Exhibit (4)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as of
March 9, 2005, by and between Xxxxxx Xxxxxx Government Securities Fund (the
"Acquired Fund"), a series of CDC Nvest Funds Trust I, a Massachusetts business
trust (the "Trust"), and Xxxxxx Xxxxxx Limited Term Government and Agency Fund
(the "Acquiring Fund"), a series of Xxxxxx Xxxxxx Funds II, a Massachusetts
business trust (the "Xxxxxx Trust").
PLAN OF REORGANIZATION
(a) The Acquired Fund shall sell, assign, convey, transfer and deliver to
the Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets, subject to liabilities. In consideration therefor, the
Acquiring Fund shall, on the Exchange Date, assume all of the liabilities of the
Acquired Fund existing at the Valuation Time (as defined in Section 3(c)) and
deliver to the Acquired Fund a number of full and fractional Class A, Class B
and Class Y shares of beneficial interest of the Acquiring Fund (the "Merger
Shares") having an aggregate net asset value equal to the value of the assets of
the Acquired Fund transferred to the Acquiring Fund on such date less the value
of the liabilities of the Acquired Fund assumed by the Acquiring Fund on that
date. It is intended that the reorganization described in this Agreement shall
be a reorganization within the meaning of Section 368 of the Internal Revenue
Code of 1986, as amended and in effect from time to time (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of
this Plan of Reorganization, the Acquired Fund shall distribute the Merger
Shares in complete liquidation to its shareholders of record as of the Exchange
Date, each shareholder being entitled to receive that proportion of Merger
Shares of each class (consisting in the case of each shareholder of Merger
Shares of the same designated class as the shares of the Acquired Fund which
that shareholder holds) which the number of shares of that class of the Acquired
Fund held by such shareholder bears to the total number of shares of that class
of the Acquired Fund outstanding on such date. Certificates representing the
Merger Shares will not be issued. All issued and outstanding shares of the
Acquired Fund will simultaneously be cancelled on the books of the Acquired
Fund.
(c) As soon as practicable following the liquidation of the Acquired Fund
as aforesaid, the Acquired Fund shall be dissolved pursuant to the provisions of
the Agreement and Declaration of Trust of the Trust, as amended, and applicable
law, and its legal existence terminated. Any reporting responsibility of the
Acquired Fund is and shall remain the responsibility of the Acquired Fund up to
and including the Exchange Date and, if applicable, such later date on which the
Acquired Fund is dissolved.
AGREEMENT
The Xxxxxx Trust, on behalf of the Acquiring Fund, and the Trust, on behalf
of the Acquired Fund, agree as follows:
1. Representations, Warranties and Agreements of the Acquiring Fund. The
Xxxxxx Trust, and not the individual Trustees and officers thereof, on
behalf of the Acquiring Fund, represents and warrants to and agrees with
the Acquired Fund that:
a. The Acquiring Fund is a series of shares of the Xxxxxx Trust, a
Massachusetts business trust duly established and validly existing
under the laws of the Commonwealth of Massachusetts, and has power to
own all of its properties and assets and to carry out its obligations
under this Agreement. The Xxxxxx Trust is qualified as a foreign
association in every jurisdiction where required, except to the extent
that failure to so qualify would not have a material adverse effect on
the Xxxxxx Trust. Each of the Xxxxxx Trust and the Acquiring Fund has
all necessary federal, state and local authorizations to carry on its
business as now being conducted and to carry out this Agreement.
b. The Xxxxxx Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management
investment company, and such registration has not been revoked or
rescinded and is in full force and effect.
c. A statement of assets and liabilities, statement of operations,
statement of changes in net assets and a portfolio of investments
(indicating their market values) of the Acquiring Fund as of and for
the period ended September 30, 2004 have been furnished to the
Acquired Fund prior to the Exchange Date. Such statement of assets and
liabilities and schedule fairly present the financial position of the
Acquiring Fund as of such date and said statements of operations and
changes in net assets fairly reflect the results of its operations and
changes in net assets for the periods covered thereby in conformity
with generally accepted accounting principles.
d. Since September 30, 2004, there has not been any material adverse
change in the Acquiring Fund's financial condition, assets,
liabilities or business (other than changes occurring in the ordinary
course of business), or any incurrence by the Acquiring Fund of
indebtedness. For the purposes of this subparagraph (d), distributions
of net investment income and net realized capital gains, changes in
portfolio securities, changes in the market value of portfolio
securities or net redemptions shall be deemed to be in the ordinary
course of business.
e. The Xxxxxx Trust is not in violation in any material respect of any
provisions of its Agreement and Declaration of Trust or By-Laws or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which the Xxxxxx Trust is a party or by which the
Acquiring Fund is bound, and the execution, delivery and performance
of this Agreement will not result in any such violation.
f. The prospectuses and statement of additional information of the
Acquiring Fund, each dated February 1, 2005, and each as from time to
time amended or supplemented
(collectively, the "Acquiring Fund Prospectus"), previously furnished
to the Acquired Fund, (i) conform in all material respects to the
applicable requirements of the Securities Act of 1933, as amended (the
"1933 Act"), and (ii) did not as of such date and do not contain, with
respect to the Xxxxxx Trust or the Acquiring Fund, any untrue
statements of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
g. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the Xxxxxx Trust or the Acquiring
Fund, threatened against the Xxxxxx Trust or the Acquiring Fund, which
assert liability on the part of the Xxxxxx Trust or the Acquiring
Fund. Neither the Xxxxxx Trust nor the Acquiring Fund knows of any
facts which might form the basis for the institution of such
proceedings and is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body which
materially and adversely affects its business or its ability to
consummate the transactions herein contemplated.
h. The Acquiring Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that will be shown as
belonging to it on its statement of assets and liabilities as of
September 30, 2004, and those incurred in the ordinary course of
business as an investment company since such date. Prior to the
Exchange Date, the Acquiring Fund will quantify and reflect on its
balance sheet all of its material known liabilities and will advise
the Acquired Fund of all material liabilities, contingent or
otherwise, incurred by it subsequent to September 30, 2004, whether or
not incurred in the ordinary course of business.
i. As of the Exchange Date, the Acquiring Fund will have filed all
federal and other tax returns and reports (giving effect to
extensions) which, to the knowledge of the officers of the Xxxxxx
Trust, are required to be filed by the Acquiring Fund and has paid or
will pay all federal and other taxes shown to be due on said returns
or on any assessments received by the Acquiring Fund. All tax
liabilities of the Acquiring Fund have been adequately provided for on
its books, and no tax deficiency or liability of the Acquiring Fund
has been asserted, and no question with respect thereto has been
raised or is under audit, by the Internal Revenue Service or by any
state, local or other tax authority for taxes in excess of those
already paid.
j. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the
Acquiring Fund of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), the 1940 Act and
state securities or blue sky laws (which term as used herein shall
include the laws of the District of Columbia and of Puerto Rico).
k. There are no material contracts outstanding to which the Acquiring
Fund is a party, other than as are or will be disclosed in the
Registration Statement or the Acquired Fund Proxy Statement (each as
defined in Section 1(r) herein) or the Acquiring Fund Prospectus.
l. To the best of its knowledge, all of the issued and outstanding shares
of beneficial interest of the Acquiring Fund have been offered for
sale and sold in conformity with all applicable federal and state
securities laws (including any applicable exemptions therefrom), or
the Acquiring Fund has taken any action necessary to remedy any prior
failure to have offered for sale and sold such shares in conformity
with such laws.
m. The Acquiring Fund qualifies and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company"
under Subchapter M of the Code.
n. The issuance of the Merger Shares pursuant to this Agreement will be
in compliance with all applicable federal and state securities laws.
o. The Merger Shares to be issued to the Acquired Fund have been duly
authorized and, when issued and delivered pursuant to this Agreement,
will be legally and validly issued Class A, Class B and Class Y shares
of beneficial interest in the Acquiring Fund and will be fully paid
and, except as set forth in the Registration Statement, nonassessable
by the Acquiring Fund, and no shareholder of the Acquiring Fund will
have any preemptive right of subscription or purchase in respect
thereof.
p. All issued and outstanding shares of the Acquiring Fund are, and at
the Exchange Date will be, duly and validly issued and outstanding,
fully paid and, except as set forth in the Registration Statement,
nonassessable by the Acquiring Fund. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any of the Acquiring Fund shares, nor is there outstanding
any security convertible into any of the Acquiring Fund shares, except
that Class B shares of the Acquiring Fund are convertible into Class A
shares of the Acquiring Fund in the manner and on the terms described
in the Acquiring Fund Prospectus and the Registration Statement.
q. The Acquiring Fund's investment operations from inception to the date
hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the
Acquiring Fund Prospectus and the Registration Statement.
r. The registration statement on Form N-14 (the "Registration Statement")
filed with the Securities and Exchange Commission (the "Commission")
by the Xxxxxx Trust on behalf of the Acquiring Fund and relating to
the Merger Shares issuable hereunder, and the proxy statement of the
Acquired Fund relating to the meeting of the Acquired Fund's
shareholders referred to in Section 7 herein (together with the
documents incorporated therein by reference, the "Acquired Fund Proxy
Statement"), on the effective date of the Registration Statement (i)
complied in all material respects with the provisions of the 1933 Act,
the 1934 Act and the 1940 Act and the rules and regulations thereunder
and (ii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and at the
time of the shareholders' meeting referred to in Section 7 and on the
Exchange Date, the prospectus which is contained in the Registration
Statement, as amended or supplemented by any amendments or supplements
filed with the Commission by the Xxxxxx Trust, and the Acquired Fund
Proxy Statement did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that none of the representations and warranties in
this subparagraph (r) shall apply to statements in or omissions from
the Registration Statement or the Acquired Fund Proxy Statement made
in reliance upon and in conformity with information furnished by the
Acquired Fund for use in the Registration Statement or the Acquired
Fund Proxy Statement.
2. Representations, Warranties and Agreements of the Acquired Fund. The Trust,
and not the individual Trustees and officers thereof, on behalf of the
Acquired Fund, represents and warrants to and agrees with the Acquiring
Fund that:
a. The Acquired Fund is a series of shares of the Trust, a Massachusetts
business trust duly established and validly existing under the laws of
the Commonwealth of Massachusetts, and has power to own all of its
properties and assets and to carry out this Agreement. The Trust is
qualified as a foreign association in every jurisdiction where
required, except to the extent that failure to so qualify would not
have a material adverse effect on the Trust. Each of the Trust and the
Acquired Fund has all necessary federal, state and local
authorizations to own all of its properties and assets and to carry on
its business as now being conducted and to carry out this Agreement.
b. The Trust is registered under the 1940 Act as an open-end management
investment company, and such registration has not been revoked or
rescinded and is in full force and effect.
c. A statement of assets and liabilities, statement of operations,
statement of changes in net assets and a schedule of investments
(indicating their market values) of the Acquired Fund as of and for
the period ended September 30, 2004 have been furnished to the
Acquiring Fund prior to the Exchange Date. Such statement of assets
and liabilities and schedule fairly present the financial position of
the Acquired Fund as of such date and said statements of operations
and changes in net assets fairly reflect the results of its operations
and changes in net assets for the periods covered thereby in
conformity with generally accepted accounting principles.
d. Since September 30, 2004, there has not been any material adverse
change in the Acquired Fund's financial condition, assets, liabilities
or business (other than changes occurring in the ordinary course of
business), or any incurrence by the Acquired Fund of indebtedness,
except as disclosed in writing to the Acquiring Fund. For the purposes
of this subsection (d) and of Section 9(a) of this Agreement,
distributions of net investment income and net realized capital gains,
changes in portfolio securities, changes in the market value of
portfolio securities or net redemptions shall be deemed to be in the
ordinary course of business.
e. The Trust is not in violation in any material respect of any provision
of its Agreement and Declaration of Trust or By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking
to which the Trust is a party or by which the Acquired Fund is bound,
and the execution, delivery and performance of this Agreement will not
result in any such violation.
f. The prospectuses and the statement of additional information of the
Acquired Fund, each dated February 1, 2005, and each as from time to
time amended or supplemented (collectively, the "Acquired Fund
Prospectus"), previously furnished to the Acquiring Fund (i) conform
in all material respects to the applicable requirements of the 1933
Act and (ii) did not contain as of such date and do not contain, with
respect to the Trust and the Acquired Fund, any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
g. The Acquired Fund's investment operations from inception to the date
hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the
Acquired Fund Prospectus.
h. At the Exchange Date, the Trust, on behalf of the Acquired Fund, will
have good and marketable title to its assets to be transferred to the
Acquiring Fund pursuant to this Agreement and will have full right,
power and authority to sell, assign, transfer and deliver the
Investments (as defined below) and any other assets and liabilities of
the Acquired Fund to be transferred to the Acquiring Fund pursuant to
this Agreement. At the Exchange Date, subject only to the delivery of
the Investments and any such other assets and liabilities and payment
therefor as contemplated by this Agreement, the Acquiring Fund will
acquire good and marketable title thereto and will acquire the
Investments and any such other assets and liabilities subject to no
encumbrances, liens or security interests whatsoever and without any
restrictions upon the transfer thereof, except as previously disclosed
in writing to the Acquiring Fund.
i. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the Trust or the Acquired Fund,
threatened against the Trust or the Acquired Fund, which assert
liability on the part of the Trust or the Acquired Fund. The Acquired
Fund knows of no facts which might form the basis for the institution
of such proceedings and is not a party to or subject to the provisions
of any order, decree or judgment of any court or governmental body
which materially and adversely affects its business or its ability to
consummate the transactions herein contemplated.
j. There are no material contracts outstanding to which the Acquired Fund
is a party, other than as are or will be disclosed in Acquired Fund
Prospectus, the registration statement on Form N-1A of the Acquired
Fund (the "Acquired Fund Registration Statement") or the Acquired Fund
Proxy Statement.
k. The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that are shown on the
Acquired Fund's statement of assets and liabilities as of September
30, 2004, referred to above and those incurred in the ordinary course
of its business as an investment company since such date. Prior to the
Exchange Date, the Acquired Fund will quantify and reflect on its
balance sheet all of its material known liabilities and will advise
the Acquiring Fund of all material liabilities, contingent or
otherwise, incurred by it subsequent to September 30, 2004, whether or
not incurred in the ordinary course of business.
l. As of the Exchange Date, the Acquired Fund will have filed all
required federal and other tax returns and reports (giving effect to
extensions) which, to the knowledge of the Trust's officers, are
required to have been filed by the Acquired Fund by such date and has
paid or will pay all federal and other taxes shown to be due on said
returns or on any assessments received by the Acquired Fund. All tax
liabilities of the Acquired Fund have been adequately provided for on
its books, and no tax deficiency or liability of the Acquired Fund has
been asserted, and no question with respect thereto has been raised or
is under audit, by the Internal Revenue Service or by any state, local
or other tax authority for taxes in excess of those already paid.
m. The Trust has and, at the Exchange Date, the Trust, on behalf of the
Acquired Fund, will have, full right, power and authority to sell,
assign, transfer and deliver the Investments (as defined below) and
any other assets and liabilities of the Acquired Fund to be
transferred to the Acquiring Fund pursuant to this Agreement. At the
Exchange Date, subject only to the delivery of the Investments and any
such other assets and liabilities as contemplated by this Agreement,
the Acquiring Fund will acquire the Investments and any such other
assets and liabilities subject to no encumbrances, liens or security
interests whatsoever and without any restrictions upon the transfer
thereof. As used in this Agreement, the term "Investments" shall mean
the Acquired Fund's investments shown on the schedule of its
investments as of September 30, 2004, referred to in Section 2(c)
hereof, as modified by such changes in the portfolio as the Acquired
Fund shall make, and changes resulting from stock dividends, stock
split-ups, mergers and similar corporate actions through the Exchange
Date.
n. No registration under the 1933 Act of any of the Investments would be
required if they were, as of the time of such transfer, the subject of
a public distribution by either of the Acquiring Fund or the Acquired
Fund, except as previously disclosed to the Acquiring Fund by the
Acquired Fund.
o. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the
Acquired Fund of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act, 1934 Act, the 1940
Act or state securities or blue sky laws.
p. The Acquired Fund qualifies and will at all times through the Exchange
Date qualify for taxation as a "regulated investment company" under
Subchapter M of the Code.
q. At the Exchange Date, the Acquired Fund will have sold such of its
assets, if any, as are necessary to assure that, after giving effect
to the acquisition of the assets of the Acquired Fund pursuant to this
Agreement, the Acquiring Fund will remain a "diversified company"
within the meaning of Section 5(b)(1) of the 1940 Act and in
compliance with such other mandatory investment restrictions as are
set forth in the Acquired Fund Prospectus, as amended through the
Exchange Date.
r. To the best of its knowledge, all of the issued and outstanding shares
of beneficial interest of the Acquired Fund have been offered for sale
and sold in conformity with all applicable federal and state
securities laws (including any applicable exemptions
therefrom), or the Acquired Fund has taken any action necessary to
remedy any prior failure to have offered for sale and sold such shares
in conformity with such laws.
s. All issued and outstanding shares of the Acquired Fund are, and at the
Exchange Date will be, duly and validly issued and outstanding, fully
paid and, except as set forth in the registration statement of the
Trust, non-assessable by the Acquired Fund. The Acquired Fund does not
have outstanding any options, warrants or other rights to subscribe
for or purchase any of the Acquired Fund shares, nor is there
outstanding any security convertible into any of the Acquired Fund
shares.
t. The Acquired Fund Proxy Statement, on the date of its filing (i)
complied in all material respects with the provisions of the 1933 Act,
the 1934 Act and the 1940 Act and the rules and regulations thereunder
and (ii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and at the
time of the shareholders' meeting referred to in Section 7 and on the
Exchange Date, the Acquired Fund Proxy Statement did not and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to
statements in or omissions from the Acquired Fund Proxy Statement made
in reliance upon and in conformity with information furnished by the
Acquiring Fund for use in the Acquired Fund Proxy Statement.
u. The Trust has no material contracts or other commitments (other than
this Agreement and such other contracts as may be entered into in the
ordinary course of its business) which if terminated may result in
material liability to the Acquired Fund (or to the Acquiring Fund as a
result of the transactions contemplated by this Agreement) or under
which (whether or not terminated) any material payments for periods
subsequent to the Exchange Date will be due from the Acquired Fund (or
from the Acquiring Fund as a result of the transactions contemplated
by this Agreement).
v. The information provided by the Acquired Fund for use in the
Registration Statement and Proxy Statement was accurate and complete
in all material respects when supplied and as of January 18, 2005
shall be accurate and complete in all material respects and shall
comply with federal securities and other laws and regulations
applicable thereto in all material respects.
