SUB-ITEM 77Q1G MERGERS
SUB-ITEM 77Q1G (1)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "AGREEMENT") is made as of
November 16, 2001, by and between Jurika & Xxxxxx Balanced Fund (the "ACQUIRED
FUND"), a series of Jurika & Xxxxxx Fund Group, a Delaware business trust (the
"J&V TRUST"), and CDC Nvest Balanced Fund (the "ACQUIRING FUND"), a series of
CDC Nvest Funds Trust I, a Massachusetts business trust (the "CDC NVEST TRUST").
PLAN OF REORGANIZATION
(a) The Acquired Fund shall sell, assign, convey, transfer and deliver to
the Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets. In consideration therefor, the Acquiring Fund shall, on
the Exchange Date, assume all of the liabilities of the Acquired Fund existing
at the Valuation Time (as defined in Section 3(c)) and deliver to the Acquired
Fund a number of full and fractional 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 (the
"CODE").
(b) Upon consummation of the transactions described in paragraph (a) of
this Plan of Reorganization, the Acquired Fund shall distribute in complete
liquidation to its shareholders of record as of the Exchange Date the Merger
Shares, each shareholder being entitled to receive that proportion of such
Merger Shares which the number of shares of the Acquired Fund held by such
shareholder bears to the total number of shares 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 J&V Trust, as amended, and
applicable law, and its legal existence terminated. Any reporting responsibility
of the Acquired Fund is and shall remain the responsibility of the Acquired Fund
up to and including the Exchange Date and, if applicable, such later date on
which the Acquired Fund is dissolved.
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AGREEMENT
The CDC Nvest Trust, on behalf of the Acquiring Fund, and the J&V Trust, on
behalf of the Acquired Fund, agree as follows:
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ACQUIRING FUND. The
CDC Nvest 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 CDC Nvest Trust, a
Massachusetts business trust duly established and validly existing under
the laws of the Commonwealth of Massachusetts, and has power to own all of
its properties and assets and to carry out its obligations under this
Agreement. The CDC Nvest Trust is qualified as a foreign association in
every jurisdiction where required, except to the extent that failure to so
qualify would not have a material adverse effect on the CDC Nvest Trust.
Each of the CDC Nvest Trust and the Acquiring Fund has all necessary
federal, state and local authorizations to carry on its business as now
being conducted and to carry out this Agreement.
b. The CDC Nvest Trust is registered under the Investment Company Act
of 1940, as amended (the "1940 ACT"), as an open-end management investment
company, and such registration has not been revoked or rescinded and is in
full force and effect.
c. A statement of assets and liabilities, statements of operations,
statements of changes in net assets and a schedule of investments
(indicating their market values) of the Acquiring Fund as of and for the
period ended June 30, 2001, have been furnished to the Acquired Fund prior
to the Exchange Date. Such statement of assets and liabilities and schedule
fairly shall 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 June 30, 2001, there has not been any material adverse change
in the Acquiring Fund's financial condition, assets, liabilities or
business (other than changes occurring in the ordinary course of business),
or any incurrence by the Acquiring Fund of indebtedness. For the purposes
of this subparagraph (d), distributions of net investment income and net
realized capital gains, changes in portfolio securities, changes in the
market value of portfolio securities or net redemptions shall be deemed to
be in the ordinary course of business.
e. The CDC Nvest Trust is not in violation in any material respect of
any provisions of its Agreement and Declaration of Trust or By-Laws or of
any agreement, indenture, instrument, contract, lease or other undertaking
to which the CDC Nvest Trust is a party or by which the Acquiring Fund is
bound, and the execution, delivery and performance of this Agreement will
not result in any such violation.
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f. The prospectuses and statement of additional information of the CDC
Nvest Trust, each dated May 1, 2001, and each as from time to time amended
or supplemented (collectively, the "CDC NVEST PROSPECTUSES"), 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 CDC Nvest Trust or the Acquiring Fund, any untrue statements
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
g. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the CDC Nvest Trust or the Acquiring Fund,
threatened against the CDC Nvest Trust or the Acquiring Fund, which assert
liability on the part of the CDC Nvest Trust or the Acquiring Fund. Neither
the CDC Nvest Trust nor the Acquiring Fund knows of any facts which might
form the basis for the institution of such proceedings and is not a party
to or subject to the provisions of any order, decree or judgment of any
court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions herein contemplated.
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 June 30, 2001, 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 June 30, 2001,
whether or not incurred in the ordinary course of business.
i. As of the Exchange Date, the Acquiring Fund will have filed all
federal and other tax returns and reports which, to the knowledge of the
CDC Nvest Trust's officers, are required to be filed by the Acquiring Fund
and has paid or will pay all federal and other taxes shown to be due on
said returns or on any assessments received by the Acquiring Fund. All tax
liabilities of the Acquiring Fund have been adequately provided for on its
books, and no tax deficiency or liability of the Acquiring Fund has been
asserted, and no question with respect thereto has been raised or is under
audit, by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
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
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Statement or the Acquired Fund Proxy Statement (each as defined in Section
l(r) herein) or the CDC Nvest Prospectuses.
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 Sections 851 and 852 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 Y shares of beneficial interest in the
Acquiring Fund and will be fully paid and nonassessable by the Acquiring
Fund, and no shareholder of the Acquiring Fund will have any preemptive
right of subscription or purchase in respect thereof.
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 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 CDC
Nvest Prospectuses.
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 CDC Nvest
Prospectuses.
r. The registration statement (the "REGISTRATION STATEMENT") filed
with the Securities and Exchange Commission (the "COMMISSION") by the CDC
Nvest Trust on Form N-14 on behalf of the Acquiring Fund and relating to
the Merger Shares issuable hereunder, and the proxy statement of the
Acquired Fund relating to the meeting of the Acquired Fund's shareholders
referred to in Section 7 herein (together with the documents incorporated
therein by reference, the "ACQUIRED FUND PROXY STATEMENT"), on the
effective date of the Registration Statement (i) complied in all material
respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act
and the rules and regulations thereunder and (ii) did not contain any
untrue statement of a material fact or omit to state a material fact
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required to be stated therein or necessary to make the statements therein
not misleading; and at the time of the shareholders' meeting referred to in
Section 7 and on the Exchange Date, the prospectus which is contained in
the Registration Statement, as amended or supplemented by any amendments or
supplements filed with the Commission by the CDC Nvest Trust, and the
Acquired Fund Proxy Statement did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that none of the representations and
warranties in this subsection shall apply to statements in or omissions
from the Registration Statement or the Acquired Fund Proxy Statement made
in reliance upon and in conformity with information furnished by the
Acquired Fund for use in the Registration Statement or the Acquired Fund
Proxy Statement.
s. The information to be furnished by the Acquiring Fund for use in
the Registration Statement and Proxy Statement shall be accurate and
complete in all material respects and shall comply with federal securities
and other laws and regulations applicable thereto.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ACQUIRED FUND. The J&V
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 J&V Trust, a
Delaware business trust duly established and validly existing under the
laws of the State of Delaware, and has power to own all of its properties
and assets and to carry out this Agreement. The J&V 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 J&V Trust. Each of the J&V 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 J&V Trust is registered under the 1940 Act as an open-end
management investment company, and such registration has not been revoked
or rescinded and is in full force and effect.
c. A statement of assets and liabilities, statements of operations,
statements of changes in net assets and a schedule of investments
(indicating their market values) of the Acquired Fund as of and for the
period ended June 30, 2001, has been furnished to the Acquiring Fund prior
to the Exchange Date. Such statement of assets and liabilities and schedule
fairly present the financial position of the Acquired Fund as of such date
and said statements of operations and changes in net 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 June 30, 2001, there has not been any material adverse change
in the Acquired Fund's financial condition, assets, liabilities or business
(other than changes occurring in the ordinary course of business), or any
incurrence by the Acquired Fund of indebtedness, except as disclosed in
writing to the Acquiring Fund. For the purposes of this Section 2(d) and of
Section 9(a) of this Agreement, distributions of net investment income and
net realized capital gains, changes in portfolio securities, changes in the
market value of portfolio securities or net redemptions shall be deemed to
be in the ordinary course of business.
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e. The J&V 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 J&V 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
J&V Trust, each dated October 27, 2000, and each as from time to time
amended or supplemented (the "J&V 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 J&V Trust and the Acquired Fund, any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
g. The Acquired Fund's investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in its prospectus
and statement of additional information as in effect from time to time,
except as previously disclosed in writing to the Acquiring Fund.
h. At the Exchange Date, the J&V 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 J&V Trust or the Acquired Fund,
threatened against the J&V Trust or the Acquired Fund, which assert
liability on the part of the J&V 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.
