27
NAME OF REGISTRANT
Franklin Global Trust
File No. 811-09869
EXHIBIT ITEM No. 77Q (g): Exhibit to accompany Exhibit No. 77M.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Plan"), is
made as of this 19th day of June, 2003, by and between FTI Funds
("FTI Trust"), a business trust created under the laws of The
Commonwealth of Massachusetts in 1995 with its principal place
of business at Xxx Xxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, on beha1f of its series, FTI Large Capitalization Growth
and Income Fund, FTI Small Capitalization Equity Fund and FTI
European Smaller Companies Fund ("FTI Funds"), and Franklin
Global Trust ("FG Trust"), a statutory trust created under the
laws of the State of Delaware in 2000 with its principal place
of business at Xxx Xxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, on beha1f of its series, Fiduciary Large Capitalization
Growth and Income Fund, Fiduciary Small Capitalization Equity
Fund and Fiduciary European Smaller Companies Fund ("FGT
Funds").
PLAN OF REORGANIZATION
The reorganization will consist of (i) the acquisition by
FG Trust, on behalf of the FGT Funds, of all of the property,
assets and goodwill of the FTI Funds in exchange solely for the
assumption of all obligations and liabilities of the FTI Funds
by the corresponding FGT Funds and full and fractional shares of
beneficial interest, par value $0.01 per share, of the
corresponding FGT Funds; (ii) the distribution of shares of the
FGT Funds to the shareholders of the corresponding FTI Funds,
according to their respective interests in the FTI Funds, in
complete liquidation of the FTI Funds; and (iii) the dissolution
of the FTI Funds as soon as is practicable after the closing (as
defined in Section 3, hereinafter called the "Closing"), all
upon and subject to the terms and conditions of the Plan
hereinafter set forth.
The FTI Funds and the FGT Funds correspond to each other as
follows:
FTI Large Capitalization corresponds Fiduciary Large
Growth and Income Fund to Capitalization Growth and
Income Fund
FTI Small Capitalization corresponds Fiduciary Small
Equity Fund to Capitalization Equity Fund
FTI European Smaller corresponds Fiduciary European Smaller
Companies Fund to Companies Fund
AGREEMENT
In order to consummate the Plan and in consideration of the
premises and of the covenants and agreements hereinafter set
forth, and intending to be legally bound, the parties hereto
covenant and agree as follows:
1. Sale and Transfer of Assets, Liquidation and Dissolution of
FTI Funds.
(a) Subject to the terms and conditions of the Plan, and in
reliance on the representations and warranties of FG Trust on
behalf of FGT Funds herein contained, and in consideration of
the delivery by FG Trust of the number of FGT Funds' shares
hereinafter provided and the assumption of FG Trust, on behalf
of the FGT Funds, of all of the obligations and liabilities of
the corresponding FTI Funds (as hereinafter provided), FTI Trust
on behalf of each FTI Fund agrees that it will convey, transfer
and deliver to FG Trust, on behalf of each corresponding FGT
Fund, at the closing date (as defined in Section 3, hereinafter
called the "Closing Date") all of FTI Fund's then existing
assets ("Assets"). The transactions contemplated hereby are
intended to qualify as reorganizations within the meaning of
Section 368(a)(1) of the Internal Revenue Code of 1986, as
amended (the "Code").
(b) Subject to the terms and conditions of the Plan, and in
reliance on the representations and warranties of FTI Trust on
behalf of FTI Funds herein contained, and in consideration of
such sale, conveyance, transfer, and delivery, FG Trust, on
behalf of each FGT Fund, agrees at the Closing Date to (i)
assume and pay, to the extent that they exist on or after the
Closing Date, all of the corresponding FTI Fund's obligations
and liabilities, whether absolute, accrued, known or unknown,
contingent or otherwise, including all fees and expenses in
connection with the Plan ("Liabilities"); and (ii) deliver to
FTI Trust the number of each FGT Fund's shares equal to the
number of outstanding shares of the corresponding FTI Fund, as
of 4:00 p.m., Eastern time, on the Closing Date. The value of
each FGT Fund's shares delivered to FTI Trust shall have an
aggregate net asset value equal to the value of the
corresponding FTI Fund's Assets, less Liabilities assumed, all
determined as provided in Section 2 of this Plan and as of the
date and time specified therein.
(c) Immediately following the Closing Date, FTI Trust shall
dissolve itself and the FTI Funds and distribute pro rata to
their shareholders of record as of the close of business on the
Closing Date, shares of the corresponding FGT Funds received by
FTI Funds pursuant to this Section 1. Such liquidation and
distribution shall be accomplished by the establishment of
accounts on the share records of FGT Funds for the benefit of
shareholders of the corresponding FTI Funds of the type and in
the amounts due such shareholders based on their respective
holdings as of the close of business on the Closing Date.
