraph 5.7.
1.6 Transfer Taxes. Any transfer taxes payable upon issuance of the
Acquiring Fund Shares in a name other than the registered holder of the
Selling Fund shares on the books of the Selling Fund as of that time shall,
as a condition of such issuance and transfer, be paid by the person to whom
such Acquiring Fund Shares are to be issued and transferred.
1.7 Reporting Responsibility. Any reporting responsibility of the Selling
Fund is and shall remain the responsibility of the Selling Fund up to and
including the Closing Date and such later date on which the Selling Fund is
terminated.
1.8 Termination. The Selling Fund shall be terminated promptly following
the Closing Date and the making of all distributions pursuant to paragraph
1.4.
ARTICLE II
VALUATION
2.1 Valuation of Assets. The value of the Selling Fund's assets to be
acquired by the Acquiring Fund hereunder shall be the value of such assets
computed as of the close of business on the New York Stock Exchange on the
Closing Date (such time and date being hereinafter called the "Valuation
Date"), using the valuation procedures set forth in the Evergreen Trust's
Declaration of Trust and the Acquiring Fund's then current prospectus and
statement of additional information or such other valuation procedures as
shall be mutually agreed upon by the parties.
2.2 Valuation of Shares. The net asset value per share of the Acquiring
Fund Shares shall be the net asset value per share computed as of the close
of business on the New York Stock Exchange on the Valuation Date, using the
valuation procedures set forth in the Evergreen Trust's Declaration of
Trust and the Acquiring Fund's then current prospectus and statement of
additional information.
2.3 Shares to be Issued. The number of the Acquiring Fund Shares of each
class to be issued (including fractional shares, if any) in exchange for
the Selling Fund's assets shall be determined by multiplying the shares
outstanding of each class of the Selling Fund by the ratio computed by
dividing the net asset value per share of the Selling Fund attributable to
each of its classes by the net asset value per share of the respective
classes of the Acquiring Fund determined in accordance with paragraph 2.2.
2.4 Determination of Value. All computations of value shall be made by
State Street Bank and Trust Company in accordance with its regular practice
in pricing the shares and assets of the Acquiring Fund.
ARTICLE III
CLOSING AND CLOSING DATE
3.1 Closing Date. The Closing (the "Closing") shall take place on January
12 19, 1996 or such other date as the parties may agree to in writing (the
"Closing Date"). All acts taking place at the Closing shall be deemed to
take place simultaneously as of the close of business on the Closing Date
unless otherwise provided. The Closing shall be held as of 9:00 o'clock
a.m. at the offices of Evergreen Asset Management Corp., 0000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, or at such other time and/or place as
the parties may agree.
3.2 Custodian's Certificate. First Fidelity Bank, N.A., as custodian for
the Selling Fund (the "Custodian"), shall deliver at the Closing a
certificate of an authorized officer stating that: (a) the Selling Fund's
portfolio securities, cash, and any other assets shall have been delivered
in proper form to the Acquiring Fund on the Closing Date and (b) all
necessary taxes including all applicable Federal and state stock transfer
stamps, if any, shall have been paid, or provision for payment shall have
been made, in conjunction with the delivery of portfolio securities by the
Selling Fund.
3.3 Effect of Suspension in Trading. In the event that on the Valuation
Date (a) the New York Stock Exchange or another primary trading market for
portfolio securities of the Acquiring Fund or the Selling Fund shall be
closed to trading or trading thereon shall be restricted, or (b) trading or
the reporting of trading on said Exchange or elsewhere shall be disrupted
so that accurate appraisal of the value of the net assets of the Acquiring
Fund or the Selling Fund is impracticable, the Closing Date shall be
postponed until the first business day after the day when trading shall
have been fully resumed and reporting shall have been restored.
3.4 Transfer Agent's Certificate. First Fidelity Bank, N.A., as transfer
agent for the Selling Fund shall deliver at the Closing a certificate of an
authorized officer stating that its records contain the names and addresses
of the Selling Fund Shareholders and the number and percentage ownership of
outstanding shares owned by each such shareholder immediately prior to the
Closing. The Acquiring Fund shall issue and deliver or cause its transfer
agent to issue and deliver a confirmation evidencing the Acquiring Fund
Shares to be credited on the Closing Date to the Secretary of the FFB Trust
, or provide evidence satisfactory to the Selling Fund that such Acquiring
Fund Shares have been credited to the Selling Fund's account on the books
of the Acquiring Fund. At the Closing each party shall deliver to the other
such bills of sale, checks, assignments, share certificates, if any,
receipts and other documents as such other party or its counsel may
reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations of the Selling Fund. The Selling Fund represents and
warrants to the Acquiring Fund as follows:
(a) The Selling Fund is a separate investment series of a Massachusetts
business trust duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts;
(b) The Selling Fund is a separate investment series of a registered
investment company classified as a management company of the open-end type
and its registration with the Securities and Exchange Commission (the
"Commission") as an investment company under the Investment Company Act of
1940, as amended (the "1940 Act") is in full force and effect;
(c) The current prospectus and statement of additional information of the
Selling Fund conform in all material respects to the applicable
requirements of the Securities Act of 1933, as amended (the "1933 Act") and
the 1940 Act and the rules and regulations of the Commission thereunder and
do not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not materially misleading;
(d) The Selling Fund is not, and the execution, delivery and performance of
this Agreement (subject to shareholder approval) will not, result in a
violation of any provision of the FFB Trust's Declaration of Trust or
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which the Selling Fund is a party or by which it is
bound;
(e) The Selling Fund has no material contracts or other commitments (other
than this Agreement) which will be terminated with liability to it prior to
the Closing Date;
(f) Except as otherwise disclosed in writing to and accepted by the
Acquiring Fund, no litigation, administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Selling Fund or any of its properties or
assets which, if adversely determined, would materially and adversely
affect its financial condition, the conduct of its business or the ability
of the Selling Fund to carry out the transactions contemplated by this
Agreement. The Selling 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;
(g) The financial statements of the Selling Fund at June 30, 1995 are in
accordance with generally accepted accounting principles consistently
applied, and such statements (copies of which have been furnished to the
Acquiring Fund) fairly reflect the financial condition of the Selling Fund
as of such date, and there are no known contingent liabilities of the
Selling Fund as of such date not disclosed therein;
(h) Since June 30, 1995 there has not been any material adverse change in
the Selling Fund's financial condition, assets, liabilities or business
other than changes occurring in the ordinary course of business, or any
incurrence by the Selling Fund of indebtedness maturing more than one year
from the date such indebtedness was incurred, except as otherwise disclosed
to and accepted by the Acquiring Fund. For the purposes of this
subparagraph (h), a decline in the net asset value of the Selling Fund
shall not constitute a material adverse change;
(i) At the Closing Date, all Federal and other tax returns and reports of
the Selling Fund required by law to have been filed by such dates shall
have been filed, and all Federal and other taxes shown due on said returns
and reports shall have been paid, or provision shall have been made for the
payment thereof and to the best of the Selling Fund's knowledge no such
return is currently under audit and no assessment has been asserted with
respect to such returns;
(j) For each fiscal year of its operation, the Selling Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as
a regulated investment company and has distributed in each such year all
net investment income and realized capital gains;
(k) All issued and outstanding shares of the Selling Fund are, and at the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by the Selling Fund (except that, under Massachusetts
law, Selling Fund Shareholders could, under certain circumstances be held
personally liable for obligations of the Selling Fund). All of the issued
and outstanding shares of the Selling Fund will, at the time of the Closing
Date, be held by the persons and in the amounts set forth in the records of
the transfer agent as provided in paragraph 3.4. The Selling Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any of the Selling Fund shares, nor is there outstanding any
security convertible into any of the Selling Fund shares;
(l) At the Closing Date, the Selling Fund will have good and marketable
title to the Selling Fund's assets to be transferred to the Acquiring Fund
pursuant to paragraph 1.2 and full right, power, and authority to sell,
assign, transfer and deliver such assets hereunder, and upon delivery and
payment for such assets, the Acquiring Fund will acquire good and
marketable title thereto, subject to no restrictions on the full transfer
thereof, including such restrictions as might arise under the 1933 Act,
other than as disclosed to the Acquiring Fund and accepted by the Acquiring
Fund;
(m) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Selling Fund
and, subject to approval by the Selling Fund Shareholders, this Agreement
constitutes a valid and binding obligation of the Selling Fund, enforceable
in accordance with its terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights and to general equity principles;
(n) The information to be furnished by the Selling Fund for use in
no-action letters, applications for orders, registration statements, proxy
materials and other documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete in all
material respects and shall comply in all material respects with Federal
securities and other laws and regulations thereunder applicable thereto;
(o) The proxy statement of the Selling Fund to be included in the
Registration Statement referred to in paragraph 5.7 (other than information
therein that relates to the Acquiring Fund) will, on the effective date of
the Registration Statement and on the Closing Date, not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which such statements were made, not misleading.
4.2 Representations of the Acquiring Fund. The Acquiring Fund represents
and warrants to the Selling Fund as follows:
(a) The Acquiring Fund is a separate investment series of a Massachusetts
business trust duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts.;
(b) The Acquiring Fund is a separate investment series of a Massachusetts
business trust that is registered as an investment company classified as a
management company of the open-end type and its registration with the
Commission as an investment company under the 1940 Act is in full force and
effect;
(c) The current prospectus and statement of additional information of the
Acquiring Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations
of the Commission thereunder and do not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) The Acquiring Fund is not, and the execution, delivery and performance
of this Agreement will not, result in a violation of Evergreen Trust's
Declaration of Trust or By-Laws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Acquiring Fund is a party
or by which it is bound;
(e) Except as otherwise disclosed in writing to the Selling Fund and
accepted by the Selling Fund, no litigation, administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Acquiring Fund or any of
its properties or assets which, if adversely determined, would materially
and adversely affect its financial condition and the conduct of its
business or the ability of the Acquiring Fund to carry out the transactions
contemplated by this Agreement. The Acquiring Fund knows of no facts which
might form the basis for the institution of such proceedings and is not a
party to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions contemplated herein;
(f) The financial statements of the Acquiring Fund at December 31, 1994,
have been audited by KPMG Peat Marwick LLP, certified public accountants,
and are in accordance with generally accepted accounting principles
consistently applied, and such statements (copies of which have been
furnished to the Selling Fund) fairly reflect the financial condition of
the Acquiring Fund as of such date, and there are no known contingent
liabilities affecting the Acquiring Fund as of such date not disclosed
therein;
(g) Since December 31, 1994 there has not been any material adverse change
in the Acquiring Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of business,
or any incurrence by the Acquiring Fund of indebtedness maturing more than
one year from the date such indebtedness was incurred, except as otherwise
disclosed to and accepted by the Acquiring Fund. For the purposes of this
subparagraph (g), a decline in the net asset value of the Acquiring Fund
shall not constitute a material adverse change;
(h) At the Closing Date, all Federal and other tax returns and reports of
the Acquiring Fund required by law then to be filed by such dates shall
have been filed, and all Federal and other taxes shown due on said returns
and reports shall have been paid or provision shall have been made for the
payment thereof and to the best of the Acquiring Fund's knowledge, no such
return is currently under audit and no assessment has been asserted with
respect to such returns;
(i) For each fiscal year of its operation the Acquiring Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as
a regulated investment company and has distributed in each such year all
net investment income and realized capital gains;
(j) All issued and outstanding Acquiring Fund Shares are, and at the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable (except that, under Massachusetts law, shareholders of
the Acquiring Fund could, under certain circumstances, be held personally
liable for obligations of the Acquiring Fund). The Acquiring Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any Acquiring Fund Shares, nor is there outstanding any security
convertible into any Acquiring Fund Shares;
(k) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Acquiring Fund,
and this Agreement constitutes a valid and binding obligation of the
Acquiring Fund enforceable in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights and to general equity
principles;
(l) The Acquiring Fund Shares to be issued and delivered to the Selling
Fund, for the account of the Selling Fund Shareholders, pursuant to the
terms of this Agreement will at the Closing Date have been duly authorized
and, when so issued and delivered, will be duly and validly issued
Acquiring Fund Shares, and will be fully paid and non-assessable (except
that, under Massachusetts law, shareholders of the Acquiring Fund could,
under certain circumstances, be held personally liable for obligations of
the Acquiring Fund);
(m) The information to be furnished by the Acquiring Fund for use in no-
action letters, applications for orders, registration statements, proxy
materials and other documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete in all
material respects and shall comply in all material respects with Federal
securities and other laws and regulations applicable thereto;
(n) The Prospectus and Proxy Statement to be included in the Registration
Statement (only insofar as it relates to the Acquiring Fund ) will, on the
effective date of the Registration Statement and on the Closing Date, not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements were
made, not misleading; and
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and
such of the state Blue Sky or securities laws as it may deem appropriate in
order to continue its operations after the Closing Date.
ARTICLE V
COVENANTS OF THE ACQUIRING FUND AND THE SELLING FUND
5. 1 Operation in Ordinary Course. The Acquiring Fund and the Selling Fund
each will operate its business in the ordinary course between the date
hereof and the Closing Date, it being understood that such ordinary course
of business will include customary dividends and distributions.
5.2 Approval of Shareholders. The FFB Trust will call a meeting of the
Selling Fund Shareholders to consider and act upon this Agreement and to
take all other action necessary to obtain approval of the transactions
contemplated herein.
5.3 Investment Representation. The Selling Fund covenants that the
Acquiring Fund Shares to be issued hereunder are not being acquired for the
purpose of making any distribution thereof other than in accordance with
the terms of this Agreement.
5.4 Additional Information. The Selling Fund will assist the Acquiring
Fund in obtaining such information as the Acquiring Fund reasonably
requests concerning the beneficial ownership of the Selling Fund shares.
5.5 Further Action. Subject to the provisions of this Agreement, the
Acquiring Fund and the Selling Fund will each take, or cause to be taken,
all action, and do or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated by this Agreement, including any actions required to be taken
after the Closing Date.
5.6 Statement of Earnings and Profits. As promptly as practicable, but in
any case within sixty days after the Closing Date, the Selling Fund shall
furnish the Acquiring Fund, in such form as is reasonably satisfactory to
the Acquiring Fund, a statement of the earnings and profits of the Selling
Fund for Federal income tax purposes which will be carried over by the
Acquiring Fund as a result of Section 381 of the Code, and which will be
certified by the FFB Trust's President, its Treasurer and its independent
auditors.