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j. There are no material contracts outstanding to which the Acquired
Fund is a party, other than as are or will be disclosed in the J&V
Prospectus, the Registration Statement or the Acquired Fund Proxy
Statement.
k. The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that are shown on the Acquired
Fund's statement of assets and liabilities as of June 30, 2001, referred to
above and those incurred in the ordinary course of its business as an
investment company since such date. Prior to the Exchange Date, the
Acquired Fund will quantify and reflect on its balance sheet all of its
material known liabilities and will advise the Acquiring Fund of all
material liabilities, contingent or otherwise, incurred by it subsequent to
June 30, 2001, whether or not incurred in the ordinary course of business.
l. As of the Exchange Date, the Acquired Fund will have filed all
required federal and other tax returns and reports which, to the knowledge
of the J&V Trust's officers, are required to have been filed by the
Acquired Fund and has paid or will pay all federal and other taxes shown to
be due on said returns or on any assessments received by the Acquired Fund.
All tax liabilities of the Acquired Fund have been adequately provided for
on its books, and no tax deficiency or liability of the Acquired Fund has
been asserted, and no question with respect thereto has been raised or is
under audit, by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
m. The J&V Trust has and, at the Exchange Date, the J&V 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 June 30, 2001, 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.
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p. The Acquired Fund qualifies and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company"
under Sections 851 and 852 of the Code.
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 J&V 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 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 Registration Statement and the Acquired Fund Proxy Statement,
on the effective date of the Registration Statement (i) complied in all
material respects with the provisions of the 1933 Act, the 1934 Act and the
1940 Act and the rules and regulations thereunder and (ii) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and at the time of the shareholders' meeting referred to in
Section 7 and on the Exchange Date, the Acquired Fund Proxy Statement and
the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that none of the representations and
warranties in this subsection shall apply to statements in or omissions
from the Registration Statement or the Acquired Fund Proxy Statement made
in reliance upon and in conformity with information furnished by the
Acquiring Fund for use in the Registration Statement or the Acquired Fund
Proxy Statement.
u. The J&V 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
8
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 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 by the Acquired Fund of
any Acquired Fund investments designated by the Acquiring Fund as being
unsuitable for it to acquire), 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 all of the Merger Shares received by it to the
shareholders of the Acquired Fund in exchange for their shares of the
Acquired Fund.
b. The Acquired Fund will pay or cause to be paid to the Acquiring
Fund any interest, cash or such dividends, rights and other payments
received by it on or after the Exchange Date with respect to the
Investments and other properties and assets of the Acquired Fund, whether
accrued or contingent, received by it on or after the Exchange Date. Any
such distribution shall be deemed included in the assets transferred to the
Acquiring Fund at the Exchange Date and shall not be separately valued
unless the securities in respect of which such distribution is made shall
have gone "ex" such distribution prior to the Valuation Time, in which case
any such distribution which remains unpaid at the Exchange Date shall be
included in the determination of the value of the assets of the Acquired
Fund acquired by the Acquiring Fund.
c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange
Date or such earlier or later day as may be mutually agreed upon in writing
by the parties hereto (the "VALUATION TIME").
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4. EXCHANGE DATE; VALUATION TIME. On the Exchange Date, the Acquiring Fund
will deliver to the Acquired Fund a number of full and fractional Merger Shares
having an aggregate net asset value equal to the value of the assets of the
Acquired Fund on such date less the value of the liabilities 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 CDC Nvest 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 (including but not limited to the
obligation of the Acquired Fund, to the extent and subject to the
limitations set forth in the Agreement and Declaration of Trust and By-Laws
of the J&V Trust, to indemnify the Trustees of the J&V Trust in their
capacity as such Trustees, the amount of which obligation is hereby limited
to an amount equal to the aggregate net asset value of the Merger Shares as
of the Valuation Time, it being understood that such obligation shall in no
way be extinguished, reduced or otherwise affected by the termination of
the legal existence of the J&V Trust), 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, Jurika & Xxxxxx,
X.X., CDC IXIS Asset Management North America, L.P. and CDC IXIS Asset
Management Advisers, L.P. (together, the "PAYING ENTITIES"), by
countersigning this Agreement, agree that they will bear any and all costs
and expenses of the transaction incurred by the Acquiring Fund and the
Acquired Fund, in such relative proportions as they may mutually determine;
PROVIDED, HOWEVER, that the Acquiring Fund and the Acquired Fund will each
10
pay any brokerage commissions, dealer xxxx-ups and similar expenses that it
may incur in connection with the purchases or sale of portfolio securities;
AND PROVIDED FURTHER THAT, the Acquiring Fund will pay all governmental
fees required in connection with the registration or qualification of the
Merger Shares under applicable state and federal laws.
b. In the event the transactions contemplated by this Agreement are
not consummated, then CDC IXIS Asset Management North America, L.P. agrees
that it shall bear all of the costs and 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 Section 851 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
CDC IXIS Asset Management Services, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
as of the close of business on November 30, 2001, or at such other time and date
agreed to by the Acquiring Fund and the Acquired Fund, the date and time upon
which such delivery is to take place being referred to herein as the "EXCHANGE
DATE."
7. MEETING OF SHAREHOLDERS; DISSOLUTION.
a. The J&V 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 J&V
Trust's Agreement and Declaration of 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 for inclusion in the Registration
Statement, file the Registration Statement with the Commission. Each of the
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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 J&V Trust's President
(or any Vice President) and Treasurer, and a certificate of both such
officers, dated the Exchange Date, that there has been no material adverse
change in the financial position of the Acquired Fund since June 30, 2001,
other than changes in the Investments and other assets and properties since
that date or changes in the market value of the Investments and other
assets of the Acquired Fund, or changes due to dividends paid, and a
certificate of both such officers representing and warranting that there
are no known liabilities, contingent or otherwise, of the Acquired Fund
required to be reflected on a balance sheet (including notes thereto) in
accordance with generally accepted accounting principles as of June 30,
2001 and in the Acquired Fund's statement of assets and liabilities as of
the Valuation Time.
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the J&V Trust's President (or
any Vice President) and Treasurer certifying that as of the Exchange Date
all representations and warranties of the Acquired Fund made in this
Agreement are true and correct in all material respects as if made at and
as of such date and the Acquired Fund has complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied
at or prior to such date.
c. That the Acquired Fund shall have delivered to the Acquiring Fund a
letter from the J&V Trust's independent accountants, dated the Exchange
Date, stating that such firm has employed certain procedures whereby it has
obtained schedules of the tax provisions and qualifying tests for regulated
investment companies and that, in the course of such procedures, nothing
came to their attention which caused them to believe that the Acquired Fund
(i) would not qualify as a regulated investment company for federal, state,
or local income tax purposes or (ii) would owe any federal, state or local
income tax or excise tax, in each case for both the taxable year ended June
30, 2001, and for any taxable year or period beginning on July 1, 2001 and
ending on or prior to the Exchange Date (the latter period being based on
unaudited data).
d. That there shall not be any material litigation pending with
respect to the matters contemplated by this Agreement.