Fractional FGT Funds' shares shall be carried to the third
decimal place. As promptly as practicable after the Closing,
each holder of any outstanding certificate or certificates
representing shares of beneficial interest of the FTI Funds
shall be entitled to surrender the same to the transfer agent
for FGT Funds in exchange for the number of shares of the
corresponding FGT Funds into which the FTI Funds' shares
theretofore represented by the certificate or certificates so
surrendered shall have been converted. Certificates for FGT
Funds' shares shall not be issued, unless specifically requested
by the shareholders. Until so surrendered, each outstanding
certificate which, prior to the Closing, represented shares of
beneficial interest of the FTI Funds shall be deemed for all the
FGT Funds' purposes to evidence ownership of the number of FGT
Funds' shares into which the FTI Funds' shares (which prior to
the Closing were represented thereby) have been converted.
2. Valuation.
(a) The value of the FGT Funds' shares, the FTI Funds' shares
and the FTI Funds' Assets to be acquired by FGT Funds hereunder
shall in each case be computed as of 4:00 p.m. Eastern time on
the Closing Date unless on such date (a) the New York Stock
Exchange ("NYSE") is not open for unrestricted trading or
(b) the reporting of trading on the NYSE or elsewhere is
disrupted or (c) any other extraordinary financial event or
market condition occurs (all such events described in (a), (b)
or (c) are each referred to as a "Market Disruption"). The net
asset value per share of the FGT Funds' shares, the FTI Funds'
shares and the value of the FTI Funds' Assets shall be computed
in accordance with the valuation procedures set forth in the
respective prospectus of the FGT Funds and the FTI Funds.
(b) In the event of a Market Disruption on the proposed Closing
Date so that accurate appraisal of the net asset value of the
FGT Funds' shares, the FTI Funds' shares or the value of the FTI
Funds' Assets is impracticable, the Closing Date shall be
postponed until the first business day when regular trading on
the NYSE shall have been fully resumed and reporting shall have
been restored and other trading markets are otherwise
stabilized.
(c) All computations of value regarding the net asset value of
the FGT Funds' shares, the FTI Funds' shares and the value of
the FTI Funds' Assets shall be made by the investment advisor to
the FGT Funds; provided, however, that all computations of value
shall be subject to review by the FTI Funds.
3. Closing and Closing Date.
The Closing Date shall be July 24, 2003, or such later date
as the parties may mutually agree. The Closing Date shall take
place at the principal office of FTI Trust at 5:00 p.m., Eastern
time, on the Closing Date. FTI Trust, on behalf of FTI Funds,
shall have provided for delivery as of the Closing Date of the
Assets of FTI Funds to be transferred to the account of the
corresponding FGT Funds at FGT Funds' Custodian, Bank of New
York, Mutual Funds Division, 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000. The FGT Funds shall assume all liabilities of the FTI
Funds in connection with the acquisition of Assets, except that
recourse for assumed liabilities relating to an FTI Fund shall
be limited to the corresponding FGT Fund. Also, FTI Trust, on
behalf of FTI Funds, shall deliver at the Closing a list of
names and addresses of the shareholders of record of the FTI
Funds' shares and the number of full and fractional shares of
beneficial interest owned by each such shareholder, indicating
thereon which such shares are represented by outstanding
certificates and which by book-entry accounts, all as of 4:00
p.m., Eastern time, on the Closing Date, certified by its
transfer agent or by its President to the best of its or his
knowledge and belief. FG Trust on behalf of FGT Funds shall
issue and deliver a certificate or certificates evidencing the
shares of beneficial interest of FGT Funds to be delivered to
the accounts of the FTI Funds at said transfer agent registered
in such manner as the officers of FTI Trust on behalf of FTI
Funds may request, or provide evidence satisfactory to FTI Trust
that such FGT Funds' shares have been registered in an account
on the books of the FGT Funds in such manner as the officers of
FTI Trust on behalf of FTI Funds may request.
4. Representations and Warranties by FG Trust on behalf of FGT
Funds.
FG Trust, on behalf of FGT Funds, represents and warrants
to FTI Trust that:
(a) FGT Funds are series of FG Trust, a business trust created
under the laws of the State of Delaware on September 26, 2000,
and are validly existing under the laws of that State. FG Trust
is duly registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end, management investment
company, and that while no FGT Funds' shares have been issued,
they will be issued and sold pursuant to an effective
registration statement filed under the Securities Act of 1933,
as amended (the "1933 Act").
