AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of June 9, 2009
(the "Agreement"), between XXXXX & STEERS EUROPEAN REALTY SHARES, INC., a
Maryland corporation (the "Fund"), and XXXXX & STEERS INTERNATIONAL REALTY
FUND, INC., a Maryland corporation (the "Acquiring Fund").
This Agreement is intended to be and is adopted as a "plan of reorganization"
within the meaning of the regulations under Section 368(a) of the United States
Internal Revenue Code of 1986, as amended (the "Code"). The reorganization
will consist of the transfer of all of the assets of the Fund to the Acquiring
Fund in exchange solely for the Acquiring Fund's Class A, Class C and Class I
shares ("Acquiring Fund Shares") of common stock, par value $.001 per share,
and the assumption by the Acquiring Fund of the liabilities of the Fund as
described herein, and the distribution, after the Closing Date hereinafter
referred to, of the Acquiring Fund Shares to the shareholders of the Fund in
liquidation of the Fund as provided herein, all upon the terms and conditions
hereinafter set forth in this Agreement (the "Reorganization").
WHEREAS, the Fund is a registered, open-end management investment company, and
the Acquiring Fund is a registered, open-end management investment company, and
the Fund owns securities which are assets of the character in which the
Acquiring Fund is permitted to invest;
WHEREAS, both the Acquiring Fund and the Fund are authorized to issue their
shares of common stock;
WHEREAS, the Fund's Board has determined that the Reorganization is in the best
interests of the Fund and the Fund's shareholders and that the interests of the
Fund's existing shareholders will not be diluted as a result of the
Reorganization; and
WHEREAS, the Acquiring Fund's Board has determined that the Reorganization is
in the best interests of the Acquiring Fund and the Acquiring Fund's
shareholders and that the interests of the Acquiring Fund's existing
shareholders will not be diluted as a result of the Reorganization:
NOW THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties agree as follows:
1. THE REORGANIZATION.
1.1 Subject to the terms and conditions contained herein and on the basis of
the representations and warranties contained herein, the Fund agrees to assign,
transfer and convey to the Acquiring Fund all of the assets of the Fund, as set
forth in paragraph 1.2, free and clear of all liens, encumbrances and claims
whatsoever. The Acquiring Fund agrees in exchange therefor (a) to deliver to
the Fund the number of Acquiring Fund Shares, including fractional Acquiring
Fund Shares, determined as set forth in paragraph 2.3; and (b) to assume the
stated liabilities of the Fund, as set forth in paragraph 1.3. Such
transactions shall take place at the closing (the "Closing") as of the close of
business on the closing date (the "Closing Date"), provided for in paragraph
3.1. In lieu of delivering certificates for the Acquiring Fund Shares, the
Acquiring Fund shall credit the Acquiring Fund Shares to the Fund's account on
the books of the Acquiring Fund and shall deliver a confirmation thereof to the
Fund.
1.2 The assets of the Fund to be acquired by the Acquiring Fund shall consist
of all assets, including, without limitation, all portfolio securities, cash,
cash equivalents, commodities, interests in futures and other financial
instruments, claims (whether absolute or contingent, known or unknown),
receivables (including dividends or interest and other receivables) and other
property belonging to the Fund, and any deferred or prepaid expenses, reflected
on an unaudited statement of assets and liabilities of the Fund approved by
Xxxxx & Steers Capital Management, Inc. ("CSCM"), as of the Valuation Date (as
defined in paragraph 2.1), in accordance with U.S. generally accepted
accounting principles ("GAAP") consistently applied from the Fund's prior
audited period (the "Assets").
1.3 The Fund will endeavor to identify and, to the extent practicable,
discharge all of its known liabilities and obligations before the Closing Date.
The Acquiring Fund shall assume the liabilities, expenses, costs, charges and
reserves reflected on an unaudited statement of assets and liabilities of the
Fund approved by CSCM, as of the Valuation Date, in accordance with GAAP
consistently applied from the Fund's prior audited period. The Acquiring Fund
shall assume only those liabilities of the Fund reflected in that unaudited
statement of assets and liabilities and shall not assume any other liabilities,
whether absolute or contingent.