12
e. That the Acquiring Fund shall have received an opinion of Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to the Acquired Fund, dated the
Exchange Date, to the effect that (i) the J&V Trust is a Delaware business
trust duly formed and validly existing under the laws of State of Delaware,
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 J&V Trust; (ii) this Agreement
has been duly authorized, executed and delivered by the J&V Trust on behalf
of the Acquired Fund and, assuming that the Registration Statement, the J&V
Prospectus and the Acquired Fund Proxy Statement comply with the 1933 Act,
the 1934 Act and the 1940 Act and assuming due authorization, execution and
delivery of this Agreement by the CDC Nvest Trust on behalf of the
Acquiring Fund, is a valid and binding obligation of the J&V Trust and the
Acquired Fund enforceable against the J&V 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
J&V 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 J&V Trust's
Agreement and Declaration of Trust or By-Laws, or any provision of any
agreement known to such counsel to which the J&V 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 J&V 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 J&V Trust's Agreement and
Declaration of Trust, By-Laws or then-current prospectuses or statement of
additional information, such counsel may rely upon a certificate of an
officer of the J&V 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 J&V 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 J&V 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 J&V Trust or the Acquired Fund or
any of their properties or assets that challenges or seeks to prohibit,
restrain or enjoin the transactions contemplated by this Agreement. In
addition, such counsel shall also state that they have participated in
conferences with officers and other representatives of the Acquired Fund at
which the contents of the Acquired Fund Proxy Statement and related matters
were discussed, and, although they are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Acquired Fund Proxy Statement, on the basis of
the foregoing (relying as to materiality upon the opinions of officers and
other representatives of the Acquired Fund), no facts have come to their
13
attention that lead them to believe that the portions of the Acquired Fund
Proxy Statement relevant to the transfer of assets contemplated by this
Agreement as of its date, as of the date of the Acquired Fund shareholders'
meeting or as of the Exchange Date, contained an untrue statement of a
material fact regarding the Acquired Fund or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein regarding the Acquired Fund, in light of the circumstances under
which they were made, not misleading. Such opinion may state that such
counsel does not express any opinion or belief as to the financial
statements or other financial data, or as to the information relating to
the Acquiring Fund, contained in the Acquired Fund Proxy Statement or the
Registration Statement, and that such opinion is solely for the benefit of
the Acquiring Fund, its Trustees and its officers.
f. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx, 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 CDC
Nvest Prospectus in effect on the Exchange Date, may not properly acquire.
h. That the J&V 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 J&V 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
14
substance to the Acquiring Fund and Ropes & Xxxx.
j. That, prior to the Exchange Date, the Acquired Fund shall have
declared a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to the shareholders of the
Acquired Fund (i) all of the excess of (x) the Acquired Fund's investment
income excludable from gross income under Section 103 of the Code over (y)
the Acquired Fund's deductions disallowed under Sections 265 and 171 of the
Code, (ii) all of the 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 June 30, 2001, and for any
taxable year or period beginning on July 1, 2001 and ending on or prior to
the Exchange Date.
k. That the Acquired Fund shall have furnished to the Acquiring Fund a
certificate, signed by the President (or any Vice President) and the
Treasurer of the J&V Trust, as to the tax cost to the Acquired Fund of the
securities delivered to the Acquiring Fund pursuant to this Agreement,
together with any such other evidence as to such tax cost as the Acquiring
Fund may reasonably request.
l. That the Acquired Fund's custodian shall have delivered to the
Acquiring Fund a certificate identifying all of the assets of the Acquired
Fund held or maintained by such custodian as of the Valuation Time.
m. That the Acquired Fund's transfer agent shall have provided to the
Acquiring Fund (i) the originals or true copies of all of the records of
the Acquired Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares of the
Acquired Fund outstanding as of the Valuation Time, and (iii) the name and
address of each holder of record of any shares and the number of shares
held of record by each such shareholder.
n. That all of the issued and outstanding shares of beneficial
interest of the Acquired Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue sky laws (including
any applicable exemptions therefrom) and, to the extent that any audit of
the records of the Acquired Fund or its transfer agent by the Acquiring
Fund or its agents shall have revealed otherwise, either (i) the Acquired
Fund shall have taken all actions that in the opinion of the Acquiring Fund
or Ropes & Xxxx are necessary to remedy any prior failure on the part of
the Acquired Fund to have offered for sale and sold such shares in
conformity with such laws or (ii) the Acquired Fund shall have furnished
(or caused to be furnished) surety, or deposited (or caused to be
deposited) assets in escrow, for the benefit of the Acquiring Fund in
amounts sufficient and upon terms satisfactory, in the opinion of the
Acquiring Fund or Ropes & Xxxx, to indemnify the Acquiring Fund against any
expense, loss, claim, damage or liability whatsoever that may be asserted
or threatened by reason of such failure on the part of the Acquired Fund to
have offered and sold such shares in conformity with such laws.
15
o. That the Acquiring Fund shall have received from the J&V Trust's
independent accountants a letter addressed to the Acquiring Fund, dated as
of the Exchange Date, satisfactory in form and substance to the Acquiring
Fund with respect to the performance of limited procedures agreed upon by
the Acquiring Fund and described in such letter (but not an examination in
accordance with generally accepted auditing standards), as of the Valuation
Time.
p. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired
Fund entitled to vote.
q. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx with respect to the matters specified in Section 9(f) of this
Agreement, and such other matters as the Acquiring Fund may reasonably deem
necessary or desirable.
r. That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the CDC Nvest Trust or the
Acquiring Fund, threatened by the Commission.
9. CONDITIONS TO THE ACQUIRED FUND'S OBLIGATIONS. The obligations of the
Acquired Fund hereunder shall be subject to the following conditions:
a. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement of the Acquiring Fund's net assets, together with a list of
portfolio holdings with values determined as provided in Section 4, all as
of the Valuation Time, certified on the Acquiring Fund's behalf by the CDC
Nvest Trust's President (or any Vice President) and Treasurer (or any
Assistant Treasurer), and a certificate of both such officers, dated the
Exchange Date, to the effect that as of the Valuation Time and as of the
Exchange Date there has been no material adverse change in the financial
position of the Acquiring Fund since June 30, 2001, other than changes
occurring in the ordinary course of business.
b. That the CDC Nvest Trust, on behalf of the Acquiring Fund, shall
have executed and delivered to the Acquired Fund an Assumption of
Liabilities dated as of the Exchange Date, pursuant to which the Acquiring
Fund will assume all of the liabilities of the Acquired Fund (including but
not limited to the obligation of the Acquired Fund, to the extent and
subject to the limitations set forth in the Declaration of Trust and
By-Laws of the J&V Trust, to indemnify the Trustees of the J&V Trust in
their capacity as such Trustees, the amount of which obligation is limited
to an amount equal to the aggregate net asset value of the Merger Shares as
of the Valuation Time, it being understood that such obligation shall in no
way be extinguished, reduced or otherwise affected by the termination of
the legal existence of the J&V Trust), 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 CDC Nvest Trust's
President (or any Vice President) and Treasurer (or any Assistant
16
Treasurer) certifying that as of the Exchange Date all representations and
warranties of the Acquiring Fund made in this Agreement are true and
correct in all material respects as if made at and as of such date, and
that the Acquiring Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied at
or prior to such date.
d. That there shall not be any material litigation pending or
threatened with respect to the matters contemplated by this Agreement.
e. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx, counsel to the Acquiring Fund, dated the Exchange Date, to the effect
that (i) the CDC Nvest Trust is a Massachusetts business trust duly formed
and validly existing under the laws of the Commonwealth of Massachusetts,
and the Acquiring Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940 Act and the Agreement
and Declaration of Trust and By-Laws of the CDC Nvest Trust; (ii) the
Merger Shares to be delivered to the Acquired Fund as provided for by this
Agreement are duly authorized and upon such delivery will be validly issued
and will be fully paid and (other than as described in the Registration
Statement) nonassessable Class Y shares of beneficial interest of the
Acquiring Fund and no shareholder of the Acquiring Fund has any preemptive
right to subscription or purchase in respect thereof; (iii) this Agreement
has been duly authorized, executed and delivered by the CDC Nvest Trust on
behalf of the Acquiring Fund and, assuming that the CDC Nvest 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 J&V Trust on
behalf of the Acquired Fund, is a valid and binding obligation of the CDC
Nvest Trust and the Acquiring Fund enforceable against the CDC Nvest Trust
and the Acquiring Fund in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and other
equitable principles; (iv) the execution and delivery of this Agreement did
not, and the consummation of the transactions contemplated hereby will not,
violate the CDC Nvest Trust's Agreement and Declaration of Trust or
By-Laws, or any provision of any agreement known to such counsel to which
the CDC Nvest Trust or the Acquiring Fund is a party or by which it is
bound or, to the knowledge of such counsel, result in the acceleration of
any obligation or the imposition of any penalty under any agreement,
judgment or decree to which the CDC Nvest Trust or the Acquiring Fund is
party or by which either of them is bound, it being understood that with
respect to investment restrictions as contained in the CDC Nvest Trust's
Agreement and Declaration of Trust, By-Laws or then-current prospectuses or
statement of additional information, such counsel may rely upon a
certificate of an officer of the CDC Nvest Trust; (v) to the knowledge of
such counsel, no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the CDC Nvest
Trust on behalf of the Acquiring Fund of the transactions contemplated
herein, except such as have been obtained under the 1933 Act, the 1934 Act
and the 1940 Act and such as may be required under state securities or blue
sky laws; (vi) the CDC Nvest Trust is registered with the Commission as an
investment company under the 1940 Act; and (vii) to the knowledge of such
counsel, no litigation or administrative proceeding or investigation of or
17
before any court or governmental body is presently pending or threatened as
to the CDC Nvest Trust or the Acquiring Fund or any of their properties or
assets that challenges or seeks to prohibit, restrain or enjoin the
transactions contemplated by this Agreement. In addition, such counsel
shall also state that they have participated in conferences with officers
and other representatives of the Acquiring Fund at which the contents of
the Registration Statement and related matters were discussed, and,
although they are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement, on the basis of the foregoing (relying as to
materiality upon the opinions of officers and other representatives of the
Acquiring Fund), no facts have come to their attention that lead them to
believe that the Registration Statement as of its date, as of the date of
the Acquired Fund shareholders' meeting or as of the Exchange Date,
contained an untrue statement of a material fact regarding the Acquiring
Fund or omitted to state a material fact required to be stated therein or
necessary to make the statements therein regarding the Acquiring Fund, in
light of the circumstances under which they were made, not misleading. Such
opinion may state that such counsel does not express any opinion or belief
as to the financial statements or other financial data, or as to the
information relating to the Acquired Fund, contained in the Acquired Fund
Proxy Statement or the Registration Statement, and that such opinion is
solely for the benefit of the Acquired Fund, its Trustees and its officers.
f. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx, dated the Exchange Date (which opinion would be based upon certain
factual representations and subject to certain qualifications), in form
satisfactory to the Acquired Fund to the effect that, on the basis of the
existing provisions of the Code, current administrative rules and court
decisions, for federal income tax purposes: (i) the transactions
contemplated by this Agreement will constitute a reorganization within the
meaning of Section 368(a) of the Code, and the Acquiring Fund and the
Acquired Fund will each be "a party to the reorganization" within the
meaning of Section 368(b) of the Code; (ii) under Section 361 of the Code,
no gain or loss will be recognized by the Acquired Fund (x) upon the
transfer of its assets to the Acquiring Fund in exchange for the Merger
Shares and the assumption by the Acquiring Fund of the liabilities of the
Acquired Fund as contemplated in Section 3 hereof or (y) upon the
distribution of the Merger Shares to the shareholders of the Acquired Fund
as contemplated in Section 3 hereof; (iii) under Section 354 of the Code,
no gain or loss will be recognized by shareholders of the Acquired Fund on
the distribution of Merger Shares to them in exchange for their shares of
the Acquired Fund; (iv) under Section 358 of the Code, the aggregate tax
basis of the Merger Shares that the Acquired Fund's shareholders receive in
place of their Acquired Fund shares will be the same as the aggregate tax
basis of the Acquired Fund shares surrendered in exchange therefor; and (v)
under Section 1223(1) of the Code, an Acquired Fund's shareholder's holding
period for the Merger Shares received pursuant to the Agreement will be
determined by including the holding period for the Acquired Fund shares
exchanged for the Merger Shares, provided that the shareholder held the
Acquired Fund shares as a capital asset.
18
g. That all actions taken by the CDC Nvest Trust on behalf of the
Acquiring Fund in connection with the transactions contemplated by this
Agreement and all documents incidental thereto shall be satisfactory in
form and substance to the Acquired Fund and Ropes & Xxxx.
h. That the CDC Nvest Trust shall have received from the Commission
and any relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act, the
1940 Act and any applicable state securities or blue sky laws in connection
with the transactions contemplated hereby, and that all such orders shall
be in full force and effect.
i. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired
Fund entitled to vote.
j. That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the CDC Nvest Trust or the
Acquiring Fund, threatened by the Commission.
10. INDEMNIFICATION.
a. The Acquired Fund shall indemnify and hold harmless, out of the
assets of the Acquired Fund but no other assets, the CDC Nvest Trust and
the trustees and officers of the CDC Nvest Trust (for purposes of this
Section 10(a), the "CDC 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 CDC 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 CDC Indemnified Parties may
be involved or with which any one or more of the CDC Indemnified Parties
may be threatened by reason of any untrue statement or alleged untrue
statement of a material fact relating to the J&V Trust or the Acquired Fund
contained in this Agreement, the Registration Statement, the J&V 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
J&V Trust or the Acquired Fund required to be stated therein or necessary
to make the statements relating to the J&V Trust or the Acquired Fund
therein not misleading, including, without limitation, any amounts paid by
any one or more of the CDC 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 J&V Trust or
the Acquired Fund. The CDC Indemnified Parties will notify the J&V Trust
and the Acquired Fund in writing within ten days after the receipt by any
one or more of the CDC Indemnified Parties of any notice of legal process
or any suit brought against or claim made against such CDC 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 CDC
19
Indemnified Parties the defense of any such claim, action, suit or
proceeding, and if the Acquired Fund elects to assume such defense, the CDC
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 CDC 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 CDC 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 J&V Trust and the
trustees and officers of the J&V Trust (for purposes of this Section 10(b),
the "J&V 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 J&V 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 J&V Indemnified Parties may be
involved or with which any one or more of the J&V 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 CDC Nvest 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 CDC Nvest
Trust or the Acquiring Fund required to be stated therein or necessary to
make the statements relating to the CDC Nvest Trust or the Acquiring Fund
therein not misleading, including, without limitation, any amounts paid by
any one or more of the J&V 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 CDC Nvest
Trust or the Acquiring Fund. The J&V Indemnified Parties will notify the
CDC Nvest Trust and the Acquiring Fund in writing within ten days after the
receipt by any one or more of the J&V Indemnified Parties of any notice of
legal process or any suit brought against or claim made against such J&V
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 J&V Indemnified Parties the defense of any such claim,
action, suit or proceeding, and, if the Acquiring Fund elects to assume
such defense, the J&V 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 J&V 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 J&V
Indemnified Parties' first paying the same.
20
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 J&V Trust or the
CDC Nvest Trust, respectively, who, by reason of such dealings, is entitled to
any broker's or finder's or other similar fee or commission arising out of the
transactions contemplated by this Agreement.
12. TERMINATION. The Acquired Fund and the Acquiring Fund may, by mutual
consent of the trustees on behalf of each Fund, terminate this Agreement, and
the Acquired Fund or the Acquiring Fund, after consultation with counsel and by
consent of its trustees or an officer authorized by such trustees, may waive any
condition to its respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially completed by February
28, 2002, this Agreement shall automatically terminate on that date unless a
later date is agreed to by the Acquired Fund and the Acquiring Fund.
13. COVENANTS, ETC. DEEMED MATERIAL. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
14. RULE 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund
will, in connection with the issuance of any Merger Shares to any person who at
the time of the transaction contemplated hereby is deemed to be an affiliate of
a party to the transaction pursuant to Rule 145(c), cause to be affixed upon the
certificates issued to such person (if any) a legend as follows:
"THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT
TO CDC NVEST BALANCED 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.
21
15. REORGANIZATION OF ACQUIRED FUND. The Acquiring Fund will not merge
into, reorganize with or transfer all of its assets to, or engage in a similar
transaction with, another entity unless such other entity shall have agreed to
assume the Acquired Fund's obligation to indemnify the Trustees of the J&V Trust
set forth in Section 4.e hereto.
16. TRUSTEE INSURANCE. The CDC Nvest Trust shall, for a period of six years
after the Exchange Date, take such steps as are necessary to ensure that the
Trustees of the J&V Trust who are Trustees as of the Exchange Date are covered
by liability insurance (or any alternative self-insurance scheme that may be
adopted) as if such J&V Trust Trustees were Trustees of the CDC Nvest Trust
during such period.
17. 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.
18. DECLARATION OF TRUST.
a. A copy of the Agreement and Declaration of Trust of the CDC Nvest
Trust is on file with the Secretary of the Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of
the trustees of the CDC Nvest Trust on behalf of the Acquiring Fund as
trustees and not individually, and that the obligations of this instrument
are not binding upon any of the trustees, officers or shareholders of the
CDC Nvest Trust individually but are binding only upon the assets and
property of the Acquiring Fund.
b. A certificate of trust has been filed with the Secretary of State
of the State of Delaware, and notice is hereby given that this instrument
is executed on behalf of the trustees of the J&V 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 J&V Trust individually but are binding only upon the
assets and property of the Acquired Fund.