(b) FG Trust is authorized to issue an unlimited number of
shares of beneficial interest of the FGT Funds, par value $0.01
per share, each outstanding share of which is fully paid, non-
assessable, freely transferable and has full voting rights. The
FGT Funds have one class of shares, and an unlimited number of
shares of beneficial interest, par value $0.01 per share, has
been allocated and designated to the FGT Funds' shares. No
shareholder of FG Trust shall have any option, warrant or
preemptive right of subscription or purchase with respect to the
each FGT Fund.
(c) The books and records of FGT Funds accurately summarize the
accounting data represented and contain no material omissions
with respect to the business and operations of FGT Funds.
(d) FG Trust has the power to own all of its properties and
assets, to perform its obligations under the Plan and to
consummate the transactions contemplated herein. FG Trust is
not required to qualify to do business in any jurisdiction in
which it is not so qualified or where failure to qualify would
not subject it to any material liability or disability. FG
Trust has all necessary federal, state and local authorizations,
consents and approvals required to own all of its properties and
assets and to conduct FGT Funds' business as such business is
now being conducted and to consummate the transactions
contemplated herein.
(e) FG Trust, on behalf of FGT Funds, is not a party to or
obligated under any provision of its Declaration of Trust, as
amended ("Declaration of Trust") or Amended and Restated By-laws
("By-laws"), or any contract or any other commitment or
obligation, is not subject to any order or decree that would be
violated by its execution of or performance of its obligations
under the Plan, and no consent, approval, authorization or order
of any court or governmental authority is required for the
consummation by FG Trust of the transactions contemplated by the
Plan, except for the registration of the FGT Funds shares under
the 1933 Act, the 1940 Act, or as may otherwise be required
under the federal and state securities laws or the rules and
regulations thereunder.
(f) FG Trust has elected or intends to elect to treat each of
the FGT Funds as a regulated investment company ("RIC") for
federal income tax purposes under Part I of Subchapter M of the
Code, each of the FGT Funds will be a "fund" as defined in
Section 851(g)(2) of the Code, will qualify as a RIC as of the
Closing Date, and consummation of the transactions contemplated
by the Plan will not cause it to fail to be qualified as a RIC
as of the Closing Date.
(g) FGT Funds are not under jurisdiction of a Court in a Title
11 or similar case within the meaning of Section 368(a)(3)(A) of
the Code.
(h) FGT Funds do not have any unamortized or unpaid
organizational fees or expenses.
(i) All information to be furnished by FG Trust to FTI Trust
for use in preparing any prospectus, proxy materials and other
documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete
and shall comply in all material respects with federal
securities and other laws and regulations applicable thereto.
(j) FGT Funds do not have and will not have any liabilities or
assets prior to the Closing.
(k) FG Trust has no plan or intention to issue additional
shares of the FGT Funds following the reorganization except for
shares issued in the ordinary course of business as series of an
open-end investment company; nor does FG Trust have any plan or
intention to redeem or otherwise reacquire any shares of the FGT
Funds issued pursuant to the reorganization, other than in the
ordinary course of business or to the extent necessary to comply
with any legal obligation under Section 22(e) of the 1940 Act.
(l) FGT Funds will actively continue the FTI Funds' business in
substantially the same manner that the FTI Funds conducted that
business immediately before the reorganization. The FGT Funds
have no plan or intention to sell or otherwise dispose of any of
the former assets of the FTI Funds, except for dispositions made
in the ordinary course of business or dispositions necessary to
maintain qualification as a RIC, although in the ordinary course
of business, the FGT Funds will continuously review their
investment portfolios (as the FTI Funds did before the
reorganization) to determine whether to retain or dispose of
particular stocks or securities, including those included among
the former assets of the FTI Funds.
(m) The Proxy Statement referred to in Section 7(f) hereof
(other than the portions of such documents based on information
furnished by or on behalf of FTI Trust for inclusion or
incorporation by reference therein), and any Prospectus or
Statement of Additional Information of FGT Funds accompanying or
incorporated therein by reference, and any supplement or
amendment to the Proxy Statement or any such Prospectus or
Statement of Additional Information, on the effective and
clearance dates of the Proxy Statement, on the date of the
Special Meeting of the FTI Funds' shareholders, and on the
Closing Date: (a) shall comply in all material respects with
the provisions of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act, the 1940 Act, the rules
and regulations thereunder, and all applicable state securities
laws and the rules and regulations thereunder; and (b) shall not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which the statements were made, not misleading.
5. Representations and Warranties by FTI Trust on behalf of
the FTI Funds.
FTI Trust, on behalf of the FTI Funds, represents and
warrants to FG Trust that:
(a) FTI Funds are series of FTI Trust, a business trust created
under the laws of The Commonwealth of Massachusetts on October
18, 1995, and is validly existing under the laws of that
Commonwealth. FTI Trust is duly registered under the 1940 Act as
an open-end, management investment company, and all of FTI
Trust's FTI Funds' shares sold were sold pursuant to an
effective registration statement filed under the 1933 Act,
except for those shares sold pursuant to the private offering
exemption for the purpose of raising the required initial
capital.