5.7 Preparation of Form N-14 Registration Statement. The Selling Fund will
provide the Acquiring Fund with information reasonably necessary for the
preparation of a prospectus which will include the proxy statement,
referred to in paragraph 4.1(o) (the "Prospectus and Proxy Statement"), all
to be included in a Registration Statement on Form N-14 of the Acquiring
Fund (the "Registration Statement"), in compliance with the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the 1940
Act in connection with the meeting of the Selling Fund Shareholders to
consider approval of this Agreement and the transactions contemplated
herein.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND
The obligations of the Selling Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance
by the Acquiring Fund of all the obligations to be performed by it
hereunder on or before the Closing Date, and, in addition thereto, the
following further conditions:
6.1 All representations, covenants and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct as of the date hereof
and as of the Closing Date with the same force and effect as if made on and
as of the Closing Date, and the Acquiring Fund shall have delivered to the
Selling Fund a certificate executed in its name by the Evergreen Trust's
President or Vice President and its Treasurer or Assistant Treasurer, in
form and substance reasonably satisfactory to the Selling Fund and dated as
of the Closing Date, to such effect and as to such other matters as the
Selling Fund shall reasonably request; and
6.2 The Selling Fund shall have received on the Closing Date an opinion
from Xxxxxxxx & Worcester, counsel to the Acquiring Fund, dated as of the
Closing Date, in a form reasonably satisfactory to the Selling Fund,
covering the following points:
That (a) the Acquiring Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
power to own all of its properties and assets and to carry on its business
as presently conducted; (b) this Agreement has been duly authorized,
executed and delivered by the Acquiring Fund, and, assuming that the
Prospectus and Proxy Statement, and Registration Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and, assuming due authorization, execution and delivery of this
Agreement by the Selling Fund, is a valid and binding obligation of the
Acquiring Fund enforceable against the Acquiring Fund in accordance with
its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and to general equity principles; (c) assuming
that a consideration therefor not less than the net asset value thereof has
been paid, the Acquiring Fund Shares to be issued and delivered to the
Selling Fund on behalf of the Selling Fund Shareholders as provided by this
Agreement are duly authorized and upon such delivery will be legally issued
and outstanding and fully paid and non-assessable (except that, under
Massachusetts law, shareholders of the Acquiring Fund could, under certain
circumstances, be held personally liable for obligations of the Acquiring
Fund), and no shareholder of the Acquiring Fund has any preemptive rights
in respect thereof; (d) the execution and delivery of this Agreement did
not, and the consummation of the transactions contemplated hereby will not,
result in a violation of the Evergreen Trust's Declaration of Trust or By-
Laws or any provision of any material agreement, indenture, instrument,
contract, lease or other undertaking (in each case known to such counsel)
to which the Acquiring Fund is a party or by which it or any of its
properties may be 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 Acquiring Fund is a party or by
which it is bound; (e) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental authority of
the United States or the Commonwealth of Massachusetts, is required for the
consummation by 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 laws; (f) only
insofar as they relate to the Acquiring Fund, the descriptions in the
Prospectus and Proxy Statement of statutes, legal and governmental
proceedings and material contracts, if any, are accurate and fairly present
the information required to be shown; (g) such counsel does not know of any
legal or governmental proceedings, only insofar as they relate to the
Acquiring Fund, existing on or before the effective date of the
Registration Statement or the Closing Date required to be described in the
Registration Statement or to be filed as exhibits to the Registration
Statement which are not described or filed as required; (h) the Acquiring
Fund is a separate investment series of a Massachusetts business trust
registered as an investment company under the 1940 Act and to such
counsel's best knowledge, such registration with the Commission as an
investment company under the 1940 Act is in full force and effect; and (i)
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 Acquiring Fund or any of its
properties or assets and the Acquiring Fund 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,
other than as previously disclosed in the Registration Statement. 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 Prospectus and 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 Prospectus and Proxy Statement (except to the
extent indicated in paragraph (f) of their above opinion), on the basis of
the foregoing (relying as to materiality to a large extent upon the
opinions of the Evergreen Trust's officers and other representatives of the
Acquiring Fund), no facts have come to their attention that lead them to
believe that the Prospectus and Proxy Statement as of its date, as of the
date of the Selling Fund Shareholders' meeting, and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein regarding the Acquiring Fund or
necessary, in the light of the circumstances under which they were made, to
make the statements therein regarding the Acquiring Fund not misleading.
Such opinion may state that such counsel does not express any opinion or
belief as to the financial statements or any financial or statistical
data, or as to the information relating to the Selling Fund, contained in
the Prospectus and Proxy Statement or the Registration Statement, and that
such opinion is solely for the benefit of the FFB Trust and the Selling
Fund. Such opinion shall contain such other assumptions and limitations as
shall be in the opinion of Xxxxxxxx & Worcester appropriate to render the
opinions expressed therein.
In this paragraph 6.2, references to Prospectus and Proxy Statement
include and relate to only the text of such Prospectus and Proxy Statement
and not to any exhibits or attachments thereto or to any documents
incorporated by reference therein.
6.3 The merger between First Union Corporation and First Fidelity
Corporation Bancorporation shall be completed prior to the Closing Date.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to complete the transactions
provided for herein shall be subject, at its election, to the performance
by the Selling Fund of all the obligations to be performed by it hereunder
on or before the Closing Date and, in addition thereto, the following
conditions:
7.1 All representations, covenants and warranties of the Selling Fund
contained in this Agreement shall be true and correct as of the date hereof
and as of the Closing Date with the same force and effect as if made on and
as of the Closing Date, and the Selling Fund shall have delivered to the
Acquiring Fund on the Closing Date a certificate executed in its name by
the FFB Trust's President or Vice President and its Treasurer or Assistant
Treasurer, in form and substance satisfactory to the Acquiring Fund and,
dated as of the Closing Date, to such effect and as to such other matters
as the Acquiring Fund shall reasonably request;
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement
of the Selling Fund's assets and liabilities, together with a list of the
Selling Fund's portfolio securities showing the tax costs of such
securities by lot and the holding periods of such securities, as of the
Closing Date, certified by the Treasurer of the FFB Trust; and
7.3 The Acquiring Fund shall have received on the Closing Date an opinion
of Xxxxx & XxXxxxxx, counsel to the Selling Fund, in a form satisfactory to
the Acquiring Fund covering the following points:
That (a) the Selling Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
power to own all of its properties and assets and to carry on its business
as presently conducted; (b) this Agreement has been duly authorized,
executed and delivered by the Selling Fund, and, assuming that the
Prospectus and Proxy Statement, and Registration Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and, assuming due authorization, execution and delivery of this
Agreement by the Acquiring Fund, is a valid and binding obligation of the
Selling Fund enforceable against the Selling Fund in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and to general equity principles; (c) the execution and delivery
of this Agreement did not, and the consummation of the transactions
contemplated hereby will not, result in a violation of the FFB Trust's
Declaration of Trust or By-laws, or any provision of any material
agreement, indenture, instrument, contract, lease or other undertaking (in
each case known to such counsel) to which the Selling Fund is a party or by
which it or any of its properties may be 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 Selling
Fund is a party or by which it is bound; (d) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority of the United States or the Commonwealth of
Massachusetts is required for the consummation by the Selling 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 laws; (e) only insofar as they relate to the Selling
Fund, the descriptions in the Prospectus and Proxy Statement of statutes,
legal and governmental proceedings and material contracts, if any, are
accurate and fairly present the information required to be shown; (f) such
counsel does not know of any legal or governmental proceedings, only
insofar as they relate to the Selling Fund existing on or before the date
of mailing of the Prospectus and Proxy Statement and the Closing Date,
required to be described in the Prospectus and Proxy Statement or to be
filed as an exhibit to the Registration Statement which are not described
or filed as required; (g) the Selling Fund is a separate investment series
of a Massachusetts business trust registered as an investment company under
the 1940 Act and to such counsel's best knowledge, such registration with
the Commission as an investment company under the 1940 Act is in full force
and effect; (h) 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 Selling Fund
or any of its respective properties or assets and the Selling Fund is
neither a party to nor subject to the provisions of any order, decree or
judgment of any court or governmental body, which materially and adversely
affects its business other than as previously disclosed in the Prospectus
and Proxy Statement; (i) assuming that a consideration therefor not less
than the net asset value thereof has been paid, and assuming that such
shares were issued in accordance with the terms of the Selling Fund's
registration statement, or any amendment thereto, in effect at the time of
such issuance, all issued and outstanding shares of the Selling Fund are
legally issued and fully paid and non-assessable (except that, under
Massachusetts law, Selling Fund Shareholders could, under certain
circumstances be held personally liable for obligations of the Selling
Fund). Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Selling Fund at
which the contents of the Prospectus and 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 Prospectus and Proxy Statement (except to the
extent indicated in paragraph (e) of their above opinion ), on the basis of
the foregoing (relying as to materiality to a large extent upon the
opinions of the FFB Trust's officers and other representatives of the
Selling Fund ), no facts have come to their attention that lead them to
believe that the Prospectus and Proxy Statement as of its date, as of the
date of the Selling Fund Shareholders' meeting, and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein regarding the Selling Fund or
necessary, in the light of the circumstances under which they were made, to
make the statements therein regarding the Selling Fund not misleading. Such
opinion may state that such counsel does not express any opinion or belief
as to the financial statements or any financial or statistical data, or as
to the information relating to the Acquiring Fund, contained in the
Prospectus and Proxy Statement or Registration Statement, and that such
opinion is solely for the benefit of the Evergreen Trust and the Acquiring
Fund. Such opinion shall contain such other assumptions and limitations as
shall be in the opinion of Xxxxx & XxXxxxxx appropriate to render the
opinions expressed therein and shall indicate, with respect to matters of
Massachusetts law, that as Xxxxx & XxXxxxxx are not admitted to the bar of
Massachusetts, such opinions are based either upon the review of published
statutes, case cases and rules and regulations of the Commonwealth of
Massachusetts or upon an opinion of Massachusetts counsel.
In this paragraph 7.3, references to Prospectus and Proxy Statement
include and relate to only the text of such Prospectus and Proxy Statement
and not to any exhibits or attachments thereto or to any documents
incorporated by reference therein.
7.4 The merger between First Union Corporation and First Fidelity
Bancorporation shall be completed prior to the Closing Date.
ARTICLE VIII
FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND
THE SELLING FUND
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Selling Fund or the Acquiring Fund, the
other party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the holders of the outstanding shares of
the Selling Fund in accordance with the provisions of the FFB Trust's
Declaration of Trust and By-Laws and certified copies of the resolutions
evidencing such approval shall have been delivered to the Acquiring Fund.
Notwithstanding anything herein to the contrary, neither the Acquiring Fund
nor the Selling Fund may waive the conditions set forth in this paragraph
8.1;
8.2 On the Closing Date, the Commission shall not have issued an
unfavorable report under Section 25(b) of the 1940 Act, nor instituted any
proceeding seeking to enjoin the consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940 Act and no
action, suit or other proceeding shall be threatened or pending before any
court or governmental agency in which it is sought to restrain or prohibit,
or obtain damages or other relief in connection with, this Agreement or the
transactions contemplated herein;
8.3 All required consents of other parties and all other consents, orders
and permits of Federal, state and local regulatory authorities (including
those of the Commission and of state Blue Sky securities authorities.
including any necessary "no-action" positions of and exemptive orders from
such Federal and state authorities) to permit consummation of the
transactions contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not involve a
risk of a material adverse effect on the assets or properties of the
Acquiring Fund or the Selling Fund, provided that either party hereto may
for itself waive any of such conditions;
8.4 The Registration Statement shall have become effective under the 1933
Act and no stop orders suspending the effectiveness thereof shall have been
issued and, to the best knowledge of the parties hereto, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 1933 Act;
8.5 The Selling Fund shall have declared a dividend or dividends which,
together with all previous such dividends, shall have the effect of
distributing to the Selling Fund Shareholders all of the Selling Fund's
investment company taxable income for all taxable years ending on or prior
to the Closing Date (computed without regard to any deduction for dividends
paid) and all of its net capital gain realized in all taxable years ending
on or prior to the Closing Date (after reduction for any capital loss
carryforward);
8.6 The parties shall have received a favorable opinion of Xxxxxxxx &
Worcester, addressed to the Acquiring Fund and the Selling Fund
substantially to the effect that for Federal income tax purposes:
(a) The transfer of substantially all of the Selling Fund assets in
exchange for the Acquiring Fund Shares and the assumption by the Acquiring
Fund of certain identified liabilities of the Selling Fund followed by the
distribution of the Acquiring Fund Shares to the Selling Fund in
dissolution and liquidation of the Selling Fund, will constitute a
"reorganization" within the meaning of Section 368(a)(1)(C) of the Code and
the Acquiring Fund and the Selling Fund will each be a "party to a
reorganization" within the meaning of Section 368(b) of the Code; (b) no
gain or loss will be recognized by the Acquiring Fund upon the receipt of
the assets of the Selling Fund solely in exchange for the Acquiring Fund
Shares and the assumption by the Acquiring Fund of certain identified
liabilities of the Selling Fund; (c) no gain or loss will be recognized by
the Selling Fund upon the transfer of the Selling Fund assets to the
Acquiring Fund in exchange for the Acquiring Fund Shares and the assumption
by the Acquiring Fund of certain identified liabilities of the Selling Fund
or upon the distribution ( whether actual or constructive ) of the
Acquiring Fund Shares to Selling Fund Shareholders in exchange for their
shares of the Selling Fund; (d) no gain or loss will be recognized by
Selling Fund Shareholders upon the exchange of their Selling Fund shares
for the Acquiring Fund Shares in liquidation of the Selling Fund; (e) the
aggregate tax basis for the Acquiring Fund Shares received by each Selling
Fund Shareholder pursuant to the Reorganization will be the same as the
aggregate tax basis of the Selling Fund shares held by such shareholder
immediately prior to the Reorganization, and the holding period of the
Acquiring Fund Shares to be received by each Selling Fund Shareholder will
include the period during which the Selling Fund shares exchanged therefor
were held by such shareholder (provided the Selling Fund shares were held
as capital assets on the date of the Reorganization); and (f) the tax basis
of the Selling Fund assets acquired by the Acquiring Fund will be the same
as the tax basis of such assets to the Selling Fund immediately prior to
the Reorganization, and the holding period of the assets of the Selling
Fund in the hands of the Acquiring Fund will include the period during
which those assets were held by the Selling Fund. Notwithstanding anything
herein to the contrary, neither the Acquiring Fund nor the Selling Fund may
waive the conditions set forth in this paragraph 8.6.
8.7 The Acquiring Fund shall have received from KPMG Peat Marwick LLP a
letter addressed to the Acquiring Fund, in form and substance satisfactory
to the Acquiring Fund, to the effect that (i) they are independent
certified public accountants with respect to the Selling Fund within the
meaning of the 1933 Act and the applicable published rules and regulations
thereunder; (ii) on the basis 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) consisting of a
reading of any unaudited pro forma financial statements included in the
Registration Statement and Prospectus and Proxy Statement, and inquiries of
appropriate officials of the FFB Trust responsible for financial and
accounting matters, nothing came to their attention which caused them to
believe that such unaudited pro forma financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder; or (iii) on the basis 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), the Capitalization
Table appearing in the Registration Statement and Prospectus and Proxy
Statement, has been obtained from and is consistent with the accounting
records of the Selling Fund; (iv) on the basis 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), the
pro forma financial statements which are included in the Registration
Statement and Prospectus and Proxy Statement, were prepared based on the
valuation of the Selling Fund's assets in accordance with the Evergreen
Trust's Declaration of Trust and the Acquiring Fund's then current
prospectus and statement of additional information pursuant to procedures
customarily utilized by the Acquiring Fund in valuing its own assets (such
procedures having been previously described to KPMG Peat Marwick LLP in
writing by the Acquiring Fund); and (v) on the basis 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) the
data utilized in the calculations of the projected expense ratio appearing
in the Registration Statement and Prospectus and Proxy Statement agree with
underlying accounting records of the Selling Fund or to written estimates
by Selling Fund's management and were found to be mathematically correct.
In addition, the Acquiring Fund shall have received from KPMG Peat
Marwick LLP a letter addressed to the Acquiring Fund dated on the Closing
Date, in form and substance satisfactory to the Acquiring Fund, to the
effect that on the basis of limited procedures agreed upon by the Acquiring
Fund (but not an examination in accordance with generally accepted auditing
standards) the calculation of net asset value per share of the Selling Fund
as of the Valuation Date was determined in accordance with generally
accepted accounting practices and the portfolio valuation practices of the
Acquiring Fund.
8.8 The Selling Fund shall have received from KPMG Peat Marwick LLP a
letter addressed to the Selling Fund, in form and substance satisfactory to
the Selling Fund, to the effect that (i) they are independent certified
public accountants with respect to the Acquiring Fund within the meaning of
the 1933 Act and the applicable published rules and regulations thereunder;
(ii) on the basis of limited procedures agreed upon by the Selling Fund and
described in such letter (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of any
unaudited pro forma financial statements included in the Registration
Statement and Prospectus and Proxy Statement, and inquiries of appropriate
officials of the Evergreen Trust responsible for financial and accounting
matters, nothing came to their attention which caused them to believe that
such unaudited pro forma financial statements do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder; (iii) on the
basis of limited procedures agreed upon by the Selling Fund and described
in such letter (but not an examination in accordance with generally
accepted auditing standards), the Capitalization Table appearing in the
Registration Statement and Prospectus and Proxy Statement, has been
obtained from and is consistent with the accounting records of the
Acquiring Fund; and (iv) on the basis of limited procedures agreed upon by
the Selling Fund (but not an examination in accordance with generally
accepted auditing standards) the data utilized in the calculations of the
projected expense ratio appearing in the Registration Statement and
Prospectus and Proxy Statement agree with underlying accounting records of
the Acquiring Fund or to written estimates by each Fund's management and
were found to be mathematically correct.