3. Reorganization.
a. Subject to the requisite approval of the shareholders of the Acquired
Fund and to the other terms and conditions contained herein (including
the Acquired Fund's obligation (if any) to distribute to its
shareholders all of its investment company taxable income and net
capital gain as described in Section 8(j) hereof), the Acquired Fund
agrees to sell, assign, convey, transfer and deliver to the Acquiring
Fund, and the Acquiring Fund agrees to acquire from the Acquired Fund,
on the Exchange Date all of the Investments and all of the cash and
other properties and assets of the Acquired Fund, whether accrued or
contingent (including cash received by the Acquired Fund upon the
liquidation of the
Acquired Fund of any Acquired Fund investments designated by the
Acquiring Fund as being unsuitable for it to acquire pursuant to the
investment restrictions of the Acquiring Fund set forth in the
Acquiring Fund Prospectus and the Registration Statement), in exchange
for that number of shares of beneficial interest of the Acquiring Fund
provided for in Section 4 and the assumption by the Acquiring Fund of
all of the liabilities of the Acquired Fund, whether accrued or
contingent, existing at the Valuation Time except for the Acquired
Fund's liabilities, if any, arising in connection with this Agreement.
The Acquired Fund will, as soon as practicable after the Exchange
Date, distribute in complete liquidation all of the Merger Shares
received by it to the shareholders of the Acquired Fund in exchange
for their shares of the Acquired Fund.
b. The Acquired Fund will pay or cause to be paid to the Acquiring Fund
any interest, cash or such dividends, rights and other payments
received by it on or after the Exchange Date with respect to the
Investments and other properties and assets of the Acquired Fund,
whether accrued or contingent, received by it on or after the Exchange
Date. Any such distribution shall be deemed included in the assets
transferred to the Acquiring Fund at the Exchange Date and shall not
be separately valued unless the securities in respect of which such
distribution is made shall have gone "ex" such distribution prior to
the Valuation Time, in which case any such distribution which remains
unpaid at the Exchange Date shall be included in the determination of
the value of the assets of the Acquired Fund acquired by the Acquiring
Fund.
c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange
Date or such other time as may be mutually agreed upon in writing by
the parties hereto (the "Valuation Time").
4. Exchange Date; Valuation Time. On the Exchange Date, the Acquiring Fund
will deliver to the Acquired Fund a number of full and fractional Merger
Shares having an aggregate net asset value equal, in the case of each such
class of Merger Shares, to the value of the assets of the Acquired Fund
attributable to the same class of shares of the Acquired Fund on such date
less the value of the liabilities attributable to the same class of shares
of the Acquired Fund assumed by the Acquiring Fund on that date, determined
as hereinafter provided in this Section 4.
a. The net asset value of the Merger Shares to be delivered to the
Acquired Fund, the value of the assets attributable to the shares of
the Acquired Fund, and the value of the liabilities of the Acquired
Fund to be assumed by the Acquiring Fund, shall in each case be
determined as of the Valuation Time.
b. The net asset value of the Merger Shares shall be computed in the
manner set forth in the Acquiring Fund Prospectus. The value of the
assets and liabilities of the Acquired Fund shall be determined by the
Acquiring Fund, in cooperation with the Acquired Fund, pursuant to
procedures which the Acquiring Fund would use in determining the fair
market value of the Acquiring Fund's assets and liabilities.
c. No adjustment shall be made in the net asset value of either the
Acquired Fund or the Acquiring Fund to take into account differences
in realized and unrealized gains and losses.
d. The Acquiring Fund shall issue the Merger Shares to the Acquired Fund.
The Acquired Fund shall promptly distribute the Merger Shares to the
shareholders of the Acquired Fund by establishing open accounts for
each Acquired Fund shareholder on the transfer records of the
Acquiring Fund. Certificates representing Merger Shares will not be
issued to Acquired Fund shareholders.
e. The Acquiring Fund shall assume all liabilities of the Acquired Fund,
whether accrued or contingent, in connection with the acquisition of
assets and subsequent liquidation and dissolution of the Acquired Fund
or otherwise, except for the Acquired Fund's liabilities, if any,
arising pursuant to this Agreement.
5. Expenses, Fees, etc.
a. Except as otherwise provided in this Section 5, IXIS Asset Management
Advisors, L.P., by countersigning this Agreement, agrees that it will
bear any and all costs and expenses of the transaction incurred by the
Acquiring Fund and the Acquired Fund; provided, however, that the
Acquiring Fund and the Acquired Fund will each pay any brokerage
commissions, dealer xxxx-ups and similar expenses ("Portfolio
Expenses") that it may incur in connection with the purchases or sale
of portfolio securities; and provided further that, the Acquiring Fund
will pay all governmental fees required in connection with the
registration or qualification of the Merger Shares under applicable
state and federal laws.
b. In the event the transactions contemplated by this Agreement are not
consummated, then IXIS Asset Management Advisors, L.P. agrees that it
shall bear all of the costs and expenses (other than Portfolio
Expenses) incurred by both the Acquiring Fund and the Acquired Fund in
connection with such transactions.
c. Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not
consummated, neither the Acquiring Fund nor the Acquired Fund shall be
liable to the other for any damages resulting therefrom, including,
without limitation, consequential damages, except as specifically set
forth above.
d. Notwithstanding any of the foregoing, costs and expenses will in any
event be paid by the party directly incurring them if and to the
extent that the payment by another party of such costs and expenses
would result in the disqualification of such party as a "regulated
investment company" within the meaning of Subchapter M of the Code.
6. Exchange Date. Delivery of the assets of the Acquired Fund to be
transferred, assumption of the liabilities of the Acquired Fund to be
assumed, and delivery of the Merger Shares to be issued shall be made at
the offices of IXIS Asset Management Services Company, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, as of the close of business on
March 18, 2005, or at such other time and date agreed to by the Acquiring
Fund and the Acquired Fund, the date and time upon which such delivery is
to take place being referred to herein as the "Exchange Date."
7. Meeting of Shareholders; Dissolution.
a. The Trust, on behalf of the Acquired Fund, shall call a meeting of the
Acquired Fund's shareholders to take place after the effective date of
the Registration Statement for the purpose of considering the approval
of this Agreement.
b. The Acquired Fund agrees that the liquidation and dissolution of the
Acquired Fund will be effected in the manner provided in the Agreement
and Declaration of Trust of the Trust in accordance with applicable
law and that, after the Exchange Date, the Acquired Fund shall not
conduct any business except in connection with its liquidation and
dissolution.
c. The Acquiring Fund shall, after the preparation and delivery to the
Acquiring Fund by the Acquired Fund of a preliminary version of the
Acquired Fund Proxy Statement information, which shall be satisfactory
to the Acquiring Fund and to Ropes & Xxxx LLP for inclusion in the
Registration Statement, file the Registration Statement with the
Commission. Each of the Acquired Fund and the Acquiring Fund shall
cooperate with the other, and each will furnish to the other the
information relating to itself required by the 1933 Act, the 1934 Act
and the 1940 Act and the rules and regulations thereunder to be set
forth in the Registration Statement.