22
JURIKA & XXXXXX FUND GROUP,
on behalf of its Jurika & Xxxxxx Balanced Fund
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
CDC NVEST FUNDS TRUST I,
on behalf of its CDC Nvest Balanced Fund
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
Agreed and accepted as to Section 5 only:
JURIKA & XXXXXX, x.x.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice-Chairman & Principal
cdc ixis asset management north america, l.p.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President and Treasurer
cdc ixis asset management advisers, l.p.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
23
SUB-ITEM 77Q1G (2)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "AGREEMENT") is made as of
November 16, 2001, by and between Jurika & Xxxxxx Value+Growth Fund (the
"ACQUIRED FUND"), a series of Jurika & Xxxxxx Fund Group, a Delaware business
trust (the "J&V TRUST"), and CDC Nvest Jurika & Xxxxxx Relative Value Fund (the
"ACQUIRING Fund"), a series of the CDC Nvest Funds Trust I, a Massachusetts
business trust (the "CDC NVEST TRUST").
PLAN OF REORGANIZATION
(d) The Acquired Fund shall sell, assign, convey, transfer and deliver to
the Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets. In consideration therefor, the Acquiring Fund shall, on
the Exchange Date, assume all of the liabilities of the Acquired Fund existing
at the Valuation Time (as defined in Section 3(c)) and deliver to the Acquired
Fund a number of full and fractional Class Y shares of beneficial interest of
the Acquiring Fund (the "MERGER SHARES") having an aggregate net asset value
equal to the value of the assets of the Acquired Fund transferred to the
Acquiring Fund on such date less the value of the liabilities of the Acquired
Fund assumed by the Acquiring Fund on that date. It is intended that the
reorganization described in this Agreement shall be a reorganization within the
meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the
"CODE").
(e) Upon consummation of the transactions described in paragraph (a) of
this Plan of Reorganization, the Acquired Fund shall distribute in complete
liquidation to its shareholders of record as of the Exchange Date the Merger
Shares, each shareholder being entitled to receive that proportion of such
Merger Shares which the number of shares of the Acquired Fund held by such
shareholder bears to the total number of shares 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.
(f) 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 J&V 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.
24
AGREEMENT
The CDC Nvest Trust, on behalf of the Acquiring Fund, and the J&V Trust, on
behalf of the Acquired Fund, agree as follows:
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ACQUIRING FUND. The
CDC Nvest 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 CDC Nvest Trust, a
Massachusetts business trust duly established and validly existing under
the laws of the Commonwealth of Massachusetts, and has power to own all of
its properties and assets and to carry out its obligations under this
Agreement. The CDC Nvest Trust is qualified as a foreign association in
every jurisdiction where required, except to the extent that failure to so
qualify would not have a material adverse effect on the CDC Nvest Trust.
Each of the CDC Nvest Trust and the Acquiring Fund has all necessary
federal, state and local authorizations to carry on its business as now
being conducted and to carry out this Agreement.
b. The CDC Nvest Trust is registered under the Investment Company Act
of 1940, as amended (the "1940 ACT"), as an open-end management investment
company, and such registration has not been revoked or rescinded and is in
full force and effect.
c. A statement of assets and liabilities, statements of operations,
statements of changes in net assets and a schedule of investments
(indicating their market values) of the Acquiring Fund as of and for the
period ended June 30, 2001, have been furnished to the Acquired Fund prior
to the Exchange Date. Such statement of assets and liabilities and schedule
fairly shall 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 June 30, 2001, there has not been any material adverse change
in the Acquiring Fund's financial condition, assets, liabilities or
business (other than changes occurring in the ordinary course of business),
or any incurrence by the Acquiring Fund of indebtedness. For the purposes
of this subparagraph (d), distributions of net investment income and net
realized capital gains, changes in portfolio securities, changes in the
market value of portfolio securities or net redemptions shall be deemed to
be in the ordinary course of business.
e. The CDC Nvest Trust is not in violation in any material respect of
any provisions of its Agreement and Declaration of Trust or By-Laws or of
any agreement, indenture, instrument, contract, lease or other undertaking
to which the CDC Nvest Trust is a party or by which the Acquiring Fund is
bound, and the execution, delivery and performance of this Agreement will
not result in any such violation.
25
f. The prospectuses and statement of additional information of the CDC
Nvest Trust, each dated May 1, 2001, and each as from time to time amended
or supplemented (collectively, the "CDC NVEST 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 CDC Nvest Trust or the Acquiring Fund, any untrue statements
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
g. There are no material legal, administrative or other proceedings
pending or, to the knowledge of the CDC Nvest Trust or the Acquiring Fund,
threatened against the CDC Nvest Trust or the Acquiring Fund, which assert
liability on the part of the CDC Nvest Trust or the Acquiring Fund. Neither
the CDC Nvest Trust nor the Acquiring Fund knows of any facts which might
form the basis for the institution of such proceedings and is not a party
to or subject to the provisions of any order, decree or judgment of any
court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions herein contemplated.
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 June 30, 2001, 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 June 30, 2001,
whether or not incurred in the ordinary course of business.
i. As of the Exchange Date, the Acquiring Fund will have filed all
federal and other tax returns and reports which, to the knowledge of the
CDC Nvest Trust's officers, are required to be filed by the Acquiring Fund
and has paid or will pay all federal and other taxes shown to be due on
said returns or on any assessments received by the Acquiring Fund. All tax
liabilities of the Acquiring Fund have been adequately provided for on its
books, and no tax deficiency or liability of the Acquiring Fund has been
asserted, and no question with respect thereto has been raised or is under
audit, by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
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
26
Statement or the Acquired Fund Proxy Statement (each as defined in Section
l(r) herein) or the CDC Nvest 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 Sections 851 and 852 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 Y shares of beneficial interest in the
Acquiring Fund and will be fully paid and nonassessable by the Acquiring
Fund, and no shareholder of the Acquiring Fund will have any preemptive
right of subscription or purchase in respect thereof.
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 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 CDC
Nvest Prospectus.
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 CDC Nvest
Prospectus.
r. The registration statement (the "REGISTRATION STATEMENT") filed
with the Securities and Exchange Commission (the "COMMISSION") by the CDC
Nvest Trust on Form N-14 on behalf of the Acquiring Fund and relating to
the Merger Shares issuable hereunder, and the proxy statement of the
Acquired Fund relating to the meeting of the Acquired Fund's shareholders
referred to in Section 7 herein (together with the documents incorporated
therein by reference, the "ACQUIRED FUND PROXY STATEMENT"), on the
effective date of the Registration Statement (i) complied in all material
respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act
and the rules and regulations thereunder and (ii) did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
27
not misleading; and at the time of the shareholders' meeting referred to in
Section 7 and on the Exchange Date, the prospectus which is contained in
the Registration Statement, as amended or supplemented by any amendments or
supplements filed with the Commission by the CDC Nvest Trust, and the
Acquired Fund Proxy Statement did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that none of the representations and
warranties in this subsection shall apply to statements in or omissions
from the Registration Statement or the Acquired Fund Proxy Statement made
in reliance upon and in conformity with information furnished by the
Acquired Fund for use in the Registration Statement or the Acquired Fund
Proxy Statement.
s. The information to be furnished by the Acquiring Fund for use in
the Registration Statement and Proxy Statement shall be accurate and
complete in all material respects and shall comply with federal securities
and other laws and regulations applicable thereto.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ACQUIRED FUND. The J&V
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 J&V Trust, a
Delaware business trust duly established and validly existing under the
laws of the State of Delaware, and has power to own all of its properties
and assets and to carry out this Agreement. The J&V 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 J&V Trust. Each of the J&V 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 J&V Trust is registered under the 1940 Act as an open-end
management investment company, and such registration has not been revoked
or rescinded and is in full force and effect.
c. A statement of assets and liabilities, statements of operations,
statements of changes in net assets and a schedule of investments
(indicating their market values) of the Acquired Fund as of and for the
period ended June 30, 2001, has been furnished to the Acquiring Fund prior
to the Exchange Date. Such statement of assets and liabilities and schedule
fairly present the financial position of the Acquired Fund as of such date
and said statements of operations and changes in net 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 June 30, 2001, there has not been any material adverse change
in the Acquired Fund's financial condition, assets, liabilities or business
(other than changes occurring in the ordinary course of business), or any
incurrence by the Acquired Fund of indebtedness, except as disclosed in
writing to the Acquiring Fund. For the purposes of this Section 2(d) and of
28
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 J&V 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 J&V 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
J&V Trust, each dated October 27, 2000, and each as from time to time
amended or supplemented (the "J&V 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 J&V Trust and the Acquired Fund, any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
g. The Acquired Fund's investment operations from inception to the
date hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in its prospectus
and statement of additional information as in effect from time to time,
except as previously disclosed in writing to the Acquiring Fund.
h. At the Exchange Date, the J&V 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 J&V Trust or the Acquired Fund,
threatened against the J&V Trust or the Acquired Fund, which assert
liability on the part of the J&V 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.