1.4 Delivery of the Fund's Assets shall be made on the Closing Date and shall
be delivered to State Street Bank and Trust Company, Xxx Xxxxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000, the Acquiring Fund's custodian (the "Custodian"), for the
account of the Acquiring Fund, with all securities not in bearer or book-entry
form duly endorsed, or accompanied by duly executed separate assignments or
stock powers, in proper form for transfer, with signatures guaranteed, and with
all necessary stock transfer stamps, sufficient to transfer good and marketable
title thereto (including all accrued interest and dividends and rights
pertaining thereto) to the Custodian for the account of the Acquiring Fund free
and clear of all liens, encumbrances, rights, restrictions and claims. All
cash delivered shall be in the form of immediately available funds payable to
the order of the Custodian for the account of the Acquiring Fund.
1.5 The Fund will pay or cause to be paid to the Acquiring Fund any dividends
and interest received on or after the Closing Date with respect to Assets
transferred to the Acquiring Fund hereunder. The Fund will transfer to the
Acquiring Fund any distributions, rights or other assets received by the Fund
after the Closing Date as distributions on or with respect to the securities
transferred. Such assets shall be deemed included in the Assets transferred to
the Acquiring Fund on the Closing Date and shall not be separately valued.
1.6 As soon after the Closing Date as is conveniently practicable, the Fund
will distribute pro rata to holders of record of the Fund's Class A shares,
Class C shares and Class I shares, determined as of the close of business on
the Closing Date ("Fund Shareholders"), Class A shares, Class C shares and
Class I shares, respectively, of the Acquiring Fund received by the Fund
pursuant to paragraph 1.1, and will completely liquidate and, promptly
thereafter, terminate and dissolve in accordance with applicable laws of the
State of Maryland and federal securities laws. Such distribution and
liquidation will be accomplished by the transfer of the Acquiring Fund Shares
then credited to the account of the Fund on the books of the Acquiring Fund to
open accounts on the share records of the Acquiring Fund in the names of the
Fund Shareholders and representing the respective pro rata number of the
applicable Acquiring Fund Shares due such shareholders. All issued and
outstanding shares of the Fund simultaneously will be redeemed and canceled on
the books of the Fund and will be null and void. Acquiring Fund Shares
distributed to Fund Shareholders will be reflected on the books of the
Acquiring Fund as uncertificated, book-entry shares; the Acquiring Fund will
not issue share certificates in the Reorganization.
1.7 Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's transfer agent. Acquiring Fund Shares will be issued in the
manner described in the Acquiring Fund's then-current prospectus and statement
of additional information.
1.8 Any transfer taxes payable upon issuance of the Acquiring Fund Shares
in a name other than the registered holder of the Acquiring Fund Shares on the
books of the Fund as of that time shall, as a condition of such issuance and
transfer, be paid by the person to whom such Acquiring Fund Shares are to be
issued and transferred.
1.9 Any reporting responsibility of the Fund, including the responsibility
for filing regulatory reports, tax returns, or other documents with the
Securities and Exchange Commission (the "Commission"), any state securities
commission, and any federal, state or local tax authorities or any other
relevant regulatory authority, is and shall remain the responsibility of the
Fund up to and including the Closing Date and such later date on which the
Fund's existence is terminated.
1.10 As soon as practicable after the Closing Date, the Fund shall provide
the Acquiring Fund with copies of all books and records that pertain to the
Fund that the Acquiring Fund is required to maintain under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules of the
Commission thereunder.
2. VALUATION.
2.1 The value of the Fund's Assets to be acquired, and the amount of the
Fund's liabilities to be assumed, by the Acquiring Fund hereunder shall be
computed as of the close of trading on the floor of the New York Stock Exchange
(usually 4:00 p.m., Eastern time) on the Closing Date (such time and date being
hereinafter called the "Valuation Date"), using the valuation procedures set
forth in the Acquiring Fund's Articles of Incorporation, as amended (the
"Acquiring Fund's Charter"), and the then-current prospectus or statement of
additional information of the Acquiring Fund, which are and shall be consistent
with the policies currently in effect for the Fund, or such other valuation
procedures as shall be mutually agreed upon by the parties hereto.