8. Conditions to the Acquiring Fund's Obligations. The obligations of the
Acquiring Fund hereunder shall be subject to the following conditions:
a. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement of the Acquired Fund's assets and liabilities, with values
determined as provided in Section 4 of this Agreement, together with a
list of Investments with their respective tax costs, all as of the
Valuation Time, certified on the Acquired Fund's behalf by the
President (or any Vice President) and Treasurer (or any Assistant
Treasurer) of the Trust, and a certificate of both such officers,
dated the Exchange Date, that there has been no material adverse
change in the financial position of the Acquired Fund since September
30, 2004, other than changes in the Investments and other assets and
properties since that date or changes in the market value of the
Investments and other assets of the Acquired Fund, or changes due to
dividends paid, and a certificate of both such officers representing
and warranting that there are no known liabilities, contingent or
otherwise, of the Acquired Fund required to be reflected on a balance
sheet (including notes thereto) in accordance with generally accepted
accounting principles as of September 30, 2004 and in the Acquired
Fund's statement of assets and liabilities as of the Valuation Time.
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the President (or any
Vice President) and Treasurer (or any Assistant Treasurer) of the
Trust certifying that as of the Exchange Date all representations and
warranties of the Acquired Fund made in this Agreement are true and
correct in all material respects as if made at and as of such date and
the Acquired Fund has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to such date.
c. That the Acquired Fund shall have delivered to the Acquiring Fund a
letter from the independent accountants of the Trust, dated the
Exchange Date, stating that such firm has employed certain procedures
whereby it has obtained schedules of the tax provisions and qualifying
tests for regulated investment companies and that, in the course of
such procedures, nothing came to their attention which caused them to
believe that the Acquired Fund (i) would not qualify as a regulated
investment company for federal, state, local or other income tax
purposes or (ii) would owe any federal, state or local income tax or
excise tax, in each case for both the taxable year ended September 30,
2004, and for any taxable year or period beginning on October 1, 2004
and ending on or prior to the Exchange Date (the latter period being
based on unaudited data).
d. That there shall not be any material litigation pending with respect
to the matters contemplated by this Agreement.
e. That the Acquiring Fund shall have received an opinion of Ropes & Xxxx
LLP, counsel to the Acquired Fund, dated the Exchange Date, to the
effect that (i) the Trust is a Massachusetts business trust duly
formed and validly existing under the laws of the Commonwealth of
Massachusetts, and the Acquired Fund is a separate series thereof duly
constituted in accordance with the applicable provisions of the 1940
Act and the Agreement and Declaration of Trust and By-Laws of the
Trust; (ii) this Agreement has been duly authorized, executed and
delivered by the Trust on behalf of the Acquired Fund and, assuming
that the Registration Statement, the Acquired Fund Prospectus and the
Acquired Fund Proxy Statement comply with the 1933 Act, the 1934 Act
and the 1940 Act and assuming due authorization, execution and
delivery of this Agreement by the Xxxxxx Trust on behalf of the
Acquiring Fund, is a valid and binding obligation of the Trust and the
Acquired Fund enforceable against the Trust and the Acquired Fund in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and other equitable
principles; (iii) the Trust, on behalf of the Acquired Fund, has power
to sell, assign, convey, transfer and deliver the assets contemplated
hereby and, upon consummation of the transactions contemplated hereby
in accordance with the terms of this Agreement, the Acquired Fund will
have duly sold, assigned, conveyed, transferred and delivered such
assets to the Acquiring Fund; (iv) the execution and delivery of this
Agreement did not, and the consummation of the transactions
contemplated hereby will not, violate the Agreement and Declaration of
Trust or By-Laws of the Trust, or any provision of any agreement known
to such counsel to which the Trust or the Acquired Fund is a party or
by which it is bound or, to the knowledge of such counsel, result in
the acceleration of any penalty under any agreement, judgment or
decree to which the Trust or the Acquired Fund is party or by which
either of them is bound, it being understood that with respect to
investment restrictions contained in the Agreement and Declaration of
Trust, By-Laws or then-current prospectuses or statement of additional
information of the Trust, such counsel may rely upon a certificate of
an officer of the Trust; (v) to the knowledge of such counsel, no
consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by the Trust on behalf of the Acquired
Fund of the transactions contemplated hereby, except such as have been
obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as
may be required under state securities or blue sky laws; (vi) the
Trust is registered with the Commission as an investment company under
the 1940 Act; and (vii) to the knowledge of such counsel, no
litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or threatened as
to the Trust or the Acquired Fund or any of their properties or assets
that challenges or seeks to prohibit, restrain or enjoin the
transactions contemplated by this Agreement.
f. That the Acquiring Fund shall have received an opinion of Ropes & Xxxx
LLP, dated the Exchange Date (which opinion would be based upon
certain factual representations and subject to certain
qualifications), to the effect that, on the basis of the existing
provisions of the Code, current administrative rules and court
decisions, for federal income tax purposes: (i) the transactions
contemplated by this Agreement will constitute a reorganization within
the meaning of Section 368(a) of the Code, and the Acquiring Fund and
the Acquired Fund will each be "a party to the reorganization" within
the meaning of Section 368(b) of the Code; (ii) under Section 1032 of
the Code, no gain or loss will be recognized by the Acquiring Fund
upon receipt of the Investments transferred to the Acquiring Fund
pursuant to this Agreement in exchange for the Merger Shares and the
assumption by the Acquiring Fund of the liabilities of the Acquired
Fund as contemplated in Section 3 hereof; (iii) under Section 362(b)
of the Code, the basis to the Acquiring Fund of the Investments will
be the same as the basis of the Investments in the hands of the
Acquired Fund immediately prior to such exchange; (iv) under Section
1223(2) of the Code, the Acquiring Fund's holding periods with respect
to the Investments will include the respective periods for which the
Investments were held by the Acquired Fund; and (v) the Acquiring Fund
will succeed to and take into account the items of the Acquired Fund
described in Section 381(c) of the Code, subject to the conditions and
limitations specified in Sections 381, 382, 383 and 384 of the Code
and the regulations thereunder.
g. That the assets of the Acquired Fund to be acquired by the Acquiring
Fund will include no assets which the Acquiring Fund, by reason of
charter limitations or of investment restrictions disclosed in the
Acquiring Fund Prospectus or the Registration Statement as in effect
on the Exchange Date, may not properly acquire.