29
j. There are no material contracts outstanding to which the Acquired
Fund is a party, other than as are or will be disclosed in the J&V
Prospectus, the Registration Statement or the Acquired Fund Proxy
Statement.
k. The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that are shown on the Acquired
Fund's statement of assets and liabilities as of June 30, 2001, referred to
above and those incurred in the ordinary course of its business as an
investment company since such date. Prior to the Exchange Date, the
Acquired Fund will quantify and reflect on its balance sheet all of its
material known liabilities and will advise the Acquiring Fund of all
material liabilities, contingent or otherwise, incurred by it subsequent to
June 30, 2001, whether or not incurred in the ordinary course of business.
l. As of the Exchange Date, the Acquired Fund will have filed all
required federal and other tax returns and reports which, to the knowledge
of the J&V Trust's officers, are required to have been filed by the
Acquired Fund and has paid or will pay all federal and other taxes shown to
be due on said returns or on any assessments received by the Acquired Fund.
All tax liabilities of the Acquired Fund have been adequately provided for
on its books, and no tax deficiency or liability of the Acquired Fund has
been asserted, and no question with respect thereto has been raised or is
under audit, by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
m. The J&V Trust has and, at the Exchange Date, the J&V 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 June 30, 2001, 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.
30
p. The Acquired Fund qualifies and will at all times through the
Exchange Date qualify for taxation as a "regulated investment company"
under Sections 851 and 852 of the Code.
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 J&V 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 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 Registration Statement and the Acquired Fund Proxy Statement,
on the effective date of the Registration Statement (i) complied in all
material respects with the provisions of the 1933 Act, the 1934 Act and the
1940 Act and the rules and regulations thereunder and (ii) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and at the time of the shareholders' meeting referred to in
Section 7 and on the Exchange Date, the Acquired Fund Proxy Statement and
the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that none of the representations and
warranties in this subsection shall apply to statements in or omissions
from the Registration Statement or the Acquired Fund Proxy Statement made
in reliance upon and in conformity with information furnished by the
Acquiring Fund for use in the Registration Statement or the Acquired Fund
Proxy Statement.
u. The J&V 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
31
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 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 by the Acquired Fund of
any Acquired Fund investments designated by the Acquiring Fund as being
unsuitable for it to acquire), 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 all of the Merger Shares received by it to the
shareholders of the Acquired Fund in exchange for their shares of the
Acquired Fund.
b. The Acquired Fund will pay or cause to be paid to the Acquiring
Fund any interest, cash or such dividends, rights and other payments
received by it on or after the Exchange Date with respect to the
Investments and other properties and assets of the Acquired Fund, whether
accrued or contingent, received by it on or after the Exchange Date. Any
such distribution shall be deemed included in the assets transferred to the
Acquiring Fund at the Exchange Date and shall not be separately valued
unless the securities in respect of which such distribution is made shall
have gone "ex" such distribution prior to the Valuation Time, in which case
any such distribution which remains unpaid at the Exchange Date shall be
included in the determination of the value of the assets of the Acquired
Fund acquired by the Acquiring Fund.
c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange
Date or such earlier or later day as may be mutually agreed upon in writing
by the parties hereto (the "VALUATION TIME").
32
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 to the value of the assets of the
Acquired Fund on such date less the value of the liabilities 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 CDC Nvest 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 (including but not limited to the
obligation of the Acquired Fund, to the extent and subject to the
limitations set forth in the Agreement and Declaration of Trust and By-Laws
of the J&V Trust, to indemnify the Trustees of the J&V Trust in their
capacity as such Trustees, it being understood that such obligation shall
in no way be extinguished, reduced or otherwise affected by the termination
of the legal existence of the J&V Trust), 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, Jurika & Xxxxxx,
X.X., CDC IXIS Asset Management North America, L.P. and CDC IXIS Asset
Management Advisers, L.P. (together, the "PAYING ENTITIES"), by
countersigning this Agreement, agree that they will bear any and all costs
and expenses of the transaction incurred by the Acquiring Fund and the
Acquired Fund, in such relative proportions as they any brokerage
commissions, dealer xxxx-ups and similar expenses that it may incur in
connection with the purchases or sale of portfolio securities; AND PROVIDED
33
FURTHER THAT, the Acquiring Fund will pay all governmental fees required in
connection with the registration or qualification of the Merger Shares
under applicable state and federal laws.
b. In the event the transactions contemplated by this Agreement are
not consummated, then CDC IXIS Asset Management North America, L.P. agrees
that it shall bear all of the costs and 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 Section 851 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 CDC IXIS Asset Management Services, Inc., 000 Xxxxxxxx
Xxxxxx, Xxxxxx, XX 00000, as of the close of business on November 30, 2001,
or at such other time and date agreed to by the Acquiring Fund and the
Acquired Fund, the date and time upon which such delivery is to take place
being referred to herein as the "EXCHANGE DATE."
7. MEETING OF SHAREHOLDERS; DISSOLUTION.
a. The J&V 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 J&V
Trust's Agreement and Declaration of 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 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
34
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 J&V Trust's President
(or any Vice President) and Treasurer, and a certificate of both such
officers, dated the Exchange Date, that there has been no material adverse
change in the financial position of the Acquired Fund since June 30, 2001,
other than changes in the Investments and other assets and properties since
that date or changes in the market value of the Investments and other
assets of the Acquired Fund, or changes due to dividends paid, and a
certificate of both such officers representing and warranting that there
are no known liabilities, contingent or otherwise, of the Acquired Fund
required to be reflected on a balance sheet (including notes thereto) in
accordance with generally accepted accounting principles as of June 30,
2001 and in the Acquired Fund's statement of assets and liabilities as of
the Valuation Time.
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the J&V Trust's President (or
any Vice President) and Treasurer certifying that as of the Exchange Date
all representations and warranties of the Acquired Fund made in this
Agreement are true and correct in all material respects as if made at and
as of such date and the Acquired Fund has complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied
at or prior to such date.
c. That the Acquired Fund shall have delivered to the Acquiring Fund a
letter from the J&V Trust's independent accountants, dated the Exchange
Date, stating that such firm has employed certain procedures whereby it has
obtained schedules of the tax provisions and qualifying tests for regulated
investment companies and that, in the course of such procedures, nothing
came to their attention which caused them to believe that the Acquired Fund
(i) would not qualify as a regulated investment company for federal, state,
or local income tax purposes or (ii) would owe any federal, state or local
income tax or excise tax, in each case for both the taxable year ended June
30, 2001, and for any taxable year or period beginning on July 1, 2001 and
ending on or prior to the Exchange Date (the latter period being based on
unaudited data).
d. That there shall not be any material litigation pending with
respect to the matters contemplated by this Agreement.
e. That the Acquiring Fund shall have received an opinion of Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to the Acquired Fund, dated the
Exchange Date, to the effect that (i) the J&V Trust is a Delaware business
trust duly formed and validly existing under the laws of State of Delaware,
35
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 J&V Trust; (ii) this Agreement
has been duly authorized, executed and delivered by the J&V Trust on behalf
of the Acquired Fund and, assuming that the Registration Statement, the J&V
Prospectus and the Acquired Fund Proxy Statement comply with the 1933 Act,
the 1934 Act and the 1940 Act and assuming due authorization, execution and
delivery of this Agreement by the CDC Nvest Trust on behalf of the
Acquiring Fund, is a valid and binding obligation of the J&V Trust and the
Acquired Fund enforceable against the J&V 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
J&V 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 J&V Trust's
Agreement and Declaration of Trust or By-Laws, or any provision of any
agreement known to such counsel to which the J&V 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 J&V 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 J&V Trust's Agreement and
Declaration of Trust, By-Laws or then-current prospectuses or statement of
additional information, such counsel may rely upon a certificate of an
officer of the J&V 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 J&V 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 J&V 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 J&V Trust or the Acquired Fund or
any of their properties or assets that challenges or seeks to prohibit,
restrain or enjoin the transactions contemplated by this Agreement. In
addition, such counsel shall also state that they have participated in
conferences with officers and other representatives of the Acquired Fund at
which the contents of the Acquired Fund Proxy Statement and related matters
were discussed, and, although they are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Acquired Fund Proxy Statement, on the basis of
the foregoing (relying as to materiality upon the opinions of officers and
other representatives of the Acquired Fund), no facts have come to their
attention that lead them to believe that the portions of the Acquired Fund
Proxy Statement relevant to the transfer of assets contemplated by this
Agreement as of its date, as of the date of the Acquired Fund shareholders'
36
meeting or as of the Exchange Date, contained an untrue statement of a
material fact regarding the Acquired Fund or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein regarding the Acquired Fund, in light of the circumstances under
which they were made, not misleading. Such opinion may state that such
counsel does not express any opinion or belief as to the financial
statements or other financial data, or as to the information relating to
the Acquiring Fund, contained in the Acquired Fund Proxy Statement or the
Registration Statement, and that such opinion is solely for the benefit of
the Acquiring Fund, its Trustees and its officers.
f. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx, 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 CDC
Nvest Prospectus in effect on the Exchange Date, may not properly acquire.
h. That the J&V 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 J&V 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.