2.2 The net asset value of an Acquiring Fund Share shall be the net asset
value per share computed as of the Valuation Date, using the valuation
procedures set forth in the Acquiring Fund's Charter and the then-current
prospectus or statement of additional information of the Acquiring Fund, which
are and shall be consistent with the policies currently in effect for the Fund.
2.3 The number of Acquiring Fund Shares to be issued (including fractional
shares, if any) in exchange for the Fund's net assets shall be determined by
dividing the value of the net assets of the applicable class of the Fund
determined using the same valuation procedures referred to in paragraph 2.1 by
the net asset value of one Acquiring Fund Share of the corresponding class,
determined in accordance with paragraph 2.2.
2.4 All computations of value shall be made in accordance with the regular
practices of CSCM as fund accountant for the Fund and the Acquiring Fund.
3. CLOSING AND CLOSING DATE.
3.1 The Closing Date shall be [September 25], 2009, or such other date as
the parties, through their duly authorized officers, may mutually agree. All
acts taking place at the Closing shall be deemed to take place simultaneously
on the Closing Date unless otherwise provided. The Closing shall be held at
5:00 p.m., Eastern time, at the offices of CSCM, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, or such other time and/or place as the parties may mutually agree.
3.2 The Custodian shall deliver at the Closing a certificate of an
authorized officer stating that the Fund's Assets have been delivered in proper
form to the Acquiring Fund on the Closing Date. The Fund's portfolio
securities and instruments deposited with a securities depository (as defined
in Rule 17f-4 under the 0000 Xxx) or with a permitted counterparty or futures
commission merchant (as defined in Rule 17f-6 under the 0000 Xxx) shall be
delivered to the Custodian as of the Closing Date by book entry, in accordance
with the customary practices of the Custodian. The cash to be transferred by
the Fund shall be delivered to the Custodian for the account of the Acquiring
Fund by wire transfer of federal funds on the Closing Date.
3.3 If on the Valuation Date (a) the New York Stock Exchange or another
primary trading market for portfolio securities of the Acquiring Fund or the
Fund shall be closed to trading or trading thereon shall be restricted, or (b)
trading or the reporting of trading on said Exchange or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of the
Acquiring Fund or the Fund is impracticable, the Closing Date shall be
postponed until the first business day after the day when trading shall have
been fully resumed and reporting shall have been restored or such other date as
the parties hereto may agree.
3.4 The Fund's transfer agent shall deliver at the Closing a certificate of
an authorized officer stating that its records contain the names and addresses
of the Fund Shareholders and the number and percentage ownership of outstanding
shares owned by each such shareholder immediately prior to the Closing. The
Acquiring Fund's transfer agent shall issue and deliver to the Fund's Secretary
a confirmation evidencing the Acquiring Fund Shares to be credited on the
Closing Date, or provide evidence satisfactory to the Fund that such Acquiring
Fund Shares have been credited to the Fund's account on the books of the
Acquiring Fund.
3.5 At the Closing, each party shall deliver to the other such bills of
sale, checks, assignments, receipts or other documents as such other party or
its counsel may reasonably request.
3.6 If the Fund is unable to make delivery to the Custodian pursuant to
paragraph 3.2 of any of the Assets for the reason that any of such Assets have
not yet been delivered to the Fund by the Fund's broker, dealer or other
counterparty, then, in lieu of such delivery, the Fund shall deliver with
respect to said Assets executed copies of an agreement of assignment and due
bills executed on behalf of said broker, dealer or other counterparty, together
with such other documents as may be required by the Acquiring Fund or the
Custodian, including broker confirmation slips.
4. REPRESENTATIONS AND WARRANTIES.
4.1 The Fund represents and warrants to the Acquiring Fund as follows:
(a) The Fund is a corporation duly organized and validly existing under the
laws of the State of Maryland, and has power to carry out its obligations under
this Agreement.
(b) The Fund is registered under the 1940 Act as an open-end management
investment company, and the Fund's shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"), and such registrations have not been
revoked or rescinded and are in full force and effect. The Fund is in
compliance in all material respects with the 1940 Act and the rules and
regulations thereunder.