8.9 The Acquiring Fund and the Selling Fund shall also have received from
KPMG Peat Marwick LLP a letter addressed to the Acquiring Fund and the
Selling Fund, dated on the Closing Date in form and substance satisfactory
to the Funds, setting forth the Federal income tax implications relating to
capital loss carryforwards (if any) of the Selling Fund and the related
impact, if any, of the proposed transfer of all or substantially all of the
assets of the Selling Fund to the Acquiring Fund and the ultimate
dissolution of the Selling Fund, upon the shareholders of the Selling Fund.
ARTICLE IX
BROKERAGE FEES AND EXPENSES
9.1 The Acquiring Fund and the Selling Fund each represents and warrants to
the other that there are no brokers or finders entitled to receive any
payments in connection with the transactions provided for herein.
9.2 Except as otherwise provided for herein, all expenses of the
transactions contemplated by this Agreement incurred by the Selling Fund
and the Acquiring Fund will be borne by First Union National Bank of North
Carolina ("FUNB"). Such expenses include, without limitation, (i)
expenses incurred in connection with the entering into and the carrying out
of the provisions of this Agreement; (ii) expenses associated with the
preparation and filing of the Registration Statement under the 1933 Act
covering the Acquiring Fund Shares to be issued pursuant to the provisions
of this Agreement; (iii) registration or qualification fees and expenses of
preparing and filing such forms as are necessary under applicable state
securities laws to qualify the Acquiring Fund Shares to be issued in
connection herewith in each state in which the Selling Fund Shareholders
are resident as of the date of the mailing of the Prospectus and Proxy
Statement to such shareholders; (iv) postage; (v) printing; (vi) accounting
fees; (vii) legal fees; and (viii) solicitation cost of the transaction.
Not withstanding Notwithstanding the foregoing, the Acquiring Fund shall
pay its own Federal and state registration fees. In the event that the
merger of First Fidelity Bancorporation and First Union Corporation is not
completed, this Agreement shall terminate. In such event, all expenses of
the transactions contemplated by this Agreement incurred by the Acquiring
Fund will be borne by FUNB and all expenses of the transactions
contempleted contemplated by this Agreement incurred by the Selling Fund
will be borne by First Fidelity Bank, N.A.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Acquiring Fund and the Selling Fund agree that neither party has
made any representation, warranty or covenant not set forth herein and that
the this Agreement constitutes the entire agreement between the parties.
10.2 The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder.
ARTICLE XI
TERMINATION
11.1 In addition to the termination provisions set forth in paragraph 9.2,
this Agreement may be terminated by the mutual agreement of the Acquiring
Fund and the Selling Fund. In addition, either the Acquiring Fund or the
Selling Fund may at its option terminate this Agreement at or prior to the
Closing Date because:
(a) of a breach by the other of any representation, warranty or agreement
contained herein to be performed at or prior to the Closing Date, if not
cured within 30 days; or
(b) a condition herein expressed to be precedent to the obligations of the
terminating party has not been met and it reasonably appears that it will
not or cannot be met.
11.2 In the event of any such termination, in the absence of willful
default, there shall be no liability for damages on the part of either the
Acquiring Fund or the Selling Fund, the Evergreen Trust or the FFB Trust or
their respective Trustees or officers, to the other party or its, Trustees
or officers, but each shall bear the expenses incurred by it incidental to
the preparation and carrying out of this Agreement as provided in paragraph
9.2.
ARTICLE XII
AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of the
Selling Fund and the Acquiring Fund; provided, however, that following the
meeting of the Selling Fund Shareholders called by the FFB Trust pursuant
to paragraph 5.2 of this Agreement, no such amendment may have the effect
of changing the provisions for determining the number of the Acquiring Fund
Shares to be issued to the Selling Fund Shareholders under this Agreement
to the detriment of such shareholders without their further approval.
ARTICLE XIII
NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
prepaid telegraph, telecopy, overnight courier or certified mail addressed
to:
the Acquiring Fund
Evergreen Investment Trust
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxx, Esq.
or to the Selling Fund
FFB Funds Trust
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
ARTICLE XIV
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF
LIABILITY
14.1 The Article and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
14.3 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
14.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by
any party without the written consent of the other party. Nothing herein
expressed or implied is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties hereto and
their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
14.5 It is expressly agreed to that the obligations of the Selling Fund and
the Acquiring Fund hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents, or employees of the FFB Trust or
the Evergreen Trust, personally, but bind only the trust property of the
Selling Fund and the Acquiring Fund, as provided in the Declarations of
Trust of the FFB Trust and the Evergreen Trust. The execution and delivery
of this Agreement have been authorized by the Trustees of the FFB Trust on
behalf of the Selling Fund, and the Evergreen Trust on behalf of the
Acquiring Fund and signed by authorized officers of the FFB Trust and the
Evergreen Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officers shall be deemed
to have been made by any of them individually or to impose any liability on
any of them personally, but shall bind only the trust property of the FFB
Trust and the Evergreen Trust as provided in their Declarations of Trust.
IN WITNESS WHEREOF, the parties have duly executed and sealed this
Agreement, all as of the date first written above.
EVERGREEN INVESTMENT TRUST
on behalf of Evergreen Treasury Money Market Fund
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
(Seal)
FFB FUNDS TRUST
on behalf of FFB 100% U.S. Treasury Fund
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
Exhibit A
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 19th day of September, 1995, by and between Evergreen Investment
Trust, a Massachusetts business trust (the "Evergreen Trust"), with its
principal place of business at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000, with respect to its Evergreen Treasury Money Market series(the
"Acquiring Fund"), and FFB Funds Trust (the "FFB Trust"), a Massachusetts
business trust, with respect to its FFB U.S. Treasury Fund series, with its
principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Selling Fund").
This Agreement is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368 (a)(1)(C) of the United
States Internal Revenue Code of 1986 (the "Code"). The reorganization
(the "Reorganization") will consist of the transfer of substantially all of
the assets of the Selling Fund in exchange solely for Class A shares of
beneficial interest, without par value, of the Acquiring Fund (the
"Acquiring Fund Shares") and the assumption by the Acquiring Fund of
certain stated liabilities of the Selling Fund and the distribution, after
the Closing Date hereinafter referred to, of the Acquiring Fund Shares to
the shareholders of the Selling Fund in liquidation of the Selling Fund as
provided herein, all upon the terms and conditions hereinafter set forth in
this Agreement.
WHEREAS, the Selling Fund and the Acquiring Fund are separate investment
series of open-end, registered investment companies of the management type
and the Selling Fund owns securities which generally are assets of the
character in which the Acquiring Fund is permitted to invest;
WHEREAS, both Funds are authorized to issue their shares of beneficial
interest;
WHEREAS, the Trustees of the Evergreen Trust have determined that the
exchange of substantially all of the assets of the Selling Fund for
Acquiring Fund Shares and the assumption of certain stated liabilities by
the Acquiring Fund on the terms and conditions hereinafter set forth is are
in the best interests of the Acquiring Fund shareholders and that the
interests of the existing shareholders of the Acquiring Fund will not be
diluted as a result of the transactions contemplated herein;
WHEREAS, the Trustees of the FFB Trust have determined that the Selling
Fund should exchange substantially all of its assets and certain of its
liabilities for Acquiring Fund Shares and that the interests of the
existing shareholders of the Selling Fund will not be diluted as a result
of the transactions contemplated herein;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE I
TRANSFER OF ASSETS OF THE SELLING FUND IN EXCHANGE FOR THE ACQUIRING
FUND SHARES AND ASSUMPTION OF SELLING FUND LIABILITIES AND LIQUIDATION OF
THE SELLING FUND
1.1 The Exchange. Subject to the terms and conditions herein set forth and
on the basis of the representations and warranties contained herein, the
Selling Fund agrees to transfer substantially all of the Selling Fund's
assets as set forth in paragraph 1.2 to the Acquiring Fund, and the
Acquiring Fund agrees in exchange therefor (i) to deliver to the Selling
Fund the number of Acquiring Fund Shares, including fractional Acquiring
Fund Shares, determined by multiplying the shares outstanding of each class
of the Selling Fund by the ratio computed by dividing the net asset value
per share of each such class of the Selling Fund by the net asset value per
share of the Acquiring Fund Shares computed in the manner and as of the
time and date set forth in paragraph 2.2 and (ii) to assume certain
liabilities of the Selling Fund, as set forth in paragraph 1.3. Such
transactions shall take place at the closing provided for in paragraph 3.1
(the "Closing Date").
1.2 Assets to be Acquired. The assets of the Selling Fund to be acquired by
the Acquiring Fund shall consist of all property, including without
limitation all cash, securities, commodities and futures interests and
dividends or interest receivable, which are owned by the Selling Fund and
any deferred or prepaid expenses shown as an asset on the books of the
Selling Fund on the Closing Date. The Selling Fund has provided the
Acquiring Fund with its most recent audited financial statements which
contain a list of all of Selling Fund's assets as of the date thereof. The
Selling Fund hereby represents that as of the date of the execution of this
Agreement there have been no changes in its financial position as
reflected in said financial statements other than those occurring in the
ordinary course of its business in connection with the purchase and sale of
securities and the payment of its normal operating expenses. The Selling
Fund reserves the right to sell any of such securities but will not,
without the prior written approval of the Acquiring Fund, acquire any
additional securities other than securities of the type in which the
Acquiring Fund is permitted to invest. The Acquiring Fund will, within a
reasonable time prior to the Closing Date, furnish the Selling Fund with a
statement of the Acquiring Fund's investment objectives, policies and
restrictions and a list of the securities, if any, on the Selling Fund's
list referred to in the second sentence of this paragraph which do not
conform to the Acquiring Fund's investment objectives, policies, and
restrictions. In the event that the Selling Fund holds any investments
which the Acquiring Fund may not hold, the Selling Fund will dispose of
such securities prior to the Closing Date. In addition, if it is determined
that the Selling Fund and the Acquiring Fund portfolios, when aggregated,
would contain investments exceeding certain percentage limitations imposed
upon the Acquiring Fund with respect to such investments, the Selling Fund
if requested by the Acquiring Fund will dispose of a sufficient amount of
such investments as may be necessary to avoid violating such limitations as
of the Closing Date.
1.3 Liabilities to be Assumed. The Selling Fund will endeavor to discharge
all of its known liabilities and obligations prior to the Closing Date.
The Acquiring Fund shall assume only those liabilities, expenses, costs,
charges and reserves reflected on a Statement of Assets and Liabilities of
the Selling Fund prepared by Xxxxxx Xxxx Incorporated, the administrator of
the Selling Fund, as of the Valuation Date (as defined in paragraph 2.1),
in accordance with generally accepted accounting principles consistently
applied from the prior audited period. The Acquiring Fund shall assume
only those liabilities of the Selling Fund reflected in such Statement of
Assets and Liabilities and shall not assume any other liabilities, whether
absolute or contingent, known or unknown, accrued or unaccrued, all of
which shall remain the obligation of the Selling Fund.
1.4 Liquidation and Distribution. As soon after the Closing Date as is
conveniently practicable (the "Liquidation Date"), (a) the Selling Fund
will liquidate and distribute pro rata to the Selling Fund's shareholders
of record, determined as of the close of business on the Closing Date (the
"Selling Fund Shareholders"), the Acquiring Fund Shares received by the
Selling Fund pursuant to paragraph 1.1. and (b) the Selling Fund will
thereupon proceed to dissolve as set forth in paragraph 1.8 below. Such
liquidation and distribution will be accomplished by the transfer of the
Acquiring Fund Shares then credited to the account of the Selling Fund on
the books of the Acquiring Fund, to open accounts on the share records of
the Acquiring Fund in the names of the Selling Fund Shareholders and
representing the respective pro rata number of the Acquiring Fund Shares
due such shareholders. All issued and outstanding shares of the Selling
Fund will simultaneously be canceled on the books of the Selling Fund. The
Acquiring Fund shall not issue certificates representing the Acquiring Fund
Shares in connection with such exchange.
1.5 Ownership of Shares. Ownership of Acquiring Fund Shares will be shown
on the books of the Acquiring Fund's transfer agent. Shares of the
Acquiring Fund will be issued in the manner described in the combined
Prospectus and Proxy Statement on Form N-14 to be distributed to
shareholders of the Selling Fund as described in Section 5 paragraph 5.7.
1.6 Transfer Taxes. Any transfer taxes payable upon issuance of the
Acquiring Fund Shares in a name other than the registered holder of the
Selling Fund shares on the books of the Selling Fund as of that time shall,
as a condition of such issuance and transfer, be paid by the person to whom
such Acquiring Fund Shares are to be issued and transferred.
1.7 Reporting Responsibility. Any reporting responsibility of the Selling
Fund is and shall remain the responsibility of the Selling Fund up to and
including the Closing Date and such later date on which the Selling Fund is
terminated.
1.8 Termination. The Selling Fund shall be terminated promptly following
the Closing Date and the making of all distributions pursuant to paragraph
1.4.
ARTICLE II
VALUATION
2.1 Valuation of Assets. The value of the Selling Fund's assets to be
acquired by the Acquiring Fund hereunder shall be the value of such assets
computed as of the close of business on the New York Stock Exchange on the
Closing Date (such time and date being hereinafter called the "Valuation
Date"), using the valuation procedures set forth in the Evergreen Trust's
Declaration of Trust and the Acquiring Fund's then current prospectus and
statement of additional information or such other valuation procedures as
shall be mutually agreed upon by the parties.
2.2 Valuation of Shares. The net asset value per share of the Acquiring
Fund Shares shall be the net asset value per share computed as of the close
of business on the New York Stock Exchange on the Valuation Date, using the
valuation procedures set forth in the Evergreen Trust's Declaration of
Trust and the Acquiring Fund's then current prospectus and statement of
additional information.
2.3 Shares to be Issued. The number of the Acquiring Fund Shares of each
class to be issued (including fractional shares, if any) in exchange for
the Selling Fund's assets shall be determined by multiplying the shares
outstanding of each class of the Selling Fund by the ratio computed by
dividing the net asset value per share of the Selling Fund attributable to
each of its classes by the net asset value per share of the respective
classes of the Acquiring Fund determined in accordance with paragraph 2.2.
2.4 Determination of Value. All computations of value shall be made by
State Street Bank and Trust Company in accordance with its regular practice
in pricing the shares and assets of the Acquiring Fund.
ARTICLE III
CLOSING AND CLOSING DATE
3.1 Closing Date. The Closing (the "Closing") shall take place on January
12 19, 1996 or such other date as the parties may agree to in writing (the
"Closing Date"). All acts taking place at the Closing shall be deemed to
take place simultaneously as of the close of business on the Closing Date
unless otherwise provided. The Closing shall be held as of 9:00 o'clock
a.m. at the offices of Evergreen Asset Management Corp., 0000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, or at such other time and/or place as
the parties may agree.
3.2 Custodian's Certificate. First Fidelity Bank, N.A., as custodian for
the Selling Fund (the "Custodian"), shall deliver at the Closing a
certificate of an authorized officer stating that: (a) the Selling Fund's
portfolio securities, cash, and any other assets shall have been delivered
in proper form to the Acquiring Fund on the Closing Date and (b) all
necessary taxes including all applicable Federal and state stock transfer
stamps, if any, shall have been paid, or provision for payment shall have
been made, in conjunction with the delivery of portfolio securities by the
Selling Fund.