h. That the Trust shall have received from the Commission and any
relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act,
the 1940 Act and any applicable state securities or blue sky laws in
connection with the transactions contemplated hereby, and that all
such orders shall be in full force and effect.
i. That all actions taken by the Trust on behalf of the Acquired Fund in
connection with the transactions contemplated by this Agreement and
all documents incidental thereto shall be satisfactory in form and
substance to the Acquiring Fund and Ropes & Xxxx LLP.
j. That, prior to the Exchange Date, the Acquired Fund shall have
declared a dividend or dividends which, together with all previous
such dividends, shall have the effect of distributing to the
shareholders of the Acquired Fund (i) all of the excess of (x) the
Acquired Fund's investment income excludable from gross income under
Section 103 of the Code over (y) the Acquired Fund's deductions
disallowed under Sections 265 and 171 of the Code, (ii) all of the
Acquired Fund's investment company taxable income as defined in
Section 852 of the Code, computed in each case without regard to any
deduction for dividends paid, and (iii) all of the Acquired Fund's net
capital gain realized (after reduction for any capital loss
carryover), in each case for both the taxable year ended on December
31, 2004, and for any taxable year or period beginning on January 1,
2005 and ending on or prior to the Exchange Date.
k. That the Acquired Fund shall have furnished to the Acquiring Fund a
certificate, signed by the President (or any Vice President) and the
Treasurer (or any Assistant Treasurer) of the Trust, as to the tax
cost to the Acquired Fund of the securities delivered to the Acquiring
Fund pursuant to this Agreement, together with any such other evidence
as to such tax cost as the Acquiring Fund may reasonably request.
l. That the Acquired Fund's custodian shall have delivered to the
Acquiring Fund a certificate identifying all of the assets of the
Acquired Fund held or maintained by such custodian as of the Valuation
Time.
m. That the Acquired Fund's transfer agent shall have provided to the
Acquiring Fund (i) the originals or true copies of all of the records
of the Acquired Fund in the possession of such transfer agent as of
the Exchange Date, (ii) a certificate setting forth the number of
shares of the Acquired Fund outstanding as of the Valuation Time, and
(iii) the name and address of each holder of record of any shares and
the number of shares held of record by each such shareholder.
n. That all of the issued and outstanding shares of beneficial interest
of the Acquired Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue sky laws
(including any applicable exemptions therefrom) and, to the extent
that any audit of the records of the Acquired Fund or its transfer
agent by the Acquiring Fund or its agents shall have revealed
otherwise, either (i) the Acquired Fund shall have taken all actions
that in the opinion of the Acquiring Fund or Ropes & Xxxx LLP are
necessary to remedy any prior failure on the part of the Acquired Fund
to have offered for sale and sold such shares in conformity with such
laws or (ii) the Acquired Fund shall have furnished (or caused to be
furnished) surety, or deposited (or caused to be deposited) assets in
escrow, for the benefit of the Acquiring Fund in amounts sufficient
and upon terms satisfactory, in the opinion of the Acquiring Fund or
Ropes & Xxxx LLP, to indemnify the Acquiring Fund against any expense,
loss, claim, damage or liability whatsoever that may be asserted or
threatened by reason of such failure on the part of the Acquired Fund
to have offered and sold such shares in conformity with such laws.
o. That the Acquiring Fund shall have received from the independent
accountants of the Trust a letter addressed to the Acquiring Fund,
dated as of the Exchange Date, satisfactory in form and substance to
the Acquiring Fund with respect to the performance
of limited procedures agreed upon by the Acquiring Fund and described
in such letter (but not an examination in accordance with generally
accepted auditing standards), as of the Valuation Time.
p. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of
the holders of the outstanding shares of beneficial interest of the
Acquired Fund entitled to vote.
q. That the Acquiring Fund shall have received an opinion of Ropes & Xxxx
LLP with respect to the matters specified in Section 9(f) of this
Agreement, and such other matters as the Acquiring Fund may reasonably
deem necessary or desirable.
r. That the Registration Statement shall have become effective under the
1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the Xxxxxx Trust or the
Acquiring Fund, threatened by the Commission.
9. Conditions to the Acquired Fund's Obligations. The obligations of the
Acquired Fund hereunder shall be subject to the following conditions:
a. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement of the Acquiring Fund's net assets, together with a list of
portfolio holdings with values determined as provided in Section 4,
all as of the Valuation Time, certified on the Acquiring Fund's behalf
by the President (or any Vice President) and Treasurer (or any
Assistant Treasurer) of the Xxxxxx Trust, and a certificate of both
such officers, dated the Exchange Date, to the effect that as of the
Valuation Time and as of the Exchange Date there has been no material
adverse change in the financial position of the Acquiring Fund since
September 30, 2004, other than changes occurring in the ordinary
course of business.
b. That the Xxxxxx Trust, on behalf of the Acquiring Fund, shall have
executed and delivered to the Acquired Fund an Assumption of
Liabilities dated as of the Exchange Date, pursuant to which the
Acquiring Fund will, in connection with the transactions contemplated
by this Agreement, assume all of the liabilities of the Acquired Fund
existing as of the Valuation Time, other than liabilities arising
pursuant to this Agreement.
c. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement, dated the Exchange Date, signed by the President (or any
Vice President) and Treasurer (or any Assistant Treasurer) of the
Xxxxxx Trust certifying that as of the Exchange Date all
representations and warranties of the Acquiring Fund made in this
Agreement are true and correct in all material respects as if made at
and as of such date, and that the Acquiring Fund has complied with all
of the agreements and satisfied all of the conditions on its part to
be performed or satisfied at or prior to such date.
d. That there shall not be any material litigation pending or threatened
with respect to the matters contemplated by this Agreement.