(c) The current prospectus and statement of additional information of the 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
materially misleading.
(d) The Fund is not, and the execution, delivery and performance of this
Agreement will not result, in material violation of the Fund's Articles of
Incorporation, as amended (the "Fund's Charter"), or its By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to which
the Fund is a party or by which the Fund is bound, nor will the execution,
delivery and performance of this Agreement by the Fund result in the
acceleration of any obligation, or the imposition of any penalty, under any
agreement, indenture, instrument, contract, lease or other undertaking to which
the Fund is a party or by which the Fund is bound.
(e) The Fund has no material contracts or other commitments that will be
terminated with liability to the Fund on or prior to the Closing Date.
(f) No consent, approval, authorization, or order of any court or governmental
authority is required for the consummation by the Fund of the transactions
contemplated herein, except as may be required under the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the 1940 Act
and by state securities laws.
(g) No litigation or administrative proceeding or investigation of or before
any court or governmental body is currently pending or to the Fund's knowledge
threatened against the Fund or any of the Fund's properties or assets which, if
adversely determined, would materially and adversely affect the Fund's
financial condition or the conduct of the Fund's business. The Fund knows of
no facts which might form the basis for the institution of such proceedings,
and is not a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially and adversely
affects the Fund's business or the Fund's ability to consummate the
transactions contemplated herein.
(h) The Statements of Assets and Liabilities, Statements of Operations,
Statements of Changes in Net Assets and Schedule of Portfolio Investments
(indicating their market values) of the Fund for each of the Fund's fiscal
years (or periods) ended December 31, 2008 since the inception of the Fund have
been audited by PricewaterhouseCoopers LLP, an independent registered public
accounting firm, and are in accordance with GAAP, consistently applied, and
such statements (copies of which have been furnished to the Acquiring Fund)
fairly reflect the financial condition of the Fund as of such dates, and there
are no known contingent liabilities of the Fund as of such dates not disclosed
therein.
(i) Since December 31, 2008, there has not been any material adverse change in
the Fund's financial condition, assets, liabilities or business other than
changes occurring in the ordinary course of business, or any incurrence by the
Fund of indebtedness maturing more than one year from the date such
indebtedness was incurred, except as disclosed on the statement of assets and
liabilities referred to in paragraphs 1.3 and 4.1(h) hereof.
(j) At the Closing Date, all federal and other tax returns and reports of the
Fund required by law then to be filed shall have been filed, and all federal
and other taxes shown as due on said returns and reports shall have been paid
so far as due, or provision shall have been made for the payment thereof, and
to the knowledge of the Fund no such return is currently under audit and no
assessment or deficiency has been asserted with respect to such returns.
(k) For each taxable year of its operation (including the taxable year ending
on the Closing Date), the Fund has met the requirements of Subchapter M of the
Code for qualification and treatment as a regulated investment company.
(l) All issued and outstanding shares of the Fund are, and at the Closing Date
will be, duly and validly issued and outstanding, fully paid and non-assessable
by the Fund. All of the issued and outstanding shares of the Fund will, at the
time of Closing, be held by the persons and in the amounts set forth in the
records of its transfer agent as provided in paragraph 3.4. The Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any of the Fund's shares, nor is there outstanding any security
convertible into any of the Fund's shares.
(m) On the Closing Date, the Fund will have good and marketable title to the
Assets and full right, power and authority to sell, assign, transfer and
deliver the Assets to be transferred by it hereunder free of any liens or other
encumbrances, and upon delivery and payment for the 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 and accepted by the Acquiring Fund.
(n) The execution, delivery and performance of this Agreement will have been
duly authorized prior to the Closing Date by all necessary action on the part
of the Fund's Board and does not require the approval or consent of Fund
Shareholders, and this Agreement will constitute the valid and legally binding
obligation of the Fund, enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto, and to general principles
of equity and the discretion of the court (regardless of whether the
enforceability is considered in a proceeding in equity or at law).
(o) The information to be furnished by the Fund for use in registration
statements, information statements and other documents filed or to be filed
with any federal, state or local regulatory authority (including the Financial
Industry Regulatory Authority), 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.