3.3 Effect of Suspension in Trading. In the event that on the Valuation
Date (a) the New York Stock Exchange or another primary trading market for
portfolio securities of the Acquiring Fund or the Selling Fund shall be
closed to trading or trading thereon shall be restricted, or (b) trading or
the reporting of trading on said Exchange or elsewhere shall be disrupted
so that accurate appraisal of the value of the net assets of the Acquiring
Fund or the Selling Fund is impracticable, the Closing Date shall be
postponed until the first business day after the day when trading shall
have been fully resumed and reporting shall have been restored.
3.4 Transfer Agent's Certificate. First Fidelity Bank, N.A., as transfer
agent for the Selling Fund shall deliver at the Closing a certificate of an
authorized officer stating that its records contain the names and addresses
of the Selling Fund Shareholders and the number and percentage ownership of
outstanding shares owned by each such shareholder immediately prior to the
Closing. The Acquiring Fund shall issue and deliver or cause its transfer
agent to issue and deliver a confirmation evidencing the Acquiring Fund
Shares to be credited on the Closing Date to the Secretary of the FFB Trust
, or provide evidence satisfactory to the Selling Fund that such Acquiring
Fund Shares have been credited to the Selling Fund's account on the books
of the Acquiring Fund. At the Closing each party shall deliver to the other
such bills of sale, checks, assignments, share certificates, if any,
receipts and other documents as such other party or its counsel may
reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations of the Selling Fund. The Selling Fund represents and
warrants to the Acquiring Fund as follows:
(a) The Selling Fund is a separate investment series of a Massachusetts
business trust duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts;
(b) The Selling Fund is a separate investment series of a registered
investment company classified as a management company of the open-end type
and its registration with the Securities and Exchange Commission (the
"Commission") as an investment company under the Investment Company Act of
1940, as amended (the "1940 Act") is in full force and effect;
(c) The current prospectus and statement of additional information of the
Selling Fund conform in all material respects to the applicable
requirements of the Securities Act of 1933, as amended (the "1933 Act") and
the 1940 Act and the rules and regulations of the Commission thereunder and
do not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not materially misleading;
(d) The Selling Fund is not, and the execution, delivery and performance of
this Agreement (subject to shareholder approval) will not, result in a
violation of any provision of the FFB Trust's Declaration of Trust or
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which the Selling Fund is a party or by which it is
bound;
(e) The Selling Fund has no material contracts or other commitments (other
than this Agreement) which will be terminated with liability to it prior to
the Closing Date;
(f) Except as otherwise disclosed in writing to and accepted by the
Acquiring Fund, no litigation, administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Selling Fund or any of its properties or
assets which, if adversely determined, would materially and adversely
affect its financial condition, the conduct of its business or the ability
of the Selling Fund to carry out the transactions contemplated by this
Agreement. The Selling 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;
(g) The financial statements of the Selling Fund at February 28, 1995 have
been audited by KPMG Peat Marwick LLP, certified public accountants, and
are in accordance with generally accepted accounting principles
consistently applied, and such statements (copies of which have been
furnished to the Acquiring Fund) fairly reflect the financial condition of
the Selling Fund as of such date, and there are no known contingent
liabilities of the Selling Fund as of such date not disclosed therein;
(h) Since February 28, 1995 there has not been any material adverse change
in the Selling Fund's financial condition, assets, liabilities or business
other than changes occurring in the ordinary course of business, or any
incurrence by the Selling Fund of indebtedness maturing more than one year
from the date such indebtedness was incurred, except as otherwise disclosed
to and accepted by the Acquiring Fund. For the purposes of this
subparagraph (h), a decline in the net asset value of the Selling Fund
shall not constitute a material adverse change;
(i) At the Closing Date, all Federal and other tax returns and reports of
the Selling Fund required by law to have been filed by such dates shall
have been filed, and all Federal and other taxes shown due on said returns
and reports shall have been paid, or provision shall have been made for the
payment thereof and to the best of the Selling Fund's knowledge no such
return is currently under audit and no assessment has been asserted with
respect to such returns;
(j) For each fiscal year of its operation, the Selling Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as
a regulated investment company and has distributed in each such year all
net investment income and realized capital gains;
(k) All issued and outstanding shares of the Selling Fund are, and at the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by the Selling Fund (except that, under Massachusetts
law, Selling Fund Shareholders could, under certain circumstances be held
personally liable for obligations of the Selling Fund). All of the issued
and outstanding shares of the Selling Fund will, at the time of the Closing
Date, be held by the persons and in the amounts set forth in the records of
the transfer agent as provided in paragraph 3.4. The Selling Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any of the Selling Fund shares, nor is there outstanding any
security convertible into any of the Selling Fund shares;
(l) At the Closing Date, the Selling Fund will have good and marketable
title to the Selling Fund's assets to be transferred to the Acquiring Fund
pursuant to paragraph 1.2 and full right, power, and authority to sell,
assign, transfer and deliver such assets hereunder, and upon delivery and
payment for such assets, the Acquiring Fund will acquire good and
marketable title thereto, subject to no restrictions on the full transfer
thereof, including such restrictions as might arise under the 1933 Act,
other than as disclosed to the Acquiring Fund and accepted by the Acquiring
Fund;
(m) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Selling Fund
and, subject to approval by the Selling Fund Shareholders, this Agreement
constitutes a valid and binding obligation of the Selling Fund, enforceable
in accordance with its terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights and to general equity principles;
(n) The information to be furnished by the Selling Fund for use in
no-action letters, applications for orders, registration statements, proxy
materials and other documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete in all
material respects and shall comply in all material respects with Federal
securities and other laws and regulations thereunder applicable thereto;
(o) The proxy statement of the Selling Fund to be included in the
Registration Statement referred to in paragraph 5.7 (other than information
therein that relates to the Acquiring Fund) will, on the effective date of
the Registration Statement and on the Closing Date, not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which such statements were made, not misleading.
4.2 Representations of the Acquiring Fund. The Acquiring Fund represents
and warrants to the Selling Fund as follows:
(a) The Acquiring Fund is a separate investment series of a Massachusetts
business trust duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts.;
(b) The Acquiring Fund is a separate investment series of a Massachusetts
business trust that is registered as an investment company classified as a
management company of the open-end type and its registration with the
Commission as an investment company under the 1940 Act is in full force and
effect;
(c) The current prospectus and statement of additional information of the
Acquiring Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations
of the Commission thereunder and do not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) The Acquiring Fund is not, and the execution, delivery and performance
of this Agreement will not, result in a violation of Evergreen Trust's
Declaration of Trust or By-Laws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Acquiring Fund is a party
or by which it is bound;
(e) Except as otherwise disclosed in writing to the Selling Fund and
accepted by the Selling Fund, no litigation, administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Acquiring Fund or any of
its properties or assets which, if adversely determined, would materially
and adversely affect its financial condition and the conduct of its
business or the ability of the Acquiring Fund to carry out the transactions
contemplated by this Agreement. The Acquiring Fund knows of no facts which
might form the basis for the institution of such proceedings and is not a
party to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions contemplated herein;
(f) The financial statements of the Acquiring Fund at December 31, 1994,
have been audited by KPMG Peat Marwick LLP, certified public accountants,
and are in accordance with generally accepted accounting principles
consistently applied, and such statements (copies of which have been
furnished to the Selling Fund) fairly reflect the financial condition of
the Acquiring Fund as of such date, and there are no known contingent
liabilities affecting the Acquiring Fund as of such date not disclosed
therein;
(g) Since December 31, 1994 there has not been any material adverse change
in the Acquiring Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of business,
or any incurrence by the Acquiring Fund of indebtedness maturing more than
one year from the date such indebtedness was incurred, except as otherwise
disclosed to and accepted by the Acquiring Fund. For the purposes of this
subparagraph (g), a decline in the net asset value of the Acquiring Fund
shall not constitute a material adverse change;
(h) At the Closing Date, all Federal and other tax returns and reports of
the Acquiring Fund required by law then to be filed by such dates shall
have been filed, and all Federal and other taxes shown due on said returns
and reports shall have been paid or provision shall have been made for the
payment thereof and to the best of the Acquiring Fund's knowledge, no such
return is currently under audit and no assessment has been asserted with
respect to such returns;
(i) For each fiscal year of its operation the Acquiring Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as
a regulated investment company and has distributed in each such year all
net investment income and realized capital gains;
(j) All issued and outstanding Acquiring Fund Shares are, and at the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable (except that, under Massachusetts law, shareholders of
the Acquiring Fund could, under certain circumstances, be held personally
liable for obligations of the Acquiring Fund). The Acquiring Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any Acquiring Fund Shares, nor is there outstanding any security
convertible into any Acquiring Fund Shares;
(k) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Acquiring Fund,
and this Agreement constitutes a valid and binding obligation of the
Acquiring Fund enforceable in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights and to general equity
principles;
(l) The Acquiring Fund Shares to be issued and delivered to the Selling
Fund, for the account of the Selling Fund Shareholders, pursuant to the
terms of this Agreement will at the Closing Date have been duly authorized
and, when so issued and delivered, will be duly and validly issued
Acquiring Fund Shares, and will be fully paid and non-assessable (except
that, under Massachusetts law, shareholders of the Acquiring Fund could,
under certain circumstances, be held personally liable for obligations of
the Acquiring Fund);
(m) The information to be furnished by the Acquiring Fund for use in no-
action letters, applications for orders, registration statements, proxy
materials and other documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete in all
material respects and shall comply in all material respects with Federal
securities and other laws and regulations applicable thereto;
(n) The Prospectus and Proxy Statement to be included in the Registration
Statement (only insofar as it relates to the Acquiring Fund) will, on the
effective date of the Registration Statement and on the Closing Date, not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements were
made, not misleading; and
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and
such of the state Blue Sky or securities laws as it may deem appropriate in
order to continue its operations after the Closing Date.
ARTICLE V
COVENANTS OF THE ACQUIRING FUND AND THE SELLING FUND
5. 1 Operation in Ordinary Course. The Acquiring Fund and the Selling Fund
each will operate its business in the ordinary course between the date
hereof and the Closing Date, it being understood that such ordinary course
of business will include customary dividends and distributions.
5.2 Approval of Shareholders. The FFB Trust will call a meeting of the
Selling Fund Shareholders to consider and act upon this Agreement and to
take all other action necessary to obtain approval of the transactions
contemplated herein.
5.3 Investment Representation. The Selling Fund covenants that the
Acquiring Fund Shares to be issued hereunder are not being acquired for the
purpose of making any distribution thereof other than in accordance with
the terms of this Agreement.
5.4 Additional Information. The Selling Fund will assist the Acquiring
Fund in obtaining such information as the Acquiring Fund reasonably
requests concerning the beneficial ownership of the Selling Fund shares.
5.5 Further Action. Subject to the provisions of this Agreement, the
Acquiring Fund and the Selling Fund will each take, or cause to be taken,
all action, and do or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated by this Agreement, including any actions required to be taken
after the Closing Date.
5.6 Statement of Earnings and Profits. As promptly as practicable, but in
any case within sixty days after the Closing Date, the Selling Fund shall
furnish the Acquiring Fund, in such form as is reasonably satisfactory to
the Acquiring Fund, a statement of the earnings and profits of the Selling
Fund for Federal income tax purposes which will be carried over by the
Acquiring Fund as a result of Section 381 of the Code, and which will be
certified by the FFB Trust's President, its Treasurer and its independent
auditors.
5.7 Preparation of Form N-14 Registration Statement. The Selling Fund will
provide the Acquiring Fund with information reasonably necessary for the
preparation of a prospectus which will include the proxy statement,
referred to in paragraph 4.1(o) (the "Prospectus and Proxy Statement"), all
to be included in a Registration Statement on Form N-14 of the Acquiring
Fund (the "Registration Statement"), in compliance with the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the 1940
Act in connection with the meeting of the Selling Fund Shareholders to
consider approval of this Agreement and the transactions contemplated
herein.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND
The obligations of the Selling Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance
by the Acquiring Fund of all the obligations to be performed by it
hereunder on or before the Closing Date, and, in addition thereto, the
following further conditions:
6.1 All representations, covenants and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct as of the date hereof
and as of the Closing Date with the same force and effect as if made on and
as of the Closing Date, and the Acquiring Fund shall have delivered to the
Selling Fund a certificate executed in its name by the Evergreen Trust's
President or Vice President and its Treasurer or Assistant Treasurer, in
form and substance reasonably satisfactory to the Selling Fund and dated as
of the Closing Date, to such effect and as to such other matters as the
Selling Fund shall reasonably request; and
6.2 The Selling Fund shall have received on the Closing Date an opinion
from Xxxxxxxx & Worcester, counsel to the Acquiring Fund, dated as of the
Closing Date, in a form reasonably satisfactory to the Selling Fund,
covering the following points:
That (a) the Acquiring Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
power to own all of its properties and assets and to carry on its business
as presently conducted; (b) this Agreement has been duly authorized,
executed and delivered by the Acquiring Fund, and, assuming that the
Prospectus and Proxy Statement, and Registration Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and, assuming due authorization, execution and delivery of this
Agreement by the Selling Fund, is a valid and binding obligation of the
Acquiring Fund enforceable against the Acquiring Fund in accordance with
its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and to general equity principles; (c) assuming
that a consideration therefor not less than the net asset value thereof has
been paid, the Acquiring Fund Shares to be issued and delivered to the
Selling Fund on behalf of the Selling Fund Shareholders as provided by this
Agreement are duly authorized and upon such delivery will be legally issued
and outstanding and fully paid and non-assessable (except that, under
Massachusetts law, shareholders of the Acquiring Fund could, under certain
circumstances, be held personally liable for obligations of the Acquiring
Fund), and no shareholder of the Acquiring Fund has any preemptive rights
in respect thereof; (d) the execution and delivery of this Agreement did
not, and the consummation of the transactions contemplated hereby will not,
result in a violation of the Evergreen Trust's Declaration of Trust or By-
Laws or any provision of any material agreement, indenture, instrument,
contract, lease or other undertaking (in each case known to such counsel)
to which the Acquiring Fund is a party or by which it or any of its
properties may be 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 Acquiring Fund is a party or by
which it is bound; (e) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental authority of
the United States or the Commonwealth of Massachusetts, is required for the
consummation by 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 laws; (f) only
insofar as they relate to the Acquiring Fund, the descriptions in the
Prospectus and Proxy Statement of statutes, legal and governmental
proceedings and material contracts, if any, are accurate and fairly present
the information required to be shown; (g) such counsel does not know of any
legal or governmental proceedings, only insofar as they relate to the
Acquiring Fund, existing on or before the effective date of the
Registration Statement or the Closing Date required to be described in the
Registration Statement or to be filed as exhibits to the Registration
Statement which are not described or filed as required; (h) the Acquiring
Fund is a separate investment series of a Massachusetts business trust
registered as an investment company under the 1940 Act and to such
counsel's best knowledge, such registration with the Commission as an
investment company under the 1940 Act is in full force and effect; and (i)
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 Acquiring Fund or any of its
properties or assets and the Acquiring Fund 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,
other than as previously disclosed in the Registration Statement. 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 Prospectus and 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 Prospectus and Proxy Statement (except to the
extent indicated in paragraph (f) of their above opinion), on the basis of
the foregoing (relying as to materiality to a large extent upon the
opinions of the Evergreen Trust's officers and other representatives of the
Acquiring Fund), no facts have come to their attention that lead them to
believe that the Prospectus and Proxy Statement as of its date, as of the
date of the Selling Fund Shareholders' meeting, and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein regarding the Acquiring Fund or
necessary, in the light of the circumstances under which they were made, to
make the statements therein regarding the Acquiring Fund not misleading.