(b) FTI Trust is authorized to issue an unlimited number of
shares of beneficial interest of the FTI Funds, without par
value, each outstanding share of which is fully paid, non-
assessable, freely transferable and has full voting rights, and
currently issues shares of three (3) series. The FTI Funds have
one class of shares, and an unlimited number of shares of
beneficial interest of FTI Trust, without par value, has been
allocated and designated to this class of the FTI Funds.
(c) The financial statements appearing in the FTI Trust's
Annual Report to Shareholders for the fiscal year ended November
30, 2002, audited by Xxxxx & Young, LLP, copies of which have
been delivered to FG Trust, and any interim financial statements
for FTI Trust which may be furnished to FG Trust, fairly present
the financial position of the FTI Funds as of such date and the
results of its operations for the period indicated in conformity
with generally accepted accounting principles applied on a
consistent basis.
(d) The books and records of the FTI Funds accurately summarize
the accounting data represented and contain no material
omissions with respect to the business and operations of the FTI
Funds.
(e) FTI Trust has the power to own all of its properties and
assets, to perform its obligations under the Plan and to
consummate the transactions contemplated herein. FTI Trust is
not required to qualify to do business in any jurisdiction in
which it is not so qualified or where failure to qualify would
not subject it to any material liability or disability. FTI
Trust has all necessary federal, state and local authorizations,
consents and approvals required to own all of its properties and
assets and to conduct the FTI Funds' business as such business
is now being conducted and to consummate the transactions
contemplated herein.
(f) FTI Trust on behalf of the FTI Funds is not a party to or
obligated under any provision of its Agreement and Declaration
of Trust or By-laws, or any contract or any other commitment or
obligation, and is not subject to any order or decree, that
would be violated by its execution of or performance under the
Plan. FTI Trust has furnished FG Trust with copies or
descriptions of all material agreements or other arrangements to
which the FTI Funds are a party. The FTI Funds have no material
contracts or other commitments (other than the Plan or
agreements for the purchase of securities entered into in the
ordinary course of business and consistent with its obligations
under the Plan) which will not be terminated by the FTI Funds in
accordance with their terms at or prior to the Closing Date.
(g) FTI Trust has elected to treat each of the FTI Funds as a
RIC for federal income tax purposes under Part I of Subchapter M
of the Code, each of the FTI Funds has qualified as a RIC for
each taxable year since its inception and will qualify as a RIC
as of the Closing Date, and consummation of the transactions
contemplated by the Plan will not cause it to fail to be
qualified as a RIC as of the Closing Date.
(h) The FTI Funds are not under jurisdiction of a Court in a
Title 11 or similar case within the meaning of Section
368(a)(3)(A) of the Code.
(i) The FTI Funds do not have any unamortized or unpaid
organization fees or expenses.
(j) The Prospectus of the FTI Funds, dated April 1, 2003, and
the corresponding Statement of Additional Information, dated
April 1, 2003, do not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading,
and any amended, revised, or new prospectus or statement of
additional information of the FTI Funds or any supplement
thereto, that is hereafter filed with the Securities and
Exchange Commission ("SEC") (copies of which documents shall be
provided to FG Trust promptly after such filing), shall not
contain any untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading.
(k) The FTI Funds do not have any known liabilities, costs or
expenses of a material amount, contingent or otherwise, other
than those reflected in the financial statements referred to in
Section 5(c) hereof and those incurred in the ordinary course of
business as an investment company since the dates of those
financial statements. On the Closing Date, FTI Trust shall
advise FG Trust in writing of all the FTI Funds' known
liabilities, contingent or otherwise, whether or not incurred in
the ordinary course of business, existing or accrued at such
time.
(l) Since November 30, 2002, there has not been any material
adverse change in the FTI Funds' financial condition, assets,
liabilities, or business other than changes occurring in the
ordinary course of business.
(m) No consent, approval, authorization, or order of any court
or governmental authority is required for the consummation by
the FTI Funds or FTI Trust of the transactions contemplated by
the Plan, except as may be required under the federal or state
securities laws or the rules and regulations thereunder.
(n) The information to be furnished by FTI Trust or the FTI
Funds for use in preparing the Proxy Statement referred to in
Section 7(f) hereof, and any other documents which may be
necessary in connection with the transactions contemplated
hereby, shall be accurate and complete and shall comply in all
material respects with federal securities and other laws and
regulations thereunder applicable thereto.