(p) The Registration Statement on Form N-14 and the Prospectus/Information
Statement contained therein as amended or supplemented (the "Registration
Statement"), as of the effective date of the Registration Statement and at all
times subsequent thereto up to and including the Closing Date, conform and will
conform, as it relates to the Fund, in all material respects to the
requirements of the federal and state securities laws and the rules and
regulations thereunder and do not and will not include, as it relates to the
Fund, 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 such statements were made, not
misleading.
4.2 The Acquiring Fund represents and warrants to the Fund as follows:
(a) The Acquiring Fund is a corporation duly organized and validly existing
under the laws of the State of Maryland, and has power to carry out its
obligations under this Agreement.
(b) The Acquiring Fund is registered under the 1940 Act as an open-end
management investment company, and the Acquiring Fund's shares are registered
under the 1933 Act, and such registrations have not been revoked or rescinded
and are in full force and effect. The Acquiring Fund is in compliance in all
material respects with the 1940 Act and the rules and regulations thereunder.
(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 materially misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of
this Agreement will not result, in material violation of the Acquiring Fund's
Charter or its By-Laws or of any agreement, indenture, instrument, contract,
lease or other undertaking to which the Acquiring Fund is a party or by which
the Acquiring Fund is bound, nor will the execution, delivery and performance
of this Agreement by the Acquiring Fund result in the acceleration of any
obligation, or the imposition of any penalty, under any agreement, indenture,
instrument, contract, lease or other undertaking to which the Acquiring Fund is
a party or by which the Acquiring Fund is bound.
(e) 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 herein, except as may be required under the 1933 Act,
the 1934 Act and the 1940 Act and by state securities laws.
(f) No litigation or administrative proceeding or investigation of or before
any court or governmental body is currently pending or to the Acquiring Fund's
knowledge threatened against the Acquiring Fund or any of the Acquiring Fund's
properties or assets which, if adversely determined, would materially and
adversely affect the Acquiring Fund's financial condition or the conduct of the
Acquiring Fund's business. The Acquiring Fund knows of no facts which might
form the basis for the institution of such proceedings, and is not a party to
or subject to the provisions of any order, decree or judgment of any court or
governmental body which materially and adversely affects the Acquiring Fund's
business or the Acquiring Fund's ability to consummate the transactions
contemplated herein.
(g) The Statements of Assets and Liabilities, Statements of Operations,
Statements of Changes in Net Assets and Schedule of Portfolio Investments
(indicating their market values) of the Acquiring Fund for each of the
Acquiring Fund's five fiscal years ended December 31, 2008 have been audited by
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
and are in accordance with GAAP, consistently applied, and such statements
(copies of which have been furnished to the Fund) fairly reflect the financial
condition of the Acquiring Fund as of such dates.
(h) Since December 31, 2008, 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 disclosed on the statement of assets
and liabilities referred to in paragraph 4.2(g) hereof.
(i) At the Closing Date, all federal and other tax returns and reports of the
Acquiring Fund required by law then to be filed shall have been filed, and all
federal and other taxes shown as due on said returns and reports shall have
been paid so far as due, or provision shall have been made for the payment
thereof, and to the knowledge of the Acquiring Fund no such return is currently
under audit and no assessment or deficiency has been asserted with respect to
such returns.
(j) For each taxable 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.
(k) All issued and outstanding shares of the Acquiring Fund are, and at the
Closing Date (including the shares of the Acquiring Fund to be issued pursuant
to paragraph 1.1 of this Agreement) will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Acquiring Fund. The
Acquiring Fund does not have outstanding any options, warrants or other rights
to subscribe for or purchase any of the Acquiring Fund Shares, nor is there
outstanding any security convertible into any Acquiring Fund Shares.
(l) The execution, delivery and performance of this Agreement will have been
duly authorized prior to the Closing Date by all necessary action on the part
of the Acquiring Fund's Board, and this Agreement will constitute the valid and
legally binding obligation of the Acquiring Fund, enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto, and to general principles of equity and the discretion of the
court (regardless of whether the enforceability is considered in a proceeding
in equity or at law).