Such opinion may state that such counsel does not express any opinion or
belief as to the financial statements or any financial or statistical
data, or as to the information relating to the Selling Fund, contained in
the Prospectus and Proxy Statement or the Registration Statement, and that
such opinion is solely for the benefit of the FFB Trust and the Selling
Fund. Such opinion shall contain such other assumptions and limitations as
shall be in the opinion of Xxxxxxxx & Worcester appropriate to render the
opinions expressed therein.
In this paragraph 6.2, references to Prospectus and Proxy Statement
include and relate to only the text of such Prospectus and Proxy Statement
and not to any exhibits or attachments thereto or to any documents
incorporated by reference therein.
6.3 The merger between First Union Corporation and First Fidelity
Corporation Bancorporation shall be completed prior to the Closing Date.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to complete the transactions
provided for herein shall be subject, at its election, to the performance
by the Selling Fund of all the obligations to be performed by it hereunder
on or before the Closing Date and, in addition thereto, the following
conditions:
7.1 All representations, covenants and warranties of the Selling Fund
contained in this Agreement shall be true and correct as of the date hereof
and as of the Closing Date with the same force and effect as if made on and
as of the Closing Date, and the Selling Fund shall have delivered to the
Acquiring Fund on the Closing Date a certificate executed in its name by
the FFB Trust's President or Vice President and its Treasurer or Assistant
Treasurer, in form and substance satisfactory to the Acquiring Fund and,
dated as of the Closing Date, to such effect and as to such other matters
as the Acquiring Fund shall reasonably request;
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement
of the Selling Fund's assets and liabilities, together with a list of the
Selling Fund's portfolio securities showing the tax costs of such
securities by lot and the holding periods of such securities, as of the
Closing Date, certified by the Treasurer of the FFB Trust; and
7.3 The Acquiring Fund shall have received on the Closing Date an opinion
of Xxxxx & XxXxxxxx, counsel to the Selling Fund, in a form satisfactory to
the Acquiring Fund covering the following points:
That (a) the Selling Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
power to own all of its properties and assets and to carry on its business
as presently conducted; (b) this Agreement has been duly authorized,
executed and delivered by the Selling Fund, and, assuming that the
Prospectus and Proxy Statement, and Registration Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and, assuming due authorization, execution and delivery of this
Agreement by the Acquiring Fund, is a valid and binding obligation of the
Selling Fund enforceable against the Selling Fund in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and to general equity principles; (c) the execution and delivery
of this Agreement did not, and the consummation of the transactions
contemplated hereby will not, result in a violation of the FFB Trust's
Declaration of Trust or By-laws, or any provision of any material
agreement, indenture, instrument, contract, lease or other undertaking (in
each case known to such counsel) to which the Selling Fund is a party or by
which it or any of its properties may be 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 Selling
Fund is a party or by which it is bound; (d) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority of the United States or the Commonwealth of
Massachusetts is required for the consummation by the Selling 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 laws; (e) only insofar as they relate to the Selling
Fund, the descriptions in the Prospectus and Proxy Statement of statutes,
legal and governmental proceedings and material contracts, if any, are
accurate and fairly present the information required to be shown; (f) such
counsel does not know of any legal or governmental proceedings, only
insofar as they relate to the Selling Fund existing on or before the date
of mailing of the Prospectus and Proxy Statement and the Closing Date,
required to be described in the Prospectus and Proxy Statement or to be
filed as an exhibit to the Registration Statement which are not described
or filed as required; (g) the Selling Fund is a separate investment series
of a Massachusetts business trust registered as an investment company under
the 1940 Act and to such counsel's best knowledge, such registration with
the Commission as an investment company under the 1940 Act is in full force
and effect; (h) 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 Selling Fund
or any of its respective properties or assets and the Selling Fund is
neither a party to nor subject to the provisions of any order, decree or
judgment of any court or governmental body, which materially and adversely
affects its business other than as previously disclosed in the Prospectus
and Proxy Statement; (i) assuming that a consideration therefor not less
than the net asset value thereof has been paid, and assuming that such
shares were issued in accordance with the terms of the Selling Fund's
registration statement, or any amendment thereto, in effect at the time of
such issuance, all issued and outstanding shares of the Selling Fund are
legally issued and fully paid and non-assessable (except that, under
Massachusetts law, Selling Fund Shareholders could, under certain
circumstances be held personally liable for obligations of the Selling
Fund). Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Selling Fund at
which the contents of the Prospectus and 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 Prospectus and Proxy Statement (except to the
extent indicated in paragraph (e) of their above opinion), on the basis of
the foregoing (relying as to materiality to a large extent upon the
opinions of the FFB Trust's officers and other representatives of the
Selling Fund), no facts have come to their attention that lead them to
believe that the Prospectus and Proxy Statement as of its date, as of the
date of the Selling Fund Shareholders' meeting, and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein regarding the Selling Fund or
necessary, in the light of the circumstances under which they were made, to
make the statements therein regarding the Selling Fund not misleading. Such
opinion may state that such counsel does not express any opinion or belief
as to the financial statements or any financial or statistical data, or as
to the information relating to the Acquiring Fund, contained in the
Prospectus and Proxy Statement or Registration Statement, and that such
opinion is solely for the benefit of the Evergreen Trust and the Acquiring
Fund. Such opinion shall contain such other assumptions and limitations as
shall be in the opinion of Xxxxx & XxXxxxxx appropriate to render the
opinions expressed therein and shall indicate, with respect to matters of
Massachusetts law, that as Xxxxx & XxXxxxxx are not admitted to the bar of
Massachusetts, such opinions are based either upon the review of published
statutes, case cases and rules and regulations of the Commonwealth of
Massachusetts or upon an opinion of Massachusetts counsel.
In this paragraph 7.3, references to Prospectus and Proxy Statement
include and relate to only the text of such Prospectus and Proxy Statement
and not to any exhibits or attachments thereto or to any documents
incorporated by reference therein.
7.4 The merger between First Union Corporation and First Fidelity
Bancorporation shall be completed prior to the Closing Date.
ARTICLE VIII
FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND
THE SELLING FUND
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Selling Fund or the Acquiring Fund, the
other party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the holders of the outstanding shares of
the Selling Fund in accordance with the provisions of the FFB Trust's
Declaration of Trust and By-Laws and certified copies of the resolutions
evidencing such approval shall have been delivered to the Acquiring Fund.
Notwithstanding anything herein to the contrary, neither the Acquiring Fund
nor the Selling Fund may waive the conditions set forth in this paragraph
8.1;
8.2 On the Closing Date, the Commission shall not have issued an
unfavorable report under Section 25(b) of the 1940 Act, nor instituted any
proceeding seeking to enjoin the consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940 Act and no
action, suit or other proceeding shall be threatened or pending before any
court or governmental agency in which it is sought to restrain or prohibit,
or obtain damages or other relief in connection with, this Agreement or the
transactions contemplated herein;
8.3 All required consents of other parties and all other consents, orders
and permits of Federal, state and local regulatory authorities (including
those of the Commission and of state Blue Sky securities authorities.
including any necessary "no-action" positions of and exemptive orders from
such Federal and state authorities) to permit consummation of the
transactions contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not involve a
risk of a material adverse effect on the assets or properties of the
Acquiring Fund or the Selling Fund, provided that either party hereto may
for itself waive any of such conditions;
8.4 The Registration Statement shall have become effective under the 1933
Act and no stop orders suspending the effectiveness thereof shall have been
issued and, to the best knowledge of the parties hereto, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 1933 Act;
8.5 The Selling Fund shall have declared a dividend or dividends which,
together with all previous such dividends, shall have the effect of
distributing to the Selling Fund Shareholders all of the Selling Fund's
investment company taxable income for all taxable years ending on or prior
to the Closing Date (computed without regard to any deduction for dividends
paid) and all of its net capital gain realized in all taxable years ending
on or prior to the Closing Date (after reduction for any capital loss
carryforward);
8.6 The parties shall have received a favorable opinion of Xxxxxxxx &
Worcester, addressed to the Acquiring Fund and the Selling Fund
substantially to the effect that for Federal income tax purposes:
(a) The transfer of substantially all of the Selling Fund assets in
exchange for the Acquiring Fund Shares and the assumption by the Acquiring
Fund of certain identified liabilities of the Selling Fund followed by the
distribution of the Acquiring Fund Shares to the Selling Fund in
dissolution and liquidation of the Selling Fund, will constitute a
"reorganization" within the meaning of Section 368(a)(1)(C) of the Code and
the Acquiring Fund and the Selling Fund will each be a "party to a
reorganization" within the meaning of Section 368(b) of the Code; (b) no
gain or loss will be recognized by the Acquiring Fund upon the receipt of
the assets of the Selling Fund solely in exchange for the Acquiring Fund
Shares and the assumption by the Acquiring Fund of certain identified
liabilities of the Selling Fund; (c) no gain or loss will be recognized by
the Selling Fund upon the transfer of the Selling Fund assets to the
Acquiring Fund in exchange for the Acquiring Fund Shares and the assumption
by the Acquiring Fund of certain identified liabilities of the Selling Fund
or upon the distribution ( whether actual or constructive ) of the
Acquiring Fund Shares to Selling Fund Shareholders in exchange for their
shares of the Selling Fund; (d) no gain or loss will be recognized by
Selling Fund Shareholders upon the exchange of their Selling Fund shares
for the Acquiring Fund Shares in liquidation of the Selling Fund; (e) the
aggregate tax basis for the Acquiring Fund Shares received by each Selling
Fund Shareholder pursuant to the Reorganization will be the same as the
aggregate tax basis of the Selling Fund shares held by such shareholder
immediately prior to the Reorganization, and the holding period of the
Acquiring Fund Shares to be received by each Selling Fund Shareholder will
include the period during which the Selling Fund shares exchanged therefor
were held by such shareholder (provided the Selling Fund shares were held
as capital assets on the date of the Reorganization); and (f) the tax basis
of the Selling Fund assets acquired by the Acquiring Fund will be the same
as the tax basis of such assets to the Selling Fund immediately prior to
the Reorganization, and the holding period of the assets of the Selling
Fund in the hands of the Acquiring Fund will include the period during
which those assets were held by the Selling Fund. Notwithstanding anything
herein to the contrary, neither the Acquiring Fund nor the Selling Fund may
waive the conditions set forth in this paragraph 8.6.
8.7 The Acquiring Fund shall have received from KPMG Peat Marwick LLP a
letter addressed to the Acquiring Fund, in form and substance satisfactory
to the Acquiring Fund, to the effect that (i) they are independent
certified public accountants with respect to the Selling Fund within the
meaning of the 1933 Act and the applicable published rules and regulations
thereunder; (ii) on the basis 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) consisting of a
reading of any unaudited pro forma financial statements included in the
Registration Statement and Prospectus and Proxy Statement, and inquiries of
appropriate officials of the FFB Trust responsible for financial and
accounting matters, nothing came to their attention which caused them to
believe that such unaudited pro forma financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder; or (iii) on the basis 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), the Capitalization
Table appearing in the Registration Statement and Prospectus and Proxy
Statement, has been obtained from and is consistent with the accounting
records of the Selling Fund; (iv) on the basis 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), the
pro forma financial statements which are included in the Registration
Statement and Prospectus and Proxy Statement, were prepared based on the
valuation of the Selling Fund's assets in accordance with the Evergreen
Trust's Declaration of Trust and the Acquiring Fund's then current
prospectus and statement of additional information pursuant to procedures
customarily utilized by the Acquiring Fund in valuing its own assets (such
procedures having been previously described to KPMG Peat Marwick LLP in
writing by the Acquiring Fund); and (v) on the basis of limited procedures
agreed upon by the Acquiring Fund and described in the letter (but not an
examination in accordance with generally accepted auditing standards) the
data utilized in the calculations of the projected expense ratio appearing
in the Registration Statement and Prospectus and Proxy Statement agree with
underlying accounting records of the Selling Fund or to written estimates
by Selling Fund's management and were found to be mathematically correct.
In addition, the Acquiring Fund shall have received from KPMG Peat
Marwick LLP a letter addressed to the Acquiring Fund dated on the Closing
Date, in form and substance satisfactory to the Acquiring Fund, to the
effect that on the basis of limited procedures agreed upon by the Acquiring
Fund (but not an examination in accordance with generally accepted auditing
standards) the calculation of net asset value per share of the Selling Fund
as of the Valuation Date was determined in accordance with generally
accepted accounting practices and the portfolio valuation practices of the
Acquiring Fund.
8.8 The Selling Fund shall have received from KPMG Peat Marwick LLP a
letter addressed to the Selling Fund, in form and substance satisfactory to
the Selling Fund, to the effect that (i) they are independent certified
public accountants with respect to the Acquiring Fund within the meaning of
the 1933 Act and the applicable published rules and regulations thereunder;
(ii) on the basis of limited procedures agreed upon by the Selling Fund and
described in such letter (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of any
unaudited pro forma financial statements included in the Registration
Statement and Prospectus and Proxy Statement, and inquiries of appropriate
officials of the Evergreen Trust responsible for financial and accounting
matters, nothing came to their attention which caused them to believe that
such unaudited pro forma financial statements do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder; (iii) on the
basis of limited procedures agreed upon by the Selling Fund and described
in such letter (but not an examination in accordance with generally
accepted auditing standards), the Capitalization Table appearing in the
Registration Statement and Prospectus and Proxy Statement, has been
obtained from and is consistent with the accounting records of the
Acquiring Fund; and (iv) on the basis of limited procedures agreed upon by
the Selling Fund (but not an examination in accordance with generally
accepted auditing standards) the data utilized in the calculations of the
projected expense ratio appearing in the Registration Statement and
Prospectus and Proxy Statement agree with underlying accounting records of
the Acquiring Fund or to written estimates by each Fund's management and
were found to be mathematically correct.
8.9 The Acquiring Fund and the Selling Fund shall also have received from
KPMG Peat Marwick LLP a letter addressed to the Acquiring Fund and the
Selling Fund, dated on the Closing Date in form and substance satisfactory
to the Funds, setting forth the Federal income tax implications relating to
capital loss carryforwards (if any) of the Selling Fund and the related
impact, if any, of the proposed transfer of all or substantially all of the
assets of the Selling Fund to the Acquiring Fund and the ultimate
dissolution of the Selling Fund, upon the shareholders of the Selling Fund.
ARTICLE IX
BROKERAGE FEES AND EXPENSES
9.1 The Acquiring Fund and the Selling Fund each represents and warrants to
the other that there are no brokers or finders entitled to receive any
payments in connection with the transactions provided for herein.
9.2 Except as otherwise provided for herein, all expenses of the
transactions contemplated by this Agreement incurred by the Selling Fund
and the Acquiring Fund will be borne by First Union National Bank of North
Carolina ("FUNB"). Such expenses include, without limitation, (i)
expenses incurred in connection with the entering into and the carrying out
of the provisions of this Agreement; (ii) expenses associated with the
preparation and filing of the Registration Statement under the 1933 Act
covering the Acquiring Fund Shares to be issued pursuant to the provisions
of this Agreement; (iii) registration or qualification fees and expenses of
preparing and filing such forms as are necessary under applicable state
securities laws to qualify the Acquiring Fund Shares to be issued in
connection herewith in each state in which the Selling Fund Shareholders
are resident as of the date of the mailing of the Prospectus and Proxy
Statement to such shareholders; (iv) postage; (v) printing; (vi) accounting
fees; (vii) legal fees; and (viii) solicitation cost of the transaction.
Not withstanding Notwithstanding the foregoing, the Acquiring Fund shall
pay its own Federal and state registration fees. In the event that the
merger of First Fidelity Bancorporation and First Union Corporation is not
completed, this Agreement shall terminate. In such event, all expenses of
the transactions contemplated by this Agreement incurred by the Acquiring
Fund will be borne by FUNB and all expenses of the transactions
contemplated by this Agreement incurred by the Selling Fund will be borne
by First Fidelity Bank, N.A.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Acquiring Fund and the Selling Fund agree that neither party has
made any representation, warranty or covenant not set forth herein and that
the this Agreement constitutes the entire agreement between the parties.