(o) There is no plan or intention of the FTI Funds'
shareholders who individually own 5% or more of shares of the
FTI Funds and, to the best of FTI Trust's knowledge, there is no
plan or intention of the remaining FTI Funds' shareholders to
redeem or otherwise to dispose of any shares of FGT Funds to be
received by them in the reorganization (other than redemptions
and dispositions of shares of FGT Funds that may occur in the
future as a consequence of investment decisions unrelated to the
reorganization). FTI Trust does not anticipate dispositions of
shares of the FTI Funds at the time or soon after the
reorganization to exceed the usual rate and frequency of
redemptions of shares of the FTI Funds as series of an open-end
investment company. Consequently, FTI Trust is not aware of any
plan that would cause the percentage of shareholder interests,
if any, that will be disposed of as a result of or at the time
of the reorganization to be 1% or more of the shares of the FTI
Funds outstanding as of the Closing Date.
(p) The statement of assets and liabilities to be furnished by
it as of 4:00 p.m. Eastern time on the Closing Date for the
purpose of determining the number of FGT Funds' shares to be
issued pursuant to Section 1 of the Plan, will accurately
reflect each FTI Fund's Assets and outstanding shares of
beneficial interest, as of such date, in conformity with
generally accepted accounting principles applied on a consistent
basis.
(q) At the Closing, it will have good and marketable title to
all of the Assets shown on the statement of assets and
liabilities referred to in (a) above, except such imperfections
of title as do not materially detract from the value or use of
the Assets subject thereto, or materially affect title thereto.
(r) As of the Closing Date, the FTI Funds will not have
outstanding any warrants, options, convertible securities, or
any other type of rights pursuant to which any person could
acquire shares of the FTI Funds, except for the right of
investors to acquire shares at net asset value in the normal
course of business as open-end diversified management investment
companies operating under the 1940 Act.
(s) Throughout the five-year period ending on the Closing Date,
the FTI Funds will have conducted their historic business within
the meaning of Section 1.368-1(d) of the Income Tax Regulations
under the Code in a substantially unchanged manner.
6. Representations and Warranties by FTI Trust and FG Trust.
FTI Trust, on behalf of the FTI Funds, and FG Trust, on
behalf of the FGT Funds, each represents and warrants to the
other that:
(a) Except as disclosed in its currently effective prospectus
relating to the FTI Funds, in the case of FTI Trust, and the FGT
Funds, in the case of FG Trust, there is no material suit,
judicial action, or legal or administrative proceeding pending
or threatened against it. Neither FG Trust nor FTI Trust is a
party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially and
adversely affects the FGT Funds' or the FTI Funds' business or
their ability to consummate the transactions herein
contemplated.
(b) There are no known actual or proposed deficiency
assessments with respect to any taxes payable by it.
(c) The execution, delivery, and performance of the Plan have
been duly authorized by all necessary action of its Board of
Trustees, and the Plan, subject to the approval of the FTI
Funds' shareholders in the case of FTI Trust, constitutes a
valid and binding obligation enforceable in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency,
reorganization arrangement, moratorium, and other similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles.
(d) It anticipates that consummation of the Plan will not cause
the FTI Funds, in the case of FTI Trust, and the FGT Funds, in
the case of FG Trust, to fail to conform to the requirements of
Subchapter M of the Code for federal income taxation as a RIC at
the end of its fiscal year.
7. Covenants of FTI Trust and FG Trust.
(a) FTI Trust, on behalf of the FTI Funds, and FG Trust, on
behalf of the FGT Funds, each covenant to operate their
respective businesses as presently conducted between the date
hereof and the Closing, it being understood that such ordinary
course of business will include customary dividends and
distributions and any other distribution necessary or desirable
to avoid federal income or excise taxes.
(b) FTI Trust, on behalf of the FTI Funds, undertakes that it
will not acquire the FGT Funds' shares for the purpose of making
distributions thereof to anyone other than the FTI Funds'
shareholders.
(c) FTI Trust, on behalf of the FTI Funds, undertakes that, if
the Plan is consummated as to one or more FTI Funds, such FTI
Funds will liquidate and dissolve, and if the Plan is
consummated for all FTI Funds, FTI Trust will liquidate and
dissolve itself and all FTI Funds.
(d) FTI Trust, on behalf of the FTI Funds, and FG Trust, on
behalf of the FGT Funds, each agree that, by the Closing, all of
their Federal and other tax returns and reports required by law
to be filed on or before such date shall have been filed, and
all Federal and other taxes shown as due on said returns shall
have either been paid or adequate liability reserves shall have
been provided for the payment of such taxes, and to the best of
their knowledge no such tax return is currently under audit and
no tax deficiency or liability has been asserted with respect to
such tax returns or reports by the Internal Revenue Service or
any state or local tax authority.