(m) The Registration Statement as of its effective date and at all times
subsequent thereto up to and including the Closing Date, conforms and will
conform, as it relates to the Acquiring Fund, in all material respects to the
requirements of the federal and state securities laws and the rules and
regulations thereunder and does not and will not include, as it relates to the
Acquiring Fund, 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 such statements were made,
not misleading. No representations and warranties in this paragraph 4.2 shall
apply to statements or omissions made in reliance upon and in conformity with
written information concerning the Fund furnished to the Acquiring Fund by the
Fund.
(n) No consideration other than the Acquiring Fund Shares (and the Acquiring
Fund's assumption of the Fund's stated liabilities) will be issued in exchange
for the Fund's assets in the Reorganization.
(o) The Acquiring Fund does not directly or indirectly own, nor on the Closing
Date will it directly or indirectly own, nor has it directly or indirectly
owned at any time during the past five years, any shares of the Fund.
5. COVENANTS OF THE ACQUIRING FUND AND THE FUND.
5.1 The Acquiring Fund and the Fund each will operate its business in the
ordinary course between the date hereof and the Closing Date, it being
understood that such ordinary course of business will include payment of
customary dividends and other distributions.
5.2 Subject to the provisions of this Agreement, the Fund and the Acquiring
Fund will each take, or cause to be taken, all action, and do or cause to be
done, all things reasonably necessary, proper or advisable to consummate and
make effective the transactions contemplated by this Agreement.
5.3 As promptly as practicable, but in any case within sixty days after the
Closing Date, the Fund shall furnish the Acquiring Fund, in such form as is
reasonably satisfactory to the Acquiring Fund, a statement of the earnings and
profits of the Fund for federal income tax purposes which will be carried over
to the Acquiring Fund as a result of Section 381 of the Code and which will be
certified by the Fund's President or its Vice President and Treasurer.
5.4 The Fund will provide the Acquiring Fund with information reasonably
necessary for the preparation of the Registration Statement.
5.5 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.
5.6 The Fund covenants that the Fund is not acquiring the Acquiring Fund
Shares to be issued hereunder for the purpose of making any distribution
thereof, other than in accordance with the terms of this Agreement.
5.7 As soon as is reasonably practicable after the Closing, the Fund will
make a liquidating distribution to the Fund's shareholders consisting of the
Acquiring Fund Shares received at the Closing.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND.
The obligations of the Acquiring Fund to consummate the transactions provided
for herein shall be subject, at its election, to the performance by the Fund of
all the obligations to be performed by it hereunder on or before the Closing
Date and, in addition thereto, the following conditions:
6.1 All representations and warranties of the Fund contained in this
Agreement shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date with the same force and effect as if
made on and as of the Closing Date.
6.2 The Fund shall have delivered to the Acquiring Fund a statement of the
Fund's assets and liabilities, together with a list of the Fund's portfolio
securities showing the tax basis of such securities by lot and the holding
periods of such securities, as of the Closing Date, certified by the Fund's
Treasurer.
6.3 The Fund shall have delivered to the Acquiring Fund on the Closing Date
a certificate executed in the Fund's name by the Fund's President or Vice
President and its Treasurer, in form and substance satisfactory to the
Acquiring Fund, to the effect that the representations and warranties of the
Fund made in this Agreement are true and correct at and as of the Closing Date,
except as they may be affected by the transactions contemplated by this
Agreement, and as to such other matters as the Acquiring Fund shall reasonably
request.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE FUND.
The obligations of the Fund to consummate the transactions provided for herein
shall be subject, at its election, to the performance by the Acquiring Fund of
all the obligations to be performed by it hereunder on or before the Closing
Date and, in addition thereto, the following conditions:
7.1 All representations and warranties of the Acquiring Fund contained in
this Agreement shall be true and correct in all material respects as of the
date hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing Date with the same force and
effect as if made on and as of the Closing Date.
7.2 The Acquiring Fund shall have delivered to the Fund on the Closing Date
a certificate executed in the Acquiring Fund's name by the Acquiring Fund's
President or Vice President and its Treasurer, in form and substance reasonably
satisfactory to the Fund, to the effect that the representations and warranties
of the Acquiring Fund made in this Agreement are true and correct at and as of
the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement, and as to such other matters as the Fund shall
reasonably request.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE FUND AND THE
ACQUIRING FUND.