10.2 The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder.
ARTICLE XI
TERMINATION
11.1 In addition to the termination provisions set forth in paragraph 9.2,
this Agreement may be terminated by the mutual agreement of the Acquiring
Fund and the Selling Fund. In addition, either the Acquiring Fund or the
Selling Fund may at its option terminate this Agreement at or prior to the
Closing Date because:
(a) of a breach by the other of any representation, warranty or agreement
contained herein to be performed at or prior to the Closing Date, if not
cured within 30 days; or
(b) a condition herein expressed to be precedent to the obligations of the
terminating party has not been met and it reasonably appears that it will
not or cannot be met.
11.2 In the event of any such termination, in the absence of willful
default, there shall be no liability for damages on the part of either the
Acquiring Fund or the Selling Fund, the Evergreen Trust or the FFB Trust or
their respective Trustees or officers, to the other party or its, Trustees
or officers, but each shall bear the expenses incurred by it incidental to
the preparation and carrying out of this Agreement as provided in paragraph
9.2.
ARTICLE XII
AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of the
Selling Fund and the Acquiring Fund; provided, however, that following the
meeting of the Selling Fund Shareholders called by the FFB Trust pursuant
to paragraph 5.2 of this Agreement, no such amendment may have the effect
of changing the provisions for determining the number of the Acquiring Fund
Shares to be issued to the Selling Fund Shareholders under this Agreement
to the detriment of such shareholders without their further approval.
ARTICLE XIII
NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
prepaid telegraph, telecopy, overnight courier or certified mail addressed
to:
the Acquiring Fund
Evergreen Investment Trust
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxx, Esq.
or to the Selling Fund
FFB Funds Trust
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
ARTICLE XIV
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF
LIABILITY
14.1 The Article and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
14.3 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
14.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by
any party without the written consent of the other party. Nothing herein
expressed or implied is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties hereto and
their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
14.5 It is expressly agreed to that the obligations of the Selling Fund and
the Acquiring Fund hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents, or employees of the FFB Trust or
the Evergreen Trust, personally, but bind only the trust property of the
Selling Fund and the Acquiring Fund, as provided in the Declarations of
Trust of the FFB Trust and the Evergreen Trust. The execution and delivery
of this Agreement have been authorized by the Trustees of the FFB Trust on
behalf of the Selling Fund, and the Evergreen Trust on behalf of the
Acquiring Fund and signed by authorized officers of the FFB Trust and the
Evergreen Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officers shall be deemed
to have been made by any of them individually or to impose any liability on
any of them personally, but shall bind only the trust property of the FFB
Trust and the Evergreen Trust as provided in their Declarations of Trust.
IN WITNESS WHEREOF, the parties have duly executed and sealed this
Agreement, all as of the date first written above.
EVERGREEN INVESTMENT TRUST
on behalf of Evergreen Treasury Money Market Fund
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
(Seal)
FFB FUNDS TRUST
on behalf of FFB U.S. Treasury Fund
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
Exhibit A
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 19th day of September, 1995, by and between Evergreen Investment
Trust, a Massachusetts business trust (the "Evergreen Trust"), with its
principal place of business at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000, with respect to its Evergreen Treasury Money Market Fund series (the
"Acquiring Fund"), and FFB Funds Trust (the "FFB Trust"), a Massachusetts
business trust, with respect to its FFB U.S. Government Fund series, with
its principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Selling Fund").
This Agreement is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368 (a)(1)(C) of the United
States Internal Revenue Code of 1986 (the "Code"). The reorganization
(the "Reorganization") will consist of the transfer of substantially all of
the assets of the Selling Fund in exchange solely for Class A shares of
beneficial interest, without par value, of the Acquiring Fund (the
"Acquiring Fund Shares") and the assumption by the Acquiring Fund of
certain stated liabilities of the Selling Fund and the distribution, after
the Closing Date hereinafter referred to, of the Acquiring Fund Shares to
the shareholders of the Selling Fund in liquidation of the Selling Fund as
provided herein, all upon the terms and conditions hereinafter set forth in
this Agreement.
WHEREAS, the Selling Fund and the Acquiring Fund are separate investment
series of open-end, registered investment companies of the management type
and the Selling Fund owns securities which generally are assets of the
character in which the Acquiring Fund is permitted to invest;
WHEREAS, both Funds are authorized to issue their shares of beneficial
interest;
WHEREAS, the Trustees of the Evergreen Trust have determined that the
exchange of substantially all of the assets of the Selling Fund for
Acquiring Fund Shares and the assumption of certain stated liabilities by
the Acquiring Fund on the terms and conditions hereinafter set forth is are
in the best interests of the Acquiring Fund shareholders and that the
interests of the existing shareholders of the Acquiring Fund will not be
diluted as a result of the transactions contemplated herein;
WHEREAS, the Trustees of the FFB Trust have determined that the Selling
Fund should exchange substantially all of its assets and certain of its
liabilities for Acquiring Fund Shares and that the interests of the
existing shareholders of the Selling Fund will not be diluted as a result
of the transactions contemplated herein;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE I
TRANSFER OF ASSETS OF THE SELLING FUND IN EXCHANGE FOR THE ACQUIRING
FUND SHARES AND ASSUMPTION OF SELLING FUND LIABILITIES AND LIQUIDATION OF
THE SELLING FUND
1.1 The Exchange. Subject to the terms and conditions herein set forth and
on the basis of the representations and warranties contained herein, the
Selling Fund agrees to transfer substantially all of the Selling Fund's
assets as set forth in paragraph 1.2 to the Acquiring Fund, and the
Acquiring Fund agrees in exchange therefor (i) to deliver to the Selling
Fund the number of Acquiring Fund Shares, including fractional Acquiring
Fund Shares, determined by multiplying the shares outstanding of each class
of the Selling Fund by the ratio computed by dividing the net asset value
per share of each such class of the Selling Fund by the net asset value per
share of the Acquiring Fund Shares computed in the manner and as of the
time and date set forth in paragraph 2.2 and (ii) to assume certain
liabilities of the Selling Fund, as set forth in paragraph 1.3. Such
transactions shall take place at the closing provided for in paragraph 3.1
(the "Closing Date").
1.2 Assets to be Acquired. The assets of the Selling Fund to be acquired by
the Acquiring Fund shall consist of all property, including without
limitation all cash, securities, commodities and futures interests and
dividends or interest receivable, which are owned by the Selling Fund and
any deferred or prepaid expenses shown as an asset on the books of the
Selling Fund on the Closing Date. The Selling Fund has provided the
Acquiring Fund with its most recent audited financial statements which
contain a list of all of Selling Fund's assets as of the date thereof. The
Selling Fund hereby represents that as of the date of the execution of this
Agreement there have been no changes in its financial position as
reflected in said financial statements other than those occurring in the
ordinary course of its business in connection with the purchase and sale of
securities and the payment of its normal operating expenses. The Selling
Fund reserves the right to sell any of such securities but will not,
without the prior written approval of the Acquiring Fund, acquire any
additional securities other than securities of the type in which the
Acquiring Fund is permitted to invest. The Acquiring Fund will, within a
reasonable time prior to the Closing Date, furnish the Selling Fund with a
statement of the Acquiring Fund's investment objectives, policies and
restrictions and a list of the securities, if any, on the Selling Fund's
list referred to in the second sentence of this paragraph which do not
conform to the Acquiring Fund's investment objectives, policies, and
restrictions. In the event that the Selling Fund holds any investments
which the Acquiring Fund may not hold, the Selling Fund will dispose of
such securities prior to the Closing Date. In addition, if it is determined
that the Selling Fund and the Acquiring Fund portfolios, when aggregated,
would contain investments exceeding certain percentage limitations imposed
upon the Acquiring Fund with respect to such investments, the Selling Fund
if requested by the Acquiring Fund will dispose of a sufficient amount of
such investments as may be necessary to avoid violating such limitations as
of the Closing Date.
1.3 Liabilities to be Assumed. The Selling Fund will endeavor to discharge
all of its known liabilities and obligations prior to the Closing Date.
The Acquiring Fund shall assume only those liabilities, expenses, costs,
charges and reserves reflected on a Statement of Assets and Liabilities of
the Selling Fund prepared by Xxxxxx Xxxx Incorporated, the administrator of
the Selling Fund, as of the Valuation Date (as defined in paragraph 2.1),
in accordance with generally accepted accounting principles consistently
applied from the prior audited period. The Acquiring Fund shall assume
only those liabilities of the Selling Fund reflected in such Statement of
Assets and Liabilities and shall not assume any other liabilities, whether
absolute or contingent, known or unknown, accrued or unaccrued, all of
which shall remain the obligation of the Selling Fund.
1.4 Liquidation and Distribution. As soon after the Closing Date as is
conveniently practicable (the "Liquidation Date"), (a) the Selling Fund
will liquidate and distribute pro rata to the Selling Fund's shareholders
of record, determined as of the close of business on the Closing Date (the
"Selling Fund Shareholders"), the Acquiring Fund Shares received by the
Selling Fund pursuant to paragraph 1.1. and (b) the Selling Fund will
thereupon proceed to dissolve as set forth in paragraph 1.8 below. Such
liquidation and distribution will be accomplished by the transfer of the
Acquiring Fund Shares then credited to the account of the Selling Fund on
the books of the Acquiring Fund, to open accounts on the share records of
the Acquiring Fund in the names of the Selling Fund Shareholders and
representing the respective pro rata number of the Acquiring Fund Shares
due such shareholders. All issued and outstanding shares of the Selling
Fund will simultaneously be canceled on the books of the Selling Fund. The
Acquiring Fund shall not issue certificates representing the Acquiring Fund
Shares in connection with such exchange.
1.5 Ownership of Shares. Ownership of Acquiring Fund Shares will be shown
on the books of the Acquiring Fund's transfer agent. Shares of the
Acquiring Fund will be issued in the manner described in the combined
Prospectus and Proxy Statement on Form N-14 to be distributed to
shareholders of the Selling Fund as described in Section 5 paragraph 5.7.
1.6 Transfer Taxes. Any transfer taxes payable upon issuance of the
Acquiring Fund Shares in a name other than the registered holder of the
Selling Fund shares on the books of the Selling Fund as of that time shall,
as a condition of such issuance and transfer, be paid by the person to whom
such Acquiring Fund Shares are to be issued and transferred.
1.7 Reporting Responsibility. Any reporting responsibility of the Selling
Fund is and shall remain the responsibility of the Selling Fund up to and
including the Closing Date and such later date on which the Selling Fund is
terminated.
1.8 Termination. The Selling Fund shall be terminated promptly following
the Closing Date and the making of all distributions pursuant to paragraph
1.4.
ARTICLE II
VALUATION
2.1 Valuation of Assets. The value of the Selling Fund's assets to be
acquired by the Acquiring Fund hereunder shall be the value of such assets
computed as of the close of business on the New York Stock Exchange on the
Closing Date (such time and date being hereinafter called the "Valuation
Date"), using the valuation procedures set forth in the Evergreen Trust's
Declaration of Trust and the Acquiring Fund's then current prospectus and
statement of additional information or such other valuation procedures as
shall be mutually agreed upon by the parties.
2.2 Valuation of Shares. The net asset value per share of the Acquiring
Fund Shares shall be the net asset value per share computed as of the close
of business on the New York Stock Exchange on the Valuation Date, using the
valuation procedures set forth in the Evergreen Trust's Declaration of
Trust and the Acquiring Fund's then current prospectus and statement of
additional information.
2.3 Shares to be Issued. The number of the Acquiring Fund Shares of each
class to be issued (including fractional shares, if any) in exchange for
the Selling Fund's assets shall be determined by multiplying the shares
outstanding of each class of the Selling Fund by the ratio computed by
dividing the net asset value per share of the Selling Fund attributable to
each of its classes by the net asset value per share of the respective
classes of the Acquiring Fund determined in accordance with paragraph 2.2.
2.4 Determination of Value. All computations of value shall be made by
State Street Bank and Trust Company in accordance with its regular practice
in pricing the shares and assets of the Acquiring Fund.
ARTICLE III
CLOSING AND CLOSING DATE
3.1 Closing Date. The Closing (the "Closing") shall take place on January
12 19, 1996 or such other date as the parties may agree to in writing (the
"Closing Date"). All acts taking place at the Closing shall be deemed to
take place simultaneously as of the close of business on the Closing Date
unless otherwise provided. The Closing shall be held as of 9:00 o'clock
a.m. at the offices of Evergreen Asset Management Corp., 0000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, or at such other time and/or place as
the parties may agree.
3.2 Custodian's Certificate. First Fidelity Bank, N.A., as custodian for
the Selling Fund (the "Custodian"), shall deliver at the Closing a
certificate of an authorized officer stating that: (a) the Selling Fund's
portfolio securities, cash, and any other assets shall have been delivered
in proper form to the Acquiring Fund on the Closing Date and (b) all
necessary taxes including all applicable Federal and state stock transfer
stamps, if any, shall have been paid, or provision for payment shall have
been made, in conjunction with the delivery of portfolio securities by the
Selling Fund.
3.3 Effect of Suspension in Trading. In the event that on the Valuation
Date (a) the New York Stock Exchange or another primary trading market for
portfolio securities of the Acquiring Fund or the Selling Fund shall be
closed to trading or trading thereon shall be restricted, or (b) trading or
the reporting of trading on said Exchange or elsewhere shall be disrupted
so that accurate appraisal of the value of the net assets of the Acquiring
Fund or the Selling Fund is impracticable, the Closing Date shall be
postponed until the first business day after the day when trading shall
have been fully resumed and reporting shall have been restored.