e. That the Acquired Fund shall have received an opinion of Ropes & Xxxx
LLP, counsel to the Acquiring Fund, dated the Exchange Date, to the
effect that (i) the Xxxxxx Trust is a Massachusetts business trust
duly formed and validly existing under the laws of the Commonwealth of
Massachusetts, and the Acquiring Fund is a separate series thereof
duly constituted in accordance with the applicable provisions of the
1940 Act and the Agreement and Declaration of Trust and By-Laws of the
Xxxxxx Trust; (ii) the Merger Shares to be delivered to the Acquired
Fund as provided for by this Agreement are duly authorized and upon
such delivery will be validly issued and will be fully paid and
nonassessable by Xxxxxx Trust and the Acquiring Fund and no
shareholder of the Acquiring Fund has any preemptive right to
subscription or purchase in respect thereof; (iii) this Agreement has
been duly authorized, executed and delivered by the Xxxxxx Trust on
behalf of the Acquiring Fund and, assuming that the Acquiring Fund
Prospectus, the Registration Statement and the Acquired Fund Proxy
Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and
assuming due authorization, execution and delivery of this Agreement
by the Trust on behalf of the Acquired Fund, is a valid and binding
obligation of the Xxxxxx Trust and the Acquiring Fund enforceable
against the Xxxxxx Trust and the Acquiring Fund in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and other equitable principles; (iv) the
execution and delivery of this Agreement did not, and the consummation
of the transactions contemplated hereby will not, violate the
Agreement and Declaration of Trust or By-Laws of the Xxxxxx Trust, or
any provision of any agreement known to such counsel to which the
Xxxxxx Trust or the Acquiring Fund is a party or by which it is bound
or, to the knowledge of such counsel, result in the acceleration of
any obligation or the imposition of any penalty under any agreement,
judgment or decree to which the Xxxxxx Trust or the Acquiring Fund is
party or by which either of them is bound, it being understood that
with respect to investment restrictions as contained in the Agreement
and Declaration of Trust, By-Laws or then-current prospectuses or
statement of additional information of the Xxxxxx Trust, such counsel
may rely upon a certificate of an officer of the Xxxxxx Trust; (v) to
the knowledge of such counsel, no consent, approval, authorization or
order of any court or governmental authority is required for the
consummation by the Xxxxxx Trust on behalf of the Acquiring Fund of
the transactions contemplated herein, except such as have been
obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as
may be required under state securities or blue sky laws; (vi) the
Xxxxxx Trust is registered with the Commission as an investment
company under the 1940 Act; and (vii) to the knowledge of such
counsel, no litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or
threatened as to the Xxxxxx Trust or the Acquiring Fund or any of
their properties or assets that challenges or seeks to prohibit,
restrain or enjoin the transactions contemplated by this Agreement.
f. That the Acquired Fund shall have received an opinion of Ropes & Xxxx
LLP, dated the Exchange Date (which opinion would be based upon
certain factual representations and subject to certain
qualifications), in form satisfactory to the Acquired Fund to the
effect that, on the basis of the existing provisions of the Code,
current administrative rules and court decisions, for federal income
tax purposes: (i) the transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a) of
the
Code, and the Acquiring Fund and the Acquired Fund will each be "a
party to the reorganization" within the meaning of Section 368(b) of
the Code; (ii) under Section 361 of the Code, no gain or loss will be
recognized by the Acquired Fund (x) upon the transfer of its assets to
the Acquiring Fund in exchange for the Merger Shares and the
assumption by the Acquiring Fund of the liabilities of the Acquired
Fund as contemplated in Section 3 hereof or (y) upon the distribution
of the Merger Shares to the shareholders of the Acquired Fund as
contemplated in Section 3 hereof; (iii) under Section 354 of the Code,
no gain or loss will be recognized by shareholders of the Acquired
Fund on the distribution of Merger Shares to them in exchange for
their shares of the Acquired Fund; (iv) under Section 358 of the Code,
the aggregate tax basis of the Merger Shares that the Acquired Fund's
shareholders receive in place of their Acquired Fund shares will be
the same as the aggregate tax basis of the Acquired Fund shares
surrendered in exchange therefor; and (v) under Section 1223(1) of the
Code, an Acquired Fund's shareholder's holding period for the Merger
Shares received pursuant to the Agreement will be determined by
including the holding period for the Acquired Fund shares exchanged
for the Merger Shares, provided that the shareholder held the Acquired
Fund shares as a capital asset.
g. That all actions taken by the Xxxxxx Trust on behalf of the Acquiring
Fund in connection with the transactions contemplated by this
Agreement and all documents incidental thereto shall be satisfactory
in form and substance to the Acquired Fund and Ropes & Xxxx LLP.
h. That the Xxxxxx Trust shall have received from the Commission and any
relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act,
the 1940 Act and any applicable state securities or blue sky laws in
connection with the transactions contemplated hereby, and that all
such orders shall be in full force and effect.
i. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of
the holders of the outstanding shares of beneficial interest of the
Acquired Fund entitled to vote.
j. That the Registration Statement on Form N-1A of the Xxxxxx Trust, with
respect to the Acquiring Fund, shall have become effective under the
1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the Xxxxxx Trust or the
Acquiring Fund, threatened by the Commission.
10. Indemnification.
a. The Acquired Fund shall indemnify and hold harmless, out of the assets
of the Acquired Fund but no other assets, the Xxxxxx Trust and the
Trustees and officers of the Xxxxxx Trust (for purposes of this
Section 10(a), the "Xxxxxx Trust Indemnified Parties") against any and
all expenses, losses, claims, damages and liabilities at any time
imposed upon or reasonably incurred by any one or more of the Xxxxxx
Trust Indemnified Parties in connection with, arising out of or
resulting from any claim, action, suit or proceeding in which any one
or more of the Xxxxxx Trust Indemnified Parties may be involved or
with
which any one or more of the Xxxxxx Trust Indemnified Parties may be
threatened by reason of any untrue statement or alleged untrue
statement of a material fact relating to the Trust or the Acquired
Fund contained in this Agreement, the Registration Statement, the
Acquired Fund Prospectus or the Acquired Fund Proxy Statement or any
amendment or supplement to any of the foregoing, or arising out of or
based upon the omission or alleged omission to state in any of the
foregoing a material fact relating to the Trust or the Acquired Fund
required to be stated therein or necessary to make the statements
relating to the Trust or the Acquired Fund therein not misleading,
including, without limitation, any amounts paid by any one or more of
the Xxxxxx Trust Indemnified Parties in a reasonable compromise or
settlement of any such claim, action, suit or proceeding, or
threatened claim, action, suit or proceeding made with the consent of
the Trust or the Acquired Fund. The Xxxxxx Trust Indemnified Parties
will notify the Trust and the Acquired Fund in writing within ten days
after the receipt by any one or more of the Xxxxxx Trust Indemnified
Parties of any notice of legal process or any suit brought against or
claim made against such Xxxxxx Trust Indemnified Party as to any
matters covered by this Section 10(a). The Acquired Fund shall be
entitled to participate at its own expense in the defense of any
claim, action, suit or proceeding covered by this Section 10(a), or,
if it so elects, to assume at its expense by counsel satisfactory to
the Xxxxxx Trust Indemnified Parties the defense of any such claim,
action, suit or proceeding, and if the Acquired Fund elects to assume
such defense, the Xxxxxx Trust Indemnified Parties shall be entitled
to participate in the defense of any such claim, action, suit or
proceeding at their expense. The Acquired Fund's obligation under this
Section 10(a) to indemnify and hold harmless the Xxxxxx Trust
Indemnified Parties shall constitute a guarantee of payment so that
the Acquired Fund will pay in the first instance any expenses, losses,
claims, damages and liabilities required to be paid by it under this
Section 10(a) without the necessity of the Xxxxxx Trust Indemnified
Parties' first paying the same.