If any of the conditions set forth below do not exist on or before the Closing
Date with respect to the Fund or the Acquiring Fund, the other party to this
Agreement shall, at its option, not be required to consummate the transactions
contemplated by this Agreement.
8.1 This Agreement and the transactions contemplated herein shall have been
approved by the Boards of each of the Fund and the Acquiring Fund.
8.2 On the Closing Date, no action, suit or other proceeding shall be
pending before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in connection with,
this Agreement or the transactions contemplated herein.
8.3 All consents of other parties and all other consents, orders and permits
of federal, state and local regulatory authorities (including those of the
Commission and of state Blue Sky and securities authorities) deemed necessary
by the Fund or the Acquiring Fund to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of the
Fund or the Acquiring Fund, provided that either party hereto may for itself
waive any of such conditions.
8.4 The Registration Statement shall have become effective under the 1933
Act and no stop orders suspending the effectiveness thereof shall have been
issued and, to the best knowledge of the parties hereto, no investigation or
proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 0000 Xxx.
8.5 The Fund shall have declared and paid a dividend or dividends which,
together with all previous dividends, shall have the effect of distributing to
Fund shareholders all of the Fund's investment company taxable income (within
the meaning of Section 852(b)(2) of the Code) for all taxable years or periods
ending on or prior to the Closing Date (computed without regard to any
deduction for dividends paid); the excess of its interest income excludable
from gross income under Section 103(a) of the Code over its disallowed
deductions under Sections 265 and 171(a)(2) of the Code, for all taxable years
or periods; and all of its net capital gain (as defined in Section 1222(11) of
the Code) realized in all taxable years or periods (after reduction for any
capital loss carryforward).
8.6 The Fund and Acquiring Fund shall have received an opinion of Stroock
& Stroock & Xxxxx LLP substantially to the effect that based on the facts and
assumptions stated herein and conditioned on consummation of the Reorganization
in accordance with this Agreement, for federal income tax purposes:
(a) The transfer of all of the Fund's assets to the Acquiring Fund in exchange
solely for the Acquiring Fund Shares and the assumption by the Acquiring Fund
of certain identified liabilities of the Fund, followed by the distribution by
the Fund of those Acquiring Fund Shares to Fund Shareholders in complete
liquidation of the Fund, will qualify as a "reorganization" within the meaning
of Section 368(a) of the Code and each of the Fund and the Acquiring Fund will
be "a party to a reorganization"; (b) no gain or loss will be recognized by the
Acquiring Fund upon the receipt of the assets of the Fund in exchange solely
for Acquiring Fund Shares and the assumption by the Acquiring Fund of certain
identified liabilities of the Fund pursuant to the Reorganization; (c) no gain
or loss will be recognized by the Fund upon the transfer of the Fund's assets
to the Acquiring Fund in exchange solely for Acquiring Fund Shares and the
assumption by the Acquiring Fund of certain identified liabilities of the Fund
or upon the distribution (whether actual or constructive) of those Acquiring
Fund Shares to Fund Shareholders in exchange for their shares of the Fund in
liquidation of the Fund pursuant to the Reorganization; (d) no gain or loss
will be recognized by Fund Shareholders upon the exchange of their Fund shares
for the Acquiring Fund Shares pursuant to the Reorganization; (e) the aggregate
tax basis for the Acquiring Fund Shares received by each Fund Shareholder
pursuant to the Reorganization will be the same as the aggregate tax basis of
the Fund shares held by such Shareholder immediately prior to the
Reorganization, and the holding period of those Acquiring Fund Shares received
by each Fund Shareholder will include the period during which the Fund shares
exchanged therefor were held by such Shareholder (provided the Fund shares were
held as capital assets on the date of the Reorganization); and (f) the tax
basis of each Fund asset acquired by the Acquiring Fund will be the same as the
tax basis of such asset to the Fund immediately prior to the Reorganization,
and the holding period of each asset of the Fund in the hands of the Acquiring
Fund will include the period during which that asset was held by the Fund.
