AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION dated as of
November 8, 1988 (the "Agreement") between STATE STREET CAPITAL FUND, INC., a
Massachusetts corporation (the "Fund"), and STATE STREET CAPITAL TRUST, a
Massachusetts business trust (the "Trust"), both with principal offices at Xxx
Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.
WHEREAS the Fund is a diversified, open-end management investment
company registered under the Investment Company Act of 1940, as amended;
WHEREAS the Fund has authorized capital stock consisting of 50,000,000
shares of common stock, $1.00 par value; and
WHEREAS the Trust was organized pursuant to an Agreement and Declaration
of Trust (the "Master Trust Agreement") dated November 8, 1988 and is presently
authorized to issue an unlimited number of shares of beneficial interest, $.001
par value.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Plan of Reorganization. The Fund shall, prior to the Effective Time
of the Reorganization, transfer all of its business and assets, and assign all
its liabilities, to the Trust, and the Trust, through a Sub-Trust, shall acquire
all such business and assets, and shall assume all such liabilities of the Fund
then existing, whether absolute, accrued, contingent or otherwise, including
without limitation all liabilities of the Fund to stockholders who elect to
dissent from the transaction contemplated hereby and perfect their appraisal
rights under Massachusetts law and all fees and expenses in connection with the
transaction contemplated hereby in exchange for delivery to the Fund by the
Trust of a number of shares of the Trust (both full and fractional) equivalent
to the number of shares of the Fund outstanding immediately prior to the
Effective Time of the Reorganization. All debts, liabilities, obligations and
duties of the Fund, to the extent that they exist at or after the Effective Time
of the Reorganization, shall after the Effective Time of the Reorganization
attach to the Sub-Trust and may be enforced against the Sub-Trust to the same
extent as if the same had been incurred by the Sub-Trust.
2. Liquidation and Dissolution of the Fund. At the Effective Time of the
Reorganization, the Fund will liquidate and the shares of the Trust (both full
and fractional) received by the Fund will be distributed to the stockholders of
the Fund (other than those stockholders who have objected to the Reorganization
so as to be eligible to perfect statutory appraisal rights) in exchange for
their shares of the Fund, each
stockholder to receive a number of shares of the Trust equal to the number of
shares of the Fund held by him, provided that a stockholder who has objected to
the Reorganization so as to be eligible to perfect statutory appraisal rights
shall have no rights with respect to Trust shares until such time as he has
waived or otherwise relinquished such statutory appraisal rights. Such
liquidation and distribution will be accompanied by the establishment of an open
account on the share records of the Trust in the name of each stockholder of the
Fund and representing the respective pro rata number of shares of the Trust due
such stockholder. Certificates for shares of the Fund issued prior to the
Reorganization shall represent outstanding shares of the Trust after the
Effective Time of the Reorganization. As soon as practicable after the Effective
Time of the Reorganization, the Fund shall file Articles of Dissolution for
recording with the Secretary of State of the Commonwealth of Massachusetts, and
shall take, in accordance with the Massachusetts Business Corporation Law, all
other steps as shall be necessary and proper to effect a complete dissolution of
the Fund.
3. Issued Share. Prior to the Effective Time of the Reorganization and
after the Fund has taken the actions authorized by stockholders of the Fund
pursuant to Section 4(c) hereof, the single share of the Trust heretofore held
by the Fund shall be redeemed and cancelled by the Trust.
4. Conditions Precedent. The obligations of the Fund and the Trust to
effectuate the Plan of Reorganization and Liquidation hereunder shall be subject
to the satisfaction of each of the following conditions:
(a) Each party shall have received an opinion of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. that the Trust is duly formed and validly
existing under the laws of the Commonwealth of Massachusetts and that the shares
of the Trust to be issued pursuant to the terms of this Agreement have been duly
authorized, and, when issued and delivered as provided in this Agreement, will
have been validly issued, fully paid and nonassessable.
(b) Each party shall receive an opinion of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. to the effect that the reorganization
contemplated by this Agreement qualifies as a "reorganization" under Section
368(a)(1) of the Internal Revenue Code of 1954, as amended (the "Code").
(c) A vote approving this Agreement and the Reorganization
contemplated hereby shall have been adopted by at least two-thirds of the
outstanding shares of common stock of the Fund entitled to vote at an annual or
special meeting, such a vote by the stockholders of the Fund at such meeting to
be deemed to authorize the Fund to vote, and the Fund shall have voted, as the
sole stockholder of the Trust to:
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(1) elect Trustees of the Trust;
(2) approve an Investment Advisory Contract (the "Advisory
Contract") between the Trust and State Street Research & Management Company;
(3) approve the selection of Coopers & Xxxxxxx as independent
accountants of the Trust; and
(4) to adopt all other existing contractual agreements of the
Fund for the Trust.
(d) The Board of Trustees of the Trust shall have taken the following
actions at a meeting duly called for such purposes:
(1) approval of the Advisory Contract;
(2) selection of Coopers & Xxxxxxx as independent accountants
of the Trust;
(3) authorization of the issuance by the Trust, prior to the
Effective Time of the Reorganization, of one share of the Trust to the Fund in
consideration of the payment of $1.00 for the purpose of enabling the Fund to
vote on the matters referred to in paragraph (c) in this Section 4;
(4) submission of the matters referred to in paragraph (c) of
this Section 4 to the Fund as the sole stockholder of the Trust; and
(5) authorization of the issuance by the Trust of shares of
the Trust at the Effective Time of the Reorganization in exchange for the assets
of the Fund pursuant to the terms and provisions of this Agreement.
At any time prior to the Effective Time of the Reorganization, any of
the foregoing conditions may be waived by the Board of Directors of the Fund if,
in the judgment of such Board, such waiver shall not have a material adverse
effect on the benefits intended under this Agreement to the stockholders of the
Fund.
5. Effective Time of the Reorganization. The exchange of the Fund's
business and assets for shares of the Trust shall be effective as of the opening
of business on February 1, 1989, or at such other time and date as fixed by the
mutual consent of the parties (the "Effective Time of the Reorganization").
6. Amendment. This Agreement may be amended at any time by action of the
Board of Directors of the Fund or the Trustees of the Trust, notwithstanding
approval thereof by the stockholders of the Fund, provided that no amendment
shall have a material adverse effect on the interests of the stockholders of the
Fund.
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7. Termination. This Agreement and the transactions contemplated hereby
may be terminated and abandoned by resolution of the Board of Directors of the
Fund at any time prior to the Effective Time of the Reorganization, if
circumstances should develop that, in the opinion of the Board, make proceeding
with the Agreement inadvisable.
8. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts.
9. Further Assurances. The Fund and the Trust shall take such further
action as may be necessary or desirable and proper to consummate the transaction
contemplated hereby.
10. Limitation of Liability. The Term "State Street Capital Trust" means
and refers to the Trustees from time to time serving under the Master Trust
Agreement of the Trust dated November 8, 1988, as the same may be subsequently
thereto, or subsequently hereto, amended. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the Trust,
personally, but bind only the assets and property of the Sub-Trust, as provided
in the Master Trust Agreement of the Trust.
STATE STREET CAPITAL FUND, INC.
By: /s/ Xxxxxxxxxxx Xxxxxxxx, Xx.
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Xxxxxxxxxxx Xxxxxxxx, Xx., Clerk
STATE STREET CAPITAL TRUST
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Xxxxxxx X. Xxxxx, Xx., Trustee
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