(e) At the Closing, FTI Trust, on behalf of the FTI Funds, will
provide the FGT Funds a copy of the shareholder ledger accounts,
certified by the FTI Funds' transfer agent or their President to
the best of its or his knowledge and belief, for all the
shareholders of record of the FTI Funds' shares as of 4:00 p.m.,
Eastern time, on the Closing Date who are to become shareholders
of the FGT Funds as a result of the transfer of assets that is
the subject of the Plan.
(f) The Board of Trustees of FTI Trust shall call and FTI Trust
shall hold, a Special Joint Meeting of the FTI Funds'
shareholders to consider and vote upon the Plan (the "Special
Meeting") and FTI Trust shall take all other actions reasonably
necessary to obtain approval of the transactions contemplated
herein. FTI Trust agrees (i) to file with the SEC, and (ii) to
mail to each shareholder of record of FTI Funds entitled to vote
at the Special Meeting at which action on the Plan is to be
considered, in sufficient time to comply with requirements as to
notice thereof, a Proxy Statement that complies in all material
respects with the applicable provisions of Section 14(a) of the
1934 Act, as amended, and Section 20(a) of the 1940 Act, and the
rules and regulations, respectively, thereunder. At the time it
becomes effective, at the time of the Special Meeting, and at
the Closing Date, the Proxy Statement will (i) comply in all
material respects with the applicable provisions of the 1934
Act, and the rules and regulations promulgated thereunder; and
(ii) not contain any untrue statement of material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(g) Subject to the provisions of the Plan, FG Trust and FTI
Trust each shall take, or cause to be taken, all action, and do
or cause to be done, all things reasonably necessary, proper or
advisable to consummate the transactions contemplated by the
Plan.
(h) FTI Trust shall furnish to FG Trust on the Closing Date a
Statement of Assets and Liabilities of the FTI Funds as of the
Closing Date, which statement shall be prepared in accordance
with GAAP consistently applied and shall be certified by the FTI
Funds' Treasurer or Assistant Treasurer. As promptly as
practicable, but in any case, within forty-five (45) days after
the Closing Date, FTI Trust shall furnish to FG Trust, in such
form as is reasonably satisfactory to FG Trust, a statement of
the earnings and profits of the FTI Funds for federal income tax
purposes, and of any capital loss carryovers and other items
that will be carried over to the FGT Funds as a result of
Section 381 of the Code, which statement shall be certified by
the FTI Funds' Treasurer or Assistant Treasurer. FTI Trust
covenants that each of the FTI Funds have no earnings and
profits that were accumulated by it or any acquired entity
during a taxable year when it or such entity did not qualify as
a RIC under the Code, or, if it has such earnings and profits,
it shall distribute them to its shareholders prior to the
Closing Date.
(i) FTI Trust shall deliver to FG Trust at the Closing Date
confirmation or other adequate evidence as to the tax costs and
holding periods of the assets and property of the FTI Funds
transferred to FG Trust in accordance with the terms of the
Plan.
8. Conditions Precedent to be Fulfilled by FTI Trust and FG
Trust.
The consummation of the Plan hereunder shall be subject to
the following respective conditions:
(a) That: (i) all the representations and warranties of the
other party contained herein shall be true and correct as of the
Closing with the same effect as though made as of and at such
date; (ii) the other party shall have performed all obligations
required by the Plan to be performed by it prior to the Closing;
and (iii) the other party shall have delivered to such party a
certificate signed by the President and by the Secretary or
equivalent officer to the foregoing effect.
(b) That each party shall have delivered to the other party a
copy of the resolutions approving the Plan adopted and approved
by the appropriate action of the Board of Trustees certified by
its Secretary or equivalent officer of each of the Funds.
(c) That the SEC shall not have issued an unfavorable
management report under Section 25(b) of the 1940 Act or
instituted or threatened to institute any proceeding seeking to
enjoin consummation of the Plan under Section 25(c) of the 1940
Act. And, further, no other legal, administrative or other
proceeding shall have been instituted or threatened that would
materially affect the financial condition of either party or
would prohibit the transactions contemplated hereby.
(d) That the Plan and reorganizations contemplated hereby shall
have been adopted and approved by the appropriate action of the
shareholders of the FTI Funds at an annual or special meeting or
any adjournment thereof.
(e) That a distribution or distributions shall have been
declared for each of the FTI Funds prior to the Closing Date
that, together with all previous distributions, shall have the
effect of distributing to its shareholders (i) all of its
ordinary income and all of its capital gain net income, if any,
for the period from the close of its last fiscal year to 4:00
p.m. Eastern time on the Closing Date; and (ii) any
undistributed ordinary income and capital gain net income from
any period to the extent not otherwise declared for
distribution. Capital gain net income has the meaning given
such term by Section 1222(a) of the Code.