In rendering its opinion, counsel may rely as to factual matters, exclusively
and without independent verification, on the representations and warranties
made in this Agreement, which counsel may treat as representations and
warranties made to it, and in separate letters addressed to counsel and the
certificates delivered pursuant to this Agreement.
No opinion will be expressed as to the effect of the Reorganization on (i) the
Fund or the Acquiring Fund with respect to any asset as to which any unrealized
gain or loss is required to be recognized for federal income tax purposes at
the end of a taxable year (or on the termination or transfer thereof) under a
xxxx-to-market system of accounting, and (ii) any Fund Shareholder that is
required to recognize unrealized gains and losses for federal income tax
purposes under a xxxx-to-market system of accounting.
9. TERMINATION OF AGREEMENT; EXPENSES.
9.1 This Agreement and the transactions contemplated hereby may be
terminated and abandoned by resolution of the Board of the Acquiring Fund or of
the Fund, as the case may be, at any time prior to the Closing Date if
circumstances should develop that, in the opinion of the party's Board, make
proceeding with the Reorganization inadvisable.
9.2 If this Agreement is terminated and the transactions contemplated hereby
are abandoned pursuant to the provisions of this Section 9, this Agreement shall
become void and have no effect, without any liability on the part of any party
hereto or the Board members or officers of the Fund or the Acquiring Fund, or
shareholders of the Fund or of the Acquiring Fund, as the case may be, in
respect of this Agreement.
9.3 Each party acknowledges that all expenses directly incurred in
connection with the Reorganization will be borne by CSCM; provided however,
that expenses will in any event be paid by the party directly incurring such
expenses if and to the extent that the payment by another person of such
expenses would result in the disqualification of such party as a "regulated
investment company" within the meaning of Section 851 of the Code.
10. WAIVER.
At any time prior to the Closing Date, except as otherwise expressly provided,
any of the foregoing conditions may be waived by the Board of the Fund or of
the Acquiring Fund if, in the judgment of either, such waiver will not have a
material adverse effect on the benefits intended under this Agreement to the
shareholders of the Fund or of the Acquiring Fund, as the case may be.
11. MISCELLANEOUS.
11.1 None of the representations and warranties included or provided for
herein shall survive consummation of the transactions contemplated hereby.
11.2 This Agreement contains the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof, and merges and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them relating to the subject matter hereof. Neither party
shall be bound by any condition, definition, warranty or representation, other
than as set forth or provided in this Agreement or as may be, on or subsequent
to the date hereof, set forth in a writing signed by the party to be bound
thereby.
11.3 This Agreement shall be governed and construed in accordance with the
internal laws of the State of New York, without giving effect to principles of
conflict of laws; provided, however, that the due authorization, execution and
delivery of this Agreement by the Acquiring Fund and the Fund shall be governed
and construed in accordance with the internal laws of the State of Maryland,
without giving effect to principles of conflict of laws; provided that, in the
case of any conflict between those laws and the federal securities laws, the
latter shall govern.
11.4 This Agreement may be amended only by a signed writing between the
parties.
11.5 This Agreement may be executed in counterparts, each of which, when
executed and delivered, shall be deemed to be an original.
11.6 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by
any party without the written consent of the other party. Nothing herein
expressed or implied is intended or shall be construed to confer upon or give
any person, firm or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
11.7 It is expressly agreed that the obligations of the parties hereunder
shall not be binding upon any of the Board members or officers of the Fund or
the Acquiring Fund, or shareholders, nominees, agents, or employees of the Fund
or the Acquiring Fund personally, but shall bind only the property of the Fund
or the Acquiring Fund, as the case may be, as provided in the Fund's Charter or
the Acquiring Fund's Charter, respectively. The execution and delivery of this
Agreement by such officers shall not 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 property of the Fund or the Acquiring Fund, as the case may be.
IN WITNESS WHEREOF, the Fund and the Acquiring Fund have caused this Agreement
and Plan of Reorganization to be executed and attested on its behalf by its
duly authorized representatives as of the date first above written.
XXXXX & STEERS EUROPEAN REALTY SHARES, INC.
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
President
ATTEST: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Assistant Secretary
XXXXX & STEERS INTERNATIONAL REALTY FUND, INC.
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
President
ATTEST: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Assistant Secretary