3.4 Transfer Agent's Certificate. First Fidelity Bank, N.A., as transfer
agent for the Selling Fund shall deliver at the Closing a certificate of an
authorized officer stating that its records contain the names and addresses
of the Selling Fund Shareholders and the number and percentage ownership of
outstanding shares owned by each such shareholder immediately prior to the
Closing. The Acquiring Fund shall issue and deliver or cause its transfer
agent to issue and deliver a confirmation evidencing the Acquiring Fund
Shares to be credited on the Closing Date to the Secretary of the FFB Trust
, or provide evidence satisfactory to the Selling Fund that such Acquiring
Fund Shares have been credited to the Selling Fund's account on the books
of the Acquiring Fund. At the Closing each party shall deliver to the other
such bills of sale, checks, assignments, share certificates, if any,
receipts and other documents as such other party or its counsel may
reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations of the Selling Fund. The Selling Fund represents and
warrants to the Acquiring Fund as follows:
(a) The Selling Fund is a separate investment series of a Massachusetts
business trust duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts;
(b) The Selling Fund is a separate investment series of a registered
investment company classified as a management company of the open-end type
and its registration with the Securities and Exchange Commission (the
"Commission") as an investment company under the Investment Company Act of
1940, as amended (the "1940 Act") is in full force and effect;
(c) The current prospectus and statement of additional information of the
Selling Fund conform in all material respects to the applicable
requirements of the Securities Act of 1933, as amended (the "1933 Act") and
the 1940 Act and the rules and regulations of the Commission thereunder and
do not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not materially misleading;
(d) The Selling Fund is not, and the execution, delivery and performance of
this Agreement (subject to shareholder approval) will not, result in a
violation of any provision of the FFB Trust's Declaration of Trust or
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which the Selling Fund is a party or by which it is
bound;
(e) The Selling Fund has no material contracts or other commitments (other
than this Agreement) which will be terminated with liability to it prior to
the Closing Date;
(f) Except as otherwise disclosed in writing to and accepted by the
Acquiring Fund, no litigation, administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Selling Fund or any of its properties or
assets which, if adversely determined, would materially and adversely
affect its financial condition, the conduct of its business or the ability
of the Selling Fund to carry out the transactions contemplated by this
Agreement. The Selling 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;
(g) The financial statements of the Selling Fund at February 28, 1995 have
been audited by KPMG Peat Marwick LLP, certified public accountants, and
are in accordance with generally accepted accounting principles
consistently applied, and such statements (copies of which have been
furnished to the Acquiring Fund) fairly reflect the financial condition of
the Selling Fund as of such date, and there are no known contingent
liabilities of the Selling Fund as of such date not disclosed therein;
(h) Since February 28, 1995 there has not been any material adverse change
in the Selling Fund's financial condition, assets, liabilities or business
other than changes occurring in the ordinary course of business, or any
incurrence by the Selling Fund of indebtedness maturing more than one year
from the date such indebtedness was incurred, except as otherwise disclosed
to and accepted by the Acquiring Fund. For the purposes of this
subparagraph (h), a decline in the net asset value of the Selling Fund
shall not constitute a material adverse change;
(i) At the Closing Date, all Federal and other tax returns and reports of
the Selling Fund required by law to have been filed by such dates shall
have been filed, and all Federal and other taxes shown due on said returns
and reports shall have been paid, or provision shall have been made for the
payment thereof and to the best of the Selling Fund's knowledge no such
return is currently under audit and no assessment has been asserted with
respect to such returns;
(j) For each fiscal year of its operation, the Selling Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as
a regulated investment company and has distributed in each such year all
net investment income and realized capital gains;
(k) All issued and outstanding shares of the Selling Fund are, and at the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by the Selling Fund (except that, under Massachusetts
law, Selling Fund Shareholders could, under certain circumstances be held
personally liable for obligations of the Selling Fund). All of the issued
and outstanding shares of the Selling Fund will, at the time of the Closing
Date, be held by the persons and in the amounts set forth in the records of
the transfer agent as provided in paragraph 3.4. The Selling Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any of the Selling Fund shares, nor is there outstanding any
security convertible into any of the Selling Fund shares;
(l) At the Closing Date, the Selling Fund will have good and marketable
title to the Selling Fund's assets to be transferred to the Acquiring Fund
pursuant to paragraph 1.2 and full right, power, and authority to sell,
assign, transfer and deliver such assets hereunder, and upon delivery and
payment for such assets, the Acquiring Fund will acquire good and
marketable title thereto, subject to no restrictions on the full transfer
thereof, including such restrictions as might arise under the 1933 Act,
other than as disclosed to the Acquiring Fund and accepted by the Acquiring
Fund;
(m) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Selling Fund
and, subject to approval by the Selling Fund Shareholders, this Agreement
constitutes a valid and binding obligation of the Selling Fund, enforceable
in accordance with its terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights and to general equity principles;
(n) The information to be furnished by the Selling Fund for use in
no-action letters, applications for orders, registration statements, proxy
materials and other documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete in all
material respects and shall comply in all material respects with Federal
securities and other laws and regulations thereunder applicable thereto;
(o) The proxy statement of the Selling Fund to be included in the
Registration Statement referred to in paragraph 5.7 (other than information
therein that relates to the Acquiring Fund) will, on the effective date of
the Registration Statement and on the Closing Date, not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which such statements were made, not misleading.
4.2 Representations of the Acquiring Fund. The Acquiring Fund represents
and warrants to the Selling Fund as follows:
(a) The Acquiring Fund is a separate investment series of a Massachusetts
business trust duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of a Massachusetts
business trust that is registered as an investment company classified as a
management company of the open-end type and its registration with the
Commission as an investment company under the 1940 Act is in full force and
effect;
(c) The current prospectus and statement of additional information of the
Acquiring Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations
of the Commission thereunder and do not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) The Acquiring Fund is not, and the execution, delivery and performance
of this Agreement will not, result in a violation of Evergreen Trust's
Declaration of Trust or By-Laws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Acquiring Fund is a party
or by which it is bound;
(e) Except as otherwise disclosed in writing to the Selling Fund and
accepted by the Selling Fund, no litigation, administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Acquiring Fund or any of
its properties or assets which, if adversely determined, would materially
and adversely affect its financial condition and the conduct of its
business or the ability of the Acquiring Fund to carry out the transactions
contemplated by this Agreement. The Acquiring Fund knows of no facts which
might form the basis for the institution of such proceedings and is not a
party to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions contemplated herein;
(f) The financial statements of the Acquiring Fund at December 31, 1994,
have been audited by KPMG Peat Marwick LLP, certified public accountants,
and are in accordance with generally accepted accounting principles
consistently applied, and such statements (copies of which have been
furnished to the Selling Fund) fairly reflect the financial condition of
the Acquiring Fund as of such date, and there are no known contingent
liabilities affecting the Acquiring Fund as of such date not disclosed
therein;
(g) Since December 31, 1994 there has not been any material adverse change
in the Acquiring Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of business,
or any incurrence by the Acquiring Fund of indebtedness maturing more than
one year from the date such indebtedness was incurred, except as otherwise
disclosed to and accepted by the Acquiring Fund. For the purposes of this
subparagraph (g), a decline in the net asset value of the Acquiring Fund
shall not constitute a material adverse change;
(h) At the Closing Date, all Federal and other tax returns and reports of
the Acquiring Fund required by law then to be filed by such dates shall
have been filed, and all Federal and other taxes shown due on said returns
and reports shall have been paid or provision shall have been made for the
payment thereof and to the best of the Acquiring Fund's knowledge, no such
return is currently under audit and no assessment has been asserted with
respect to such returns;
(i) For each fiscal year of its operation the Acquiring Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as
a regulated investment company and has distributed in each such year all
net investment income and realized capital gains;
(j) All issued and outstanding Acquiring Fund Shares are, and at the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable (except that, under Massachusetts law, shareholders of
the Acquiring Fund could, under certain circumstances, be held personally
liable for obligations of the Acquiring Fund). The Acquiring Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any Acquiring Fund Shares, nor is there outstanding any security
convertible into any Acquiring Fund Shares;
(k) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Acquiring Fund,
and this Agreement constitutes a valid and binding obligation of the
Acquiring Fund enforceable in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights and to general equity
principles;
(l) The Acquiring Fund Shares to be issued and delivered to the Selling
Fund, for the account of the Selling Fund Shareholders, pursuant to the
terms of this Agreement will at the Closing Date have been duly authorized
and, when so issued and delivered, will be duly and validly issued
Acquiring Fund Shares, and will be fully paid and non-assessable (except
that, under Massachusetts law, shareholders of the Acquiring Fund could,
under certain circumstances, be held personally liable for obligations of
the Acquiring Fund);
(m) The information to be furnished by the Acquiring Fund for use in no-
action letters, applications for orders, registration statements, proxy
materials and other documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete in all
material respects and shall comply in all material respects with Federal
securities and other laws and regulations applicable thereto;
(n) The Prospectus and Proxy Statement to be included in the Registration
Statement (only insofar as it relates to the Acquiring Fund ) will, on the
effective date of the Registration Statement and on the Closing Date, not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements were
made, not misleading; and
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and
such of the state Blue Sky or securities laws as it may deem appropriate in
order to continue its operations after the Closing Date.
ARTICLE V
COVENANTS OF THE ACQUIRING FUND AND THE SELLING FUND
5. 1 Operation in Ordinary Course. The Acquiring Fund and the Selling Fund
each will operate its business in the ordinary course between the date
hereof and the Closing Date, it being understood that such ordinary course
of business will include customary dividends and distributions.
5.2 Approval of Shareholders. The FFB Trust will call a meeting of the
Selling Fund Shareholders to consider and act upon this Agreement and to
take all other action necessary to obtain approval of the transactions
contemplated herein.
5.3 Investment Representation. The Selling Fund covenants that the
Acquiring Fund Shares to be issued hereunder are not being acquired for the
purpose of making any distribution thereof other than in accordance with
the terms of this Agreement.
5.4 Additional Information. The Selling Fund will assist the Acquiring
Fund in obtaining such information as the Acquiring Fund reasonably
requests concerning the beneficial ownership of the Selling Fund shares.
5.5 Further Action. Subject to the provisions of this Agreement, the
Acquiring Fund and the Selling Fund will each take, or cause to be taken,
all action, and do or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated by this Agreement, including any actions required to be taken
after the Closing Date.
5.6 Statement of Earnings and Profits. As promptly as practicable, but in
any case within sixty days after the Closing Date, the Selling Fund shall
furnish the Acquiring Fund, in such form as is reasonably satisfactory to
the Acquiring Fund, a statement of the earnings and profits of the Selling
Fund for Federal income tax purposes which will be carried over by the
Acquiring Fund as a result of Section 381 of the Code, and which will be
certified by the FFB Trust's President, its Treasurer and its independent
auditors.
5.7 Preparation of Form N-14 Registration Statement. The Selling Fund will
provide the Acquiring Fund with information reasonably necessary for the
preparation of a prospectus which will include the proxy statement,
referred to in paragraph 4.1(o) (the "Prospectus and Proxy Statement"), all
to be included in a Registration Statement on Form N-14 of the Acquiring
Fund (the "Registration Statement"), in compliance with the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the 1940
Act in connection with the meeting of the Selling Fund Shareholders to
consider approval of this Agreement and the transactions contemplated
herein.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND
The obligations of the Selling Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance
by the Acquiring Fund of all the obligations to be performed by it
hereunder on or before the Closing Date, and, in addition thereto, the
following further conditions:
6.1 All representations, covenants and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct as of the date hereof
and as of the Closing Date with the same force and effect as if made on and
as of the Closing Date, and the Acquiring Fund shall have delivered to the
Selling Fund a certificate executed in its name by the Evergreen Trust's
President or Vice President and its Treasurer or Assistant Treasurer, in
form and substance reasonably satisfactory to the Selling Fund and dated as
of the Closing Date, to such effect and as to such other matters as the
Selling Fund shall reasonably request; and
6.2 The Selling Fund shall have received on the Closing Date an opinion
from Xxxxxxxx & Worcester, counsel to the Acquiring Fund, dated as of the
Closing Date, in a form reasonably satisfactory to the Selling Fund,
covering the following points:
That (a) the Acquiring Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
power to own all of its properties and assets and to carry on its business
as presently conducted; (b) this Agreement has been duly authorized,
executed and delivered by the Acquiring Fund, and, assuming that the
Prospectus and Proxy Statement, and Registration Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and, assuming due authorization, execution and delivery of this
Agreement by the Selling Fund, is a valid and binding obligation of the
Acquiring Fund enforceable against the Acquiring Fund in accordance with
its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and to general equity principles; (c) assuming
that a consideration therefor not less than the net asset value thereof has
been paid, the Acquiring Fund Shares to be issued and delivered to the
Selling Fund on behalf of the Selling Fund Shareholders as provided by this
Agreement are duly authorized and upon such delivery will be legally issued
and outstanding and fully paid and non-assessable (except that, under
Massachusetts law, shareholders of the Acquiring Fund could, under certain
circumstances, be held personally liable for obligations of the Acquiring
Fund), and no shareholder of the Acquiring Fund has any preemptive rights
in respect thereof; (d) the execution and delivery of this Agreement did
not, and the consummation of the transactions contemplated hereby will not,
result in a violation of the Evergreen Trust's Declaration of Trust or By-
Laws or any provision of any material agreement, indenture, instrument,
contract, lease or other undertaking (in each case known to such counsel)
to which the Acquiring Fund is a party or by which it or any of its
properties may be 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 Acquiring Fund is a party or by
which it is bound; (e) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental authority of
the United States or the Commonwealth of Massachusetts, is required for the
consummation by 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 laws; (f) only
insofar as they relate to the Acquiring Fund, the descriptions in the
Prospectus and Proxy Statement of statutes, legal and governmental
proceedings and material contracts, if any, are accurate and fairly present
the information required to be shown; (g) such counsel does not know of any
legal or governmental proceedings, only insofar as they relate to the
Acquiring Fund, existing on or before the effective date of the
Registration Statement or the Closing Date required to be described in the
Registration Statement or to be filed as exhibits to the Registration
Statement which are not described or filed as required; (h) the Acquiring
Fund is a separate investment series of a Massachusetts business trust
registered as an investment company under the 1940 Act and to such
counsel's best knowledge, such registration with the Commission as an
investment company under the 1940 Act is in full force and effect; and (i)
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 Acquiring Fund or any of its
properties or assets and the Acquiring Fund 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,
other than as previously disclosed in the Registration Statement. 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 Prospectus and 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 Prospectus and Proxy Statement (except to the
extent indicated in paragraph (f) of their above opinion), on the basis of
the foregoing (relying as to materiality to a large extent upon the
opinions of the Evergreen Trust's officers and other representatives of the
Acquiring Fund), no facts have come to their attention that lead them to
believe that the Prospectus and Proxy Statement as of its date, as of the
date of the Selling Fund Shareholders' meeting, and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein regarding the Acquiring Fund or
necessary, in the light of the circumstances under which they were made, to
make the statements therein regarding the Acquiring Fund not misleading.
Such opinion may state that such counsel does not express any opinion or
belief as to the financial statements or any financial or statistical
data, or as to the information relating to the Selling Fund, contained in
the Prospectus and Proxy Statement or the Registration Statement, and that
such opinion is solely for the benefit of the FFB Trust and the Selling
Fund. Such opinion shall contain such other assumptions and limitations as
shall be in the opinion of Xxxxxxxx & Worcester appropriate to render the
opinions expressed therein.
In this paragraph 6.2, references to Prospectus and Proxy Statement
include and relate to only the text of such Prospectus and Proxy Statement
and not to any exhibits or attachments thereto or to any documents
incorporated by reference therein.