(f) That there shall be delivered to FTI Trust, on behalf of
the FTI Funds, and FG Trust, on behalf of the FGT Funds, an
opinion from Messrs. Xxxxxxxx, Xxxxx, Xxxxxxx & Xxxxx, LLP,
counsel to FG Trust, to the effect that, provided the
acquisition contemplated hereby is carried out in accordance
with this Plan and with the laws of the Commonwealth of
Massachusetts and State of Delaware, and based upon certificates
of the officers of FTI Trust and FG Trust with regard to matters
of fact for each FTI Fund and corresponding FGT Fund:
(1) The acquisition by the FGT Fund of all the assets of the
FTI Fund as provided for herein in exchange for the FGT Fund's
shares and the assumption by the FGT Fund of all of the
liabilities of the FTI Fund, followed by the distribution by the
FTI Fund to its shareholders of the FGT Fund's shares in
complete liquidation of the FTI Fund will qualify as a
reorganization within the meaning of Section 368(a)(1) of the
Code, and the FTI Fund and the FGT Fund will each be a "party to
the reorganization" within the meaning of Section 368(b) of
the Code;
(2) No gain or loss will be recognized by the FTI Fund upon the
transfer of all of its assets to, and assumption of its
liabilities by, the FGT Fund in exchange solely for voting
shares of the FGT Fund (Sections 361(a) and 357(a) of the Code);
(3) The FGT Fund will recognize no gain or loss upon the
receipt of all of the assets of the corresponding FTI Fund, in
exchange solely for voting shares of the FGT Fund (Section
1032(a) of the Code);
(4) No gain or loss will be recognized by the FTI Fund upon the
distribution of the corresponding FGT Fund's shares to its
shareholders in complete liquidation of the FTI Fund (in
pursuance of the Plan) (Section 361(c)(1) of the Code);
(5) The basis of the assets of the FTI Fund received by the FGT
Fund will be the same as the basis of such assets to the FTI
Fund immediately prior to the reorganization (Section 362(b) of
the Code);
(6) The holding period of the assets of the FTI Fund received
by the FGT Fund will include the period during which such assets
were held by the FTI Fund (Section 1223(2) of the Code);
(7) No gain or loss will be recognized to the shareholders of
the FTI Fund upon the exchange of their shares in the FTI Fund
for voting shares of the FGT Fund (including fractional shares
to which they may be entitled) (Section 354(a) of the Code);
(8) The basis of a FGT Fund's shares received by the
shareholders of the FTI Fund shall be the same as the basis of
the FTI Fund's shares exchanged therefor (Section 358(a)(1) of
the Code);
(9) The holding period of the FGT Fund's shares received by
shareholders of the FTI Fund (including fractional shares to
which they may be entitled) will include the holding period of
the FTI Fund's shares surrendered in exchange therefor, provided
that the FTI Fund's shares were held as a capital asset on the
effective date of the exchange (Section 1223(1) of the
Code); and
(10) A FGT Fund will succeed to and take into account as of the
date of the transfer (as defined in Section 1.381(b)-1(b) of the
regulations issued by the United States Treasury ("Treasury
Regulations") the items of the FTI 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
Treasury Regulations.
(g) That there shall be delivered to FG Trust on behalf of the
FGT Funds an opinion in form and substance satisfactory to it
from Messrs. Xxxxxxxx, Xxxxx, Xxxxxxx & Xxxxx, LLP, counsel to
FTI Trust on behalf of the FTI Funds, to the effect that,
subject in all respects to the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance,
and other laws now or hereafter affecting generally the
enforcement of creditors' rights:
(1) Each of the FTI Funds is a series of FTI Trust and the FTI
Trust is a validly existing business trust in good standing
under the laws of The Commonwealth of Massachusetts;
(2) FTI Trust is authorized to issue an unlimited number of
shares of beneficial interest, without a par value, of the FTI
Funds. One class of shares of the FTI Funds has been designated
as the FTI Funds' shares, and an unlimited number of shares of
beneficial interest of FTI Trust have been allocated to the FTI
Funds' shares. Assuming that the initial shares of beneficial
interest of the FTI Funds were issued in accordance with the
1940 Act and the Declaration of Trust, as amended, and By-laws,
as amended and restated, of FTI Trust, and that all other
outstanding shares of the FTI Funds were sold, issued and paid
for in accordance with the terms of the FTI Funds' prospectus in
effect at the time of such sales, each such outstanding share is
duly authorized, fully paid, and non-assessable;
(3) The FTI Trust is an open-end investment company of the
management type registered as such under the 1940 Act;
(4) Except as disclosed in the FTI Funds' currently effective
prospectus, such counsel does not know of any material suit,
action, or legal or administrative proceeding pending or
threatened against the FTI Funds, the unfavorable outcome of
which would materially and adversely affect FTI Trust or the FTI
Funds;
(5) The execution and delivery of the Plan and the consummation
of the transactions contemplated hereby have been duly
authorized by all necessary trust action on the part of FTI
Trust on behalf of the FTI Funds; and
(6) Neither the execution, delivery, nor performance of the
Plan by FTI Trust on behalf of the FTI Funds violates any
provision of its Declaration of Trust or By-laws, or the
provisions of any agreement or other instrument filed by FTI
Trust as an exhibit to its Registration Statement on Form N-1A;
the Plan is the legal, valid and binding obligation of FTI Trust
on behalf of the FTI Funds and is enforceable against FTI Trust
on behalf of the FTI Funds in accordance with its terms.