b. The Acquiring Fund shall indemnify and hold harmless, out of the
assets of the Acquiring Fund but no other assets, the Trust and the
Trustees and officers of the Trust (for purposes of this Section
10(b), the "Trust Indemnified Parties") against any and all expenses,
losses, claims, damages and liabilities at any time imposed upon or
reasonably incurred by any one or more of the Trust Indemnified
Parties in connection with, arising out of, or resulting from any
claim, action, suit or proceeding in which any one or more of the
Trust Indemnified Parties may be involved or with which any one or
more of the Trust Indemnified Parties may be threatened by reason of
any untrue statement or alleged untrue statement of a material fact
relating to the Acquiring Fund contained in this Agreement, the
Registration Statement, the Acquiring Fund Prospectus or the Acquired
Fund Proxy Statement or any amendment or supplement to any thereof, or
arising out of, or based upon, the omission or alleged omission to
state in any of the foregoing a material fact relating to the Xxxxxx
Trust or the Acquiring Fund required to be stated therein or necessary
to make the statements relating to the Xxxxxx Trust or the Acquiring
Fund therein not misleading, including, without limitation, any
amounts paid by any one or more of the Trust Indemnified Parties in a
reasonable compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding made with
the consent of the Xxxxxx Trust or the Acquiring Fund. The Trust
Indemnified Parties will notify the Xxxxxx Trust and the Acquiring
Fund in writing
within ten days after the receipt by any one or more of the Trust
Indemnified Parties of any notice of legal process or any suit brought
against or claim made against such Trust Indemnified Party as to any
matters covered by this Section 10(b). The Acquiring Fund shall be
entitled to participate at its own expense in the defense of any
claim, action, suit or proceeding covered by this Section 10(b), or,
if it so elects, to assume at its expense by counsel satisfactory to
the Trust Indemnified Parties the defense of any such claim, action,
suit or proceeding, and, if the Acquiring Fund elects to assume such
defense, the Trust Indemnified Parties shall be entitled to
participate in the defense of any such claim, action, suit or
proceeding at their own expense. The Acquiring Fund's obligation under
this Section 10(b) to indemnify and hold harmless the Trust
Indemnified Parties shall constitute a guarantee of payment so that
the Acquiring Fund will pay in the first instance any expenses,
losses, claims, damages and liabilities required to be paid by it
under this Section 10(b) without the necessity of the Trust
Indemnified Parties' first paying the same.
11. No Broker, etc. Each of the Acquired Fund and the Acquiring Fund represents
that there is no person who has dealt with it or the Trust or the Xxxxxx
Trust, respectively, who, by reason of such dealings, is entitled to any
broker's or finder's or other similar fee or commission arising out of the
transactions contemplated by this Agreement.
12. Termination. The Acquired Fund and the Acquiring Fund may, by mutual
consent of the trustees on behalf of each Fund, terminate this Agreement,
and the Acquired Fund or the Acquiring Fund, after consultation with
counsel and by consent of its Trustees or an officer authorized by such
Trustees, may waive any condition to its respective obligations hereunder.
If the transactions contemplated by this Agreement have not been
substantially completed by September 30, 2005, this Agreement shall
automatically terminate on that date unless a later date is agreed to by
the Acquired Fund and the Acquiring Fund.
13. Covenants, etc. Deemed Material. All covenants, agreements, representations
and warranties made under this Agreement and any certificates delivered
pursuant to this Agreement shall be deemed to have been material and relied
upon by each of the parties, notwithstanding any investigation made by them
or on their behalf.
14. Rule 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund will,
in connection with the issuance of any Merger Shares to any person who at
the time of the transaction contemplated hereby is deemed to be an
affiliate of a party to the transaction pursuant to Rule 145(c), cause to
be affixed upon the certificates issued to such person (if any) a legend as
follows:
"THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT TO XXXXXX
XXXXXX LIMITED TERM GOVERNMENT AND AGENCY FUND OR ITS PRINCIPAL UNDERWRITER
UNLESS (i) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE FUND SUCH REGISTRATION IS NOT REQUIRED."
and, further, the Acquiring Fund will issue stop transfer instructions to the
Acquiring Fund's transfer agent with respect to such shares. The Acquired Fund
will provide the Acquiring Fund on the Exchange Date with the name of any
Acquired Fund shareholder who is to the knowledge of the Acquired Fund an
affiliate of the Acquired Fund on such date.
15. Sole Agreement; Amendments; Governing Law. This Agreement supersedes all
previous correspondence and oral communications between the parties
regarding the subject matter hereof, constitutes the only understanding
with respect to such subject matter, may not be changed except by a letter
of agreement signed by each party hereto, and shall be construed in
accordance with and governed by the laws of the Commonwealth of
Massachusetts.
16. Declaration of Trust.
a. A copy of the Agreement and Declaration of Trust of the Xxxxxx Trust
is on file with the Secretary of the Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Xxxxxx Trust on behalf of the Acquiring Fund as
trustees and not individually, and that the obligations of this
instrument are not binding upon any of the trustees, officers or
shareholders of the Xxxxxx Trust individually but are binding only
upon the assets and property of the Acquiring Fund.
b. A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of
the Trustees of the Trust on behalf of the Acquired Fund as trustees
and not individually, and that the obligations of this instrument are
not binding upon any of the trustees, officers or shareholders of the
Trust individually but are binding only upon the assets and property
of the Acquired Fund.
* * * *
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as a sealed instrument as of the day and year first above written.
CDC NVEST FUNDS TRUST I,
on behalf of its Xxxxxx Xxxxxx Government Securities Fund
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President
XXXXXX XXXXXX FUNDS II,
on behalf of its Xxxxxx Xxxxxx Limited Term Government and Agency Fund
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Agreed and accepted as to Section 5 only:
IXIS ASSET MANAGEMENT ADVISORS, L.P.
By: IXIS Asset Management Distribution Corporation, its general partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President and CEO