6.3 The merger between First Union Corporation and First Fidelity
Corporation Bancorporation shall be completed prior to the Closing Date.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to complete the transactions
provided for herein shall be subject, at its election, to the performance
by the Selling Fund of all the obligations to be performed by it hereunder
on or before the Closing Date and, in addition thereto, the following
conditions:
7.1 All representations, covenants and warranties of the Selling Fund
contained in this Agreement shall be true and correct as of the date hereof
and as of the Closing Date with the same force and effect as if made on and
as of the Closing Date, and the Selling Fund shall have delivered to the
Acquiring Fund on the Closing Date a certificate executed in its name by
the FFB Trust's President or Vice President and its Treasurer or Assistant
Treasurer, in form and substance satisfactory to the Acquiring Fund and,
dated as of the Closing Date, to such effect and as to such other matters
as the Acquiring Fund shall reasonably request;
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement
of the Selling Fund's assets and liabilities, together with a list of the
Selling Fund's portfolio securities showing the tax costs of such
securities by lot and the holding periods of such securities, as of the
Closing Date, certified by the Treasurer of the FFB Trust; and
7.3 The Acquiring Fund shall have received on the Closing Date an opinion
of Xxxxx & XxXxxxxx, counsel to the Selling Fund, in a form satisfactory to
the Acquiring Fund covering the following points:
That (a) the Selling Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
power to own all of its properties and assets and to carry on its business
as presently conducted; (b) this Agreement has been duly authorized,
executed and delivered by the Selling Fund, and, assuming that the
Prospectus and Proxy Statement, and Registration Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and, assuming due authorization, execution and delivery of this
Agreement by the Acquiring Fund, is a valid and binding obligation of the
Selling Fund enforceable against the Selling Fund in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and to general equity principles; (c) the execution and delivery
of this Agreement did not, and the consummation of the transactions
contemplated hereby will not, result in a violation of the FFB Trust's
Declaration of Trust or By-laws, or any provision of any material
agreement, indenture, instrument, contract, lease or other undertaking (in
each case known to such counsel) to which the Selling Fund is a party or by
which it or any of its properties may be 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 Selling
Fund is a party or by which it is bound; (d) to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority of the United States or the Commonwealth of
Massachusetts is required for the consummation by the Selling 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 laws; (e) only insofar as they relate to the Selling
Fund, the descriptions in the Prospectus and Proxy Statement of statutes,
legal and governmental proceedings and material contracts, if any, are
accurate and fairly present the information required to be shown; (f) such
counsel does not know of any legal or governmental proceedings, only
insofar as they relate to the Selling Fund existing on or before the date
of mailing of the Prospectus and Proxy Statement and the Closing Date,
required to be described in the Prospectus and Proxy Statement or to be
filed as an exhibit to the Registration Statement which are not described
or filed as required; (g) the Selling Fund is a separate investment series
of a Massachusetts business trust registered as an investment company under
the 1940 Act and to such counsel's best knowledge, such registration with
the Commission as an investment company under the 1940 Act is in full force
and effect; (h) 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 Selling Fund
or any of its respective properties or assets and the Selling Fund is
neither a party to nor subject to the provisions of any order, decree or
judgment of any court or governmental body, which materially and adversely
affects its business other than as previously disclosed in the Prospectus
and Proxy Statement; (i) assuming that a consideration therefor not less
than the net asset value thereof has been paid, and assuming that such
shares were issued in accordance with the terms of the Selling Fund's
registration statement, or any amendment thereto, in effect at the time of
such issuance, all issued and outstanding shares of the Selling Fund are
legally issued and fully paid and non-assessable (except that, under
Massachusetts law, Selling Fund Shareholders could, under certain
circumstances be held personally liable for obligations of the Selling
Fund). Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Selling Fund at
which the contents of the Prospectus and 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 Prospectus and Proxy Statement (except to the
extent indicated in paragraph (e) of their above opinion), on the basis of
the foregoing (relying as to materiality to a large extent upon the
opinions of the FFB Trust's officers and other representatives of the
Selling Fund), no facts have come to their attention that lead them to
believe that the Prospectus and Proxy Statement as of its date, as of the
date of the Selling Fund Shareholders' meeting, and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein regarding the Selling Fund or
necessary, in the light of the circumstances under which they were made, to
make the statements therein regarding the Selling Fund not misleading. Such
opinion may state that such counsel does not express any opinion or belief
as to the financial statements or any financial or statistical data, or as
to the information relating to the Acquiring Fund, contained in the
Prospectus and Proxy Statement or Registration Statement, and that such
opinion is solely for the benefit of the Evergreen Trust and the Acquiring
Fund. Such opinion shall contain such other assumptions and limitations as
shall be in the opinion of Xxxxx & XxXxxxxx appropriate to render the
opinions expressed therein and shall indicate, with respect to matters of
Massachusetts law, that as Xxxxx & XxXxxxxx are not admitted to the bar of
Massachusetts, such opinions are based either upon the review of published
statutes, case cases and rules and regulations of the Commonwealth of
Massachusetts or upon an opinion of Massachusetts counsel.
In this paragraph 7.3, references to Prospectus and Proxy Statement
include and relate to only the text of such Prospectus and Proxy Statement
and not to any exhibits or attachments thereto or to any documents
incorporated by reference therein.
7.4 The merger between First Union Corporation and First Fidelity
Bancorporation shall be completed prior to the Closing Date.
ARTICLE VIII
FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND
THE SELLING FUND
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Selling Fund or the Acquiring Fund, the
other party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the holders of the outstanding shares of
the Selling Fund in accordance with the provisions of the FFB Trust's
Declaration of Trust and By-Laws and certified copies of the resolutions
evidencing such approval shall have been delivered to the Acquiring Fund.
Notwithstanding anything herein to the contrary, neither the Acquiring Fund
nor the Selling Fund may waive the conditions set forth in this paragraph
8.1;
8.2 On the Closing Date, the Commission shall not have issued an
unfavorable report under Section 25(b) of the 1940 Act, nor instituted any
proceeding seeking to enjoin the consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940 Act and no
action, suit or other proceeding shall be threatened or pending before any
court or governmental agency in which it is sought to restrain or prohibit,
or obtain damages or other relief in connection with, this Agreement or the
transactions contemplated herein;
8.3 All required consents of other parties and all other consents, orders
and permits of Federal, state and local regulatory authorities (including
those of the Commission and of state Blue Sky securities authorities.
including any necessary "no-action" positions of and exemptive orders from
such Federal and state authorities) to permit consummation of the
transactions contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not involve a
risk of a material adverse effect on the assets or properties of the
Acquiring Fund or the Selling Fund, provided that either party hereto may
for itself waive any of such conditions;
8.4 The Registration Statement shall have become effective under the 1933
Act and no stop orders suspending the effectiveness thereof shall have been
issued and, to the best knowledge of the parties hereto, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 1933 Act;
8.5 The Selling Fund shall have declared a dividend or dividends which,
together with all previous such dividends, shall have the effect of
distributing to the Selling Fund Shareholders all of the Selling Fund's
investment company taxable income for all taxable years ending on or prior
to the Closing Date (computed without regard to any deduction for dividends
paid) and all of its net capital gain realized in all taxable years ending
on or prior to the Closing Date (after reduction for any capital loss
carryforward);
8.6 The parties shall have received a favorable opinion of Xxxxxxxx &
Worcester, addressed to the Acquiring Fund and the Selling Fund
substantially to the effect that for Federal income tax purposes:
(a) The transfer of substantially all of the Selling Fund assets in
exchange for the Acquiring Fund Shares and the assumption by the Acquiring
Fund of certain identified liabilities of the Selling Fund followed by the
distribution of the Acquiring Fund Shares to the Selling Fund in
dissolution and liquidation of the Selling Fund, will constitute a
"reorganization" within the meaning of Section 368(a)(1)(C) of the Code and
the Acquiring Fund and the Selling Fund will each be a "party to a
reorganization" within the meaning of Section 368(b) of the Code; (b) no
gain or loss will be recognized by the Acquiring Fund upon the receipt of
the assets of the Selling Fund solely in exchange for the Acquiring Fund
Shares and the assumption by the Acquiring Fund of certain identified
liabilities of the Selling Fund; (c) no gain or loss will be recognized by
the Selling Fund upon the transfer of the Selling Fund assets to the
Acquiring Fund in exchange for the Acquiring Fund Shares and the assumption
by the Acquiring Fund of certain identified liabilities of the Selling Fund
or upon the distribution ( whether actual or constructive ) of the
Acquiring Fund Shares to Selling Fund Shareholders in exchange for their
shares of the Selling Fund; (d) no gain or loss will be recognized by
Selling Fund Shareholders upon the exchange of their Selling Fund shares
for the Acquiring Fund Shares in liquidation of the Selling Fund; (e) the
aggregate tax basis for the Acquiring Fund Shares received by each Selling
Fund Shareholder pursuant to the Reorganization will be the same as the
aggregate tax basis of the Selling Fund shares held by such shareholder
immediately prior to the Reorganization, and the holding period of the
Acquiring Fund Shares to be received by each Selling Fund Shareholder will
include the period during which the Selling Fund shares exchanged therefor
were held by such shareholder (provided the Selling Fund shares were held
as capital assets on the date of the Reorganization); and (f) the tax basis
of the Selling Fund assets acquired by the Acquiring Fund will be the same
as the tax basis of such assets to the Selling Fund immediately prior to
the Reorganization, and the holding period of the assets of the Selling
Fund in the hands of the Acquiring Fund will include the period during
which those assets were held by the Selling Fund. Notwithstanding anything
herein to the contrary, neither the Acquiring Fund nor the Selling Fund may
waive the conditions set forth in this paragraph 8.6.
8.7 The Acquiring Fund shall have received from KPMG Peat Marwick LLP a
letter addressed to the Acquiring Fund, in form and substance satisfactory
to the Acquiring Fund, to the effect that (i) they are independent
certified public accountants with respect to the Selling Fund within the
meaning of the 1933 Act and the applicable published rules and regulations
thereunder; (ii) on the basis 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) consisting of a
reading of any unaudited pro forma financial statements included in the
Registration Statement and Prospectus and Proxy Statement, and inquiries of
appropriate officials of the FFB Trust responsible for financial and
accounting matters, nothing came to their attention which caused them to
believe that such unaudited pro forma financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder; or (iii) on the basis 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), the Capitalization
Table appearing in the Registration Statement and Prospectus and Proxy
Statement, has been obtained from and is consistent with the accounting
records of the Selling Fund; (iv) on the basis 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), the
pro forma financial statements which are included in the Registration
Statement and Prospectus and Proxy Statement, were prepared based on the
valuation of the Selling Fund's assets in accordance with the Evergreen
Trust's Declaration of Trust and the Acquiring Fund's then current
prospectus and statement of additional information pursuant to procedures
customarily utilized by the Acquiring Fund in valuing its own assets (such
procedures having been previously described to KPMG Peat Marwick LLP in
writing by the Acquiring Fund); and (v) on the basis 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) the
data utilized in the calculations of the projected expense ratio appearing
in the Registration Statement and Prospectus and Proxy Statement agree with
underlying accounting records of the Selling Fund or to written estimates
by Selling Fund's management and were found to be mathematically correct.
In addition, the Acquiring Fund shall have received from KPMG Peat
Marwick LLP a letter addressed to the Acquiring Fund dated on the Closing
Date, in form and substance satisfactory to the Acquiring Fund, to the
effect that on the basis of limited procedures agreed upon by the Acquiring
Fund (but not an examination in accordance with generally accepted auditing
standards) the calculation of net asset value per share of the Selling Fund
as of the Valuation Date was determined in accordance with generally
accepted accounting practices and the portfolio valuation practices of the
Acquiring Fund.
8.8 The Selling Fund shall have received from KPMG Peat Marwick LLP a
letter addressed to the Selling Fund, in form and substance satisfactory to
the Selling Fund, to the effect that (i) they are independent certified
public accountants with respect to the Acquiring Fund within the meaning of
the 1933 Act and the applicable published rules and regulations thereunder;
(ii) on the basis of limited procedures agreed upon by the Selling Fund and
described in such letter (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of any
unaudited pro forma financial statements included in the Registration
Statement and Prospectus and Proxy Statement, and inquiries of appropriate
officials of the Evergreen Trust responsible for financial and accounting
matters, nothing came to their attention which caused them to believe that
such unaudited pro forma financial statements do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder; (iii) on the
basis of limited procedures agreed upon by the Selling Fund and described
in such letter (but not an examination in accordance with generally
accepted auditing standards), the Capitalization Table appearing in the
Registration Statement and Prospectus and Proxy Statement, has been
obtained from and is consistent with the accounting records of the
Acquiring Fund; and (iv) on the basis of limited procedures agreed upon by
the Selling Fund (but not an examination in accordance with generally
accepted auditing standards) the data utilized in the calculations of the
projected expense ratio appearing in the Registration Statement and
Prospectus and Proxy Statement agree with underlying accounting records of
the Acquiring Fund or to written estimates by each Fund's management and
were found to be mathematically correct.
8.9 The Acquiring Fund and the Selling Fund shall also have received from
KPMG Peat Marwick LLP a letter addressed to the Acquiring Fund and the
Selling Fund, dated on the Closing Date in form and substance satisfactory
to the Funds, setting forth the Federal income tax implications relating to
capital loss carryforwards (if any) of the Selling Fund and the related
impact, if any, of the proposed transfer of all or substantially all of the
assets of the Selling Fund to the Acquiring Fund and the ultimate
dissolution of the Selling Fund, upon the shareholders of the Selling Fund.
ARTICLE IX
BROKERAGE FEES AND EXPENSES
9.1 The Acquiring Fund and the Selling Fund each represents and warrants to
the other that there are no brokers or finders entitled to receive any
payments in connection with the transactions provided for herein.
9.2 Except as otherwise provided for herein, all expenses of the
transactions contemplated by this Agreement incurred by the Selling Fund
and the Acquiring Fund will be borne by First Union National Bank of North
Carolina ("FUNB"). Such expenses include, without limitation, (i)
expenses incurred in connection with the entering into and the carrying out
of the provisions of this Agreement; (ii) expenses associated with the
preparation and filing of the Registration Statement under the 1933 Act
covering the Acquiring Fund Shares to be issued pursuant to the provisions
of this Agreement; (iii) registration or qualification fees and expenses of
preparing and filing such forms as are necessary under applicable state
securities laws to qualify the Acquiring Fund Shares to be issued in
connection herewith in each state in which the Selling Fund Shareholders
are resident as of the date of the mailing of the Prospectus and Proxy
Statement to such shareholders; (iv) postage; (v) printing; (vi) accounting
fees; (vii) legal fees; and (viii) solicitation cost of the transaction.
Not withstanding Notwithstanding the foregoing, the Acquiring Fund shall
pay its own Federal and state registration fees. In the event that the
merger of First Fidelity Bancorporation and First Union Corporation is not
completed, this Agreement shall terminate. In such event, all expenses of
the transactions contemplated by this Agreement incurred by the Acquiring
Fund will be borne by FUNB and all expenses of the transactions
contempleted contemplated by this Agreement incurred by the Selling Fund
will be borne by First Fidelity Bank, N.A.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Acquiring Fund and the Selling Fund agree that neither party has
made any representation, warranty or covenant not set forth herein and that
the this Agreement constitutes the entire agreement between the parties.
10.2 The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder.
ARTICLE XI
TERMINATION
11.1 In addition to the termination provisions set forth in paragraph 9.2,
this Agreement may be terminated by the mutual agreement of the Acquiring
Fund and the Selling Fund. In addition, either the Acquiring Fund or the
Selling Fund may at its option terminate this Agreement at or prior to the
Closing Date because:
(a) of a breach by the other of any representation, warranty or agreement
contained herein to be performed at or prior to the Closing Date, if not
cured within 30 days; or
(b) a condition herein expressed to be precedent to the obligations of the
terminating party has not been met and it reasonably appears that it will
not or cannot be met.
11.2 In the event of any such termination, in the absence of willful
default, there shall be no liability for damages on the part of either the
Acquiring Fund or the Selling Fund, the Evergreen Trust or the FFB Trust or
their respective Trustees or officers, to the other party or its, Trustees
or officers, but each shall bear the expenses incurred by it incidental to
the preparation and carrying out of this Agreement as provided in paragraph
9.2.
ARTICLE XII
AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of the
Selling Fund and the Acquiring Fund; provided, however, that following the
meeting of the Selling Fund Shareholders called by the FFB Trust pursuant
to paragraph 5.2 of this Agreement, no such amendment may have the effect
of changing the provisions for determining the number of the Acquiring Fund
Shares to be issued to the Selling Fund Shareholders under this Agreement
to the detriment of such shareholders without their further approval.
ARTICLE XIII
NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
prepaid telegraph, telecopy, overnight courier or certified mail addressed
to:
the Acquiring Fund
Evergreen Investment Trust
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxx, Esq.
or to the Selling Fund
FFB Funds Trust
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
ARTICLE XIV
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF
LIABILITY
14.1 The Article and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
14.3 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
14.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by
any party without the written consent of the other party. Nothing herein
expressed or implied is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties hereto and
their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
14.5 It is expressly agreed to that the obligations of the Selling Fund and
the Acquiring Fund hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents, or employees of the FFB Trust or
the Evergreen Trust, personally, but bind only the trust property of the
Selling Fund and the Acquiring Fund, as provided in the Declarations of
Trust of the FFB Trust and the Evergreen Trust. The execution and delivery
of this Agreement have been authorized by the Trustees of the FFB Trust on
behalf of the Selling Fund, and the Evergreen Trust on behalf of the
Acquiring Fund and signed by authorized officers of the FFB Trust and the
Evergreen Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officers shall be deemed
to have been made by any of them individually or to impose any liability on
any of them personally, but shall bind only the trust property of the FFB
Trust and the Evergreen Trust as provided in their Declarations of Trust.
IN WITNESS WHEREOF, the parties have duly executed and sealed this
Agreement, all as of the date first written above.
EVERGREEN INVESTMENT TRUST
on behalf of Evergreen Treasury Money Market Fund
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
(Seal)
FFB FUNDS TRUST
on behalf of FFB U.S. Government Fund
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