37
j. Reserved.
k. That the Acquired Fund shall have furnished to the Acquiring Fund a
certificate, signed by the President (or any Vice President) and the
Treasurer of the J&V Trust, as to the tax cost to the Acquired Fund of the
securities delivered to the Acquiring Fund pursuant to this Agreement,
together with any such other evidence as to such tax cost as the Acquiring
Fund may reasonably request.
l. That the Acquired Fund's custodian shall have delivered to the
Acquiring Fund a certificate identifying all of the assets of the Acquired
Fund held or maintained by such custodian as of the Valuation Time.
m. That the Acquired Fund's transfer agent shall have provided to the
Acquiring Fund (i) the originals or true copies of all of the records of
the Acquired Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares of the
Acquired Fund outstanding as of the Valuation Time, and (iii) the name and
address of each holder of record of any shares and the number of shares
held of record by each such shareholder.
n. That all of the issued and outstanding shares of beneficial
interest of the Acquired Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue sky laws (including
any applicable exemptions therefrom) and, to the extent that any audit of
the records of the Acquired Fund or its transfer agent by the Acquiring
Fund or its agents shall have revealed otherwise, either (i) the Acquired
Fund shall have taken all actions that in the opinion of the Acquiring Fund
or Ropes & Xxxx are necessary to remedy any prior failure on the part of
the Acquired Fund to have offered for sale and sold such shares in
conformity with such laws or (ii) the Acquired Fund shall have furnished
(or caused to be furnished) surety, or deposited (or caused to be
deposited) assets in escrow, for the benefit of the Acquiring Fund in
amounts sufficient and upon terms satisfactory, in the opinion of the
Acquiring Fund or Ropes & Xxxx, to indemnify the Acquiring Fund against any
expense, loss, claim, damage or liability whatsoever that may be asserted
or threatened by reason of such failure on the part of the Acquired Fund to
have offered and sold such shares in conformity with such laws.
o. That the Acquiring Fund shall have received from the J&V Trust's
independent accountants a letter addressed to the Acquiring Fund, dated as
of the Exchange Date, satisfactory in form and substance to the Acquiring
Fund with respect to the performance of limited procedures agreed upon by
the Acquiring Fund and described in such letter (but not an examination in
accordance with generally accepted auditing standards), as of the Valuation
Time.
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.
38
q. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx with respect to the matters specified in Section 9(f) of this
Agreement, and such other matters as the Acquiring Fund may reasonably deem
necessary or desirable.
r. That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the CDC Nvest Trust or the
Acquiring Fund, threatened by the Commission.
9. CONDITIONS TO THE ACQUIRED FUND'S OBLIGATIONS. The obligations of the
Acquired Fund hereunder shall be subject to the following conditions:
a. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement of the Acquiring Fund's net assets, together with a list of
portfolio holdings with values determined as provided in Section 4, all as
of the Valuation Time, certified on the Acquiring Fund's behalf by the CDC
Nvest Trust's President (or any Vice President) and Treasurer (or any
Assistant Treasurer), and a certificate of both such officers, dated the
Exchange Date, to the effect that as of the Valuation Time and as of the
Exchange Date there has been no material adverse change in the financial
position of the Acquiring Fund since June 30, 2001, other than changes
occurring in the ordinary course of business.
b. That the CDC Nvest Trust, on behalf of the Acquiring Fund, shall
have executed and delivered to the Acquired Fund an Assumption of
Liabilities dated as of the Exchange Date, pursuant to which the Acquiring
Fund will assume all of the liabilities of the Acquired Fund (including but
not limited to the obligation of the Acquired Fund, to the extent and
subject to the limitations set forth in the Declaration of Trust and
By-Laws of the J&V Trust, to indemnify the Trustees of the J&V Trust in
their capacity as such Trustees, it being understood that such obligation
shall in no way be extinguished, reduced or otherwise affected by the
termination of the legal existence of the J&V Trust), 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 CDC Nvest Trust's
President (or any Vice President) and Treasurer (or any Assistant
Treasurer) certifying that as of the Exchange Date all representations and
warranties of the Acquiring Fund made in this Agreement are true and
correct in all material respects as if made at and as of such date, and
that the Acquiring Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied at
or prior to such date.
d. That there shall not be any material litigation pending or
threatened with respect to the matters contemplated by this Agreement.
e. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx, counsel to the Acquiring Fund, dated the Exchange Date, to the effect
that (i) the CDC Nvest Trust is a Massachusetts business trust duly formed
and validly existing under the laws of the Commonwealth of Massachusetts,
and the Acquiring Fund is a separate series thereof duly constituted in
39
accordance with the applicable provisions of the 1940 Act and the Agreement
and Declaration of Trust and By-Laws of the CDC Nvest Trust; (ii) the
Merger Shares to be delivered to the Acquired Fund as provided for by this
Agreement are duly authorized and upon such delivery will be validly issued
and will be fully paid and (other than as described in the Registration
Statement) nonassessable Class Y shares of beneficial interest of the
Acquiring Fund and no shareholder of the Acquiring Fund has any preemptive
right to subscription or purchase in respect thereof; (iii) this Agreement
has been duly authorized, executed and delivered by the CDC Nvest Trust on
behalf of the Acquiring Fund and, assuming that the CDC Nvest 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 J&V Trust on
behalf of the Acquired Fund, is a valid and binding obligation of the CDC
Nvest Trust and the Acquiring Fund enforceable against the CDC Nvest Trust
and the Acquiring Fund in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and other
equitable principles; (iv) the execution and delivery of this Agreement did
not, and the consummation of the transactions contemplated hereby will not,
violate the CDC Nvest Trust's Agreement and Declaration of Trust or
By-Laws, or any provision of any agreement known to such counsel to which
the CDC Nvest Trust or the Acquiring Fund is a party or by which it is
bound or, to the knowledge of such counsel, result in the acceleration of
any obligation or the imposition of any penalty under any agreement,
judgment or decree to which the CDC Nvest Trust or the Acquiring Fund is
party or by which either of them is bound, it being understood that with
respect to investment restrictions as contained in the CDC Nvest Trust's
Agreement and Declaration of Trust, By-Laws or then-current prospectuses or
statement of additional information, such counsel may rely upon a
certificate of an officer of the CDC Nvest Trust; (v) to the knowledge of
such counsel, no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the CDC Nvest
Trust on behalf of the Acquiring Fund of the transactions contemplated
herein, except such as have been obtained under the 1933 Act, the 1934 Act
and the 1940 Act and such as may be required under state securities or blue
sky laws; (vi) the CDC Nvest Trust is registered with the Commission as an
investment company under the 1940 Act; and (vii) to the knowledge of such
counsel, no litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or threatened as
to the CDC Nvest Trust or the Acquiring Fund or any of their properties or
assets that challenges or seeks to prohibit, restrain or enjoin the
transactions contemplated by this Agreement. In addition, such counsel
shall also state that they have participated in conferences with officers
and other representatives of the Acquiring Fund at which the contents of
the Registration Statement and related matters were discussed, and,
although they are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement, on the basis of the foregoing (relying as to
materiality upon the opinions of officers and other representatives of the
Acquiring Fund), no facts have come to their attention that lead them to
believe that the Registration Statement as of its date, as of the date of
the Acquired Fund shareholders' meeting or as of the Exchange Date,
40
contained an untrue statement of a material fact regarding the Acquiring
Fund or omitted to state a material fact required to be stated therein or
necessary to make the statements therein regarding the Acquiring Fund, in
light of the circumstances under which they were made, not misleading. Such
opinion may state that such counsel does not express any opinion or belief
as to the financial statements or other financial data, or as to the
information relating to the Acquired Fund, contained in the Acquired Fund
Proxy Statement or the Registration Statement, and that such opinion is
solely for the benefit of the Acquired Fund, its Trustees and its officers.
f. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx, dated the Exchange Date (which opinion would be based upon certain
factual representations and subject to certain qualifications), in form
satisfactory to the Acquired Fund to the effect that, on the basis of the
existing provisions of the Code, current administrative rules and court
decisions, for federal income tax purposes: (i) the transactions
contemplated by this Agreement will constitute a reorganization within the
meaning of Section 368(a) of the Code, and the Acquiring Fund and the
Acquired Fund will each be "a party to the reorganization" within the
meaning of Section 368(b) of the Code; (ii) under Section 361 of the Code,
no gain or loss will be recognized by the Acquired Fund (x) upon the
transfer of its assets to the Acquiring Fund in exchange for the Merger
Shares and the assumption by the Acquiring Fund of the liabilities of the
Acquired Fund as contemplated in Section 3 hereof or (y) upon the
distribution of the Merger Shares to the shareholders of the Acquired Fund
as contemplated in Section 3 hereof; (iii) under Section 354 of the Code,
no gain or loss will be recognized by shareholders of the Acquired Fund on
the distribution of Merger Shares to them in exchange for their shares of
the Acquired Fund; (iv) under Section 358 of the Code, the aggregate tax
basis of the Merger Shares that the Acquired Fund's shareholders receive in
place of their Acquired Fund shares will be the same as the aggregate tax
basis of the Acquired Fund shares surrendered in exchange therefor; and (v)
under Section 1223(1) of the Code, an Acquired Fund's shareholder's holding
period for the Merger Shares received pursuant to the Agreement will be
determined by including the holding period for the Acquired Fund shares
exchanged for the Merger Shares, provided that the shareholder held the
Acquired Fund shares as a capital asset.
g. That all actions taken by the CDC Nvest Trust on behalf of the
Acquiring Fund in connection with the transactions contemplated by this
Agreement and all documents incidental thereto shall be satisfactory in
form and substance to the Acquired Fund and Ropes & Xxxx.
h. That the CDC Nvest Trust shall have received from the Commission
and any relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act, the
1940 Act and any applicable state securities or blue sky laws in connection
with the transactions contemplated hereby, and that all such orders shall
be in full force and effect.
41
i. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired
Fund entitled to vote.
j. That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the CDC Nvest Trust or the
Acquiring Fund, threatened by the Commission.
10. INDEMNIFICATION.
a. The Acquired Fund shall indemnify and hold harmless, out of the
assets of the Acquired Fund but no other assets, the CDC Nvest Trust and
the trustees and officers of the CDC Nvest Trust (for purposes of this
Section 10(a), the "CDC 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 CDC 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 CDC Indemnified Parties may
be involved or with which any one or more of the CDC Indemnified Parties
may be threatened by reason of any untrue statement or alleged untrue
statement of a material fact relating to the J&V Trust or the Acquired Fund
contained in this Agreement, the Registration Statement, the J&V 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
J&V Trust or the Acquired Fund required to be stated therein or necessary
to make the statements relating to the J&V Trust or the Acquired Fund
therein not misleading, including, without limitation, any amounts paid by
any one or more of the CDC 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 J&V Trust or
the Acquired Fund. The CDC Indemnified Parties will notify the J&V Trust
and the Acquired Fund in writing within ten days after the receipt by any
one or more of the CDC Indemnified Parties of any notice of legal process
or any suit brought against or claim made against such CDC 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 CDC
Indemnified Parties the defense of any such claim, action, suit or
proceeding, and if the Acquired Fund elects to assume such defense, the CDC
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 CDC 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 CDC Indemnified Parties' first
paying the same.
42
b. The Acquiring Fund shall indemnify and hold harmless, out of the
assets of the Acquiring Fund but no other assets, the J&V Trust and the
trustees and officers of the J&V Trust (for purposes of this Section 10(b),
the "J&V 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 J&V 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 J&V Indemnified Parties may be
involved or with which any one or more of the J&V 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 CDC Nvest 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 CDC Nvest
Trust or the Acquiring Fund required to be stated therein or necessary to
make the statements relating to the CDC Nvest Trust or the Acquiring Fund
therein not misleading, including, without limitation, any amounts paid by
any one or more of the J&V 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 CDC Nvest
Trust or the Acquiring Fund. The J&V Indemnified Parties will notify the
CDC Nvest Trust and the Acquiring Fund in writing within ten days after the
receipt by any one or more of the J&V Indemnified Parties of any notice of
legal process or any suit brought against or claim made against such J&V
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 J&V Indemnified Parties the defense of any such claim,
action, suit or proceeding, and, if the Acquiring Fund elects to assume
such defense, the J&V 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 J&V 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 J&V
Indemnified Parties' first paying the same.
43
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 J&V Trust or the
CDC Nvest Trust, respectively, who, by reason of such dealings, is entitled to
any broker's or finder's or other similar fee or commission arising out of the
transactions contemplated by this Agreement.
12. TERMINATION. The Acquired Fund and the Acquiring Fund may, by mutual
consent of the trustees on behalf of each Fund, terminate this Agreement, and
the Acquired Fund or the Acquiring Fund, after consultation with counsel and by
consent of its trustees or an officer authorized by such trustees, may waive any
condition to its respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially completed by February
28, 2002, this Agreement shall automatically terminate on that date unless a
later date is agreed to by the Acquired Fund and the Acquiring Fund.
13. COVENANTS, ETC. DEEMED MATERIAL. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
14. RULE 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund
will, in connection with the issuance of any Merger Shares to any person who at
the time of the transaction contemplated hereby is deemed to be an affiliate of
a party to the transaction pursuant to Rule 145(c), cause to be affixed upon the
certificates issued to such person (if any) a legend as follows:
"THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT
TO CDC NVEST JURIKA & XXXXXX RELATIVE VALUE 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.
44
15. REORGANIZATION OF ACQUIRED FUND. The Acquiring Fund will not merge
into, reorganize with or transfer all of its assets to, or engage in a similar
transaction with, another entity unless such other entity shall have agreed to
assume the Acquired Fund's obligation to indemnify the Trustees of the J&V Trust
set forth in Section 4.e hereto.
16. TRUSTEE INSURANCE. The CDC Nvest Trust shall, for a period of six years
after the Exchange Date, take such steps as are necessary to ensure that the
Trustees of the J&V Trust who are Trustees as of the Exchange Date are covered
by liability insurance (or any alternative self-insurance scheme that may be
adopted) as if such J&V Trust Trustees were Trustees of the CDC Nvest Trust
during such period.
17. 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.
18. DECLARATION OF TRUST.
a. A copy of the Agreement and Declaration of Trust of the CDC Nvest
Trust is on file with the Secretary of the Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of
the trustees of the CDC Nvest Trust on behalf of the Acquiring Fund as
trustees and not individually, and that the obligations of this instrument
are not binding upon any of the trustees, officers or shareholders of the
CDC Nvest Trust individually but are binding only upon the assets and
property of the Acquiring Fund.
b. A certificate of trust has been filed with the Secretary of State
of the State of Delaware, and notice is hereby given that this instrument
is executed on behalf of the trustees of the J&V 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 J&V Trust individually but are binding only upon the
assets and property of the Acquired Fund.
45
JURIKA & XXXXXX FUND GROUP,
on behalf of its Jurika & Xxxxxx Value+Growth Fund
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
CDC NVEST FUNDS TRUST I,
on behalf of its CDC Nvest Jurika & Xxxxxx
Relative Value Fund
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
Agreed and accepted as to Section 5 only:
JURIKA & XXXXXX, x.x.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice-Chairman & Principal
cdc ixis asset management north america, l.p.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President and Treasurer
cdc ixis asset management advisers, l.p.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
46
SUB-ITEM 77Q1G(3)
The Agreements and Plans of Reorganization are incorporated by reference to
exhibit (4)(a), exhibit (4)(b) and exhibit (4)(c) to post-effective amendment
no. 1 to Registrant's registration statement filed on Form Type N-14 on December
4, 2001 (Accession No. 0001127563-01-500178).