In giving the opinions set forth above, this counsel may state
that it is relying on certificates of the officers of FTI Trust
with regard to matters of fact, and certain certifications and
written statements of governmental officials with respect to the
good standing of FTI Trust.
(h) That there shall be delivered to FTI Trust on behalf of the
FTI Funds an opinion in form and substance satisfactory to it
from Messrs. Xxxxxxxx, Xxxxx, Xxxxxxx & Xxxxx, LLP, counsel to
FG Trust on behalf of the FGT Funds, to the effect that, subject
in all respects to the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws
now or hereafter affecting generally the enforcement of
creditors' rights:
(1) Each of the FGT Funds is a series of FG Trust and FG Trust
is a validly existing statutory trust in good standing under the
laws of the State of Delaware;
(2) FG Trust is authorized to issue an unlimited number of
shares of beneficial interest, par value $0.01 per share of the
FGT Funds. One class of shares FGT Funds has been designated as
the FGT Funds' shares, and an unlimited number of shares of
beneficial interest, par value $0.01 per share, have been
allocated to the FGT Funds' shares. Assuming that the shares of
beneficial interest of the FGT Funds to be delivered pursuant to
the Plan are sold, issued and paid for in accordance with the
terms of the FGT Funds' prospectus in effect at the time of the
Closing, each such share of the FGT Funds is validly issued,
fully paid, and non-assessable;
(3) Each of the FGT Funds is a series of the FG Trust, an open-
end investment company of the management type registered as such
under the 1940 Act;
(4) Such counsel does not know of any material suit, action, or
legal or administrative proceeding pending or threatened against
the FGT Funds, the unfavorable outcome of which would materially
and adversely affect FG Trust or the FGT Funds;
(5) The execution and delivery of the Plan and the consummation
of the transactions contemplated hereby have been duly
authorized by all necessary trust action on the part of FG Trust
on behalf of the FGT Funds;
(6) Neither the execution, delivery, nor performance of the
Plan by FG Trust on behalf of the FGT Funds violates any
provision of its Declaration of Trust or By-laws, or the
provisions of any agreement or other instrument filed by FG
Trust as an exhibit to its Registration Statement on Form N-1A;
the Plan is the legal, valid and binding obligation of FG Trust
on behalf of the FGT Funds and is enforceable against FG Trust
on behalf of the FGT Funds in accordance with its terms; and
(7) The Registration Statement of FG Trust, of which the
prospectus dated June 19, 2003 of the FGT Funds is a part (the
"Prospectus") is, at the time of the signing of the Plan,
effective under the 1933 Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of such
registration statement has been issued, and no proceedings for
such purpose have been instituted or are pending before or
threatened by the SEC under the 1933 Act, and nothing has come
to counsel's attention that causes it to believe that, at the
time the Prospectus became effective, or at the time of the
signing of the Plan, or at the Closing, such Prospectus (except
for the financial statements and other financial and statistical
data included therein, as to which counsel need not express an
opinion), contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and
such counsel knows of no legal or government proceedings
required to be described in the Prospectus, or of any contract
or document of a character required to be described in the
Prospectus that is not described as required.
In giving the opinions set forth above, this counsel may
state that it is relying on certificates of the officers of FG
Trust with regard to matters of fact, and certain certifications
and written statements of governmental officials with respect to
the good standing of FG Trust.
(i) That the FTI Funds shall have received a certificate from
the President and Secretary of FG Trust on behalf of FGT Funds
to the effect that the statements contained in the Prospectus,
at the time the Prospectus became effective, at the date of the
signing of the Plan, and at the Closing, 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.
(j) That FG Trust's Registration Statement with respect to FGT
Funds' shares to be delivered to FTI Funds' shareholders in
accordance with the Plan shall have become effective, and no
stop order suspending the effectiveness of the Registration
Statement or any amendment or supplement thereto, shall have
been issued prior to the Closing Date or shall be in effect at
Closing, and no proceedings for the issuance of such an order
shall be pending or threatened on that date.
(k) That the FGT Funds' shares to be delivered hereunder shall
be eligible for sale with each state commission or agency with
which such eligibility is required in order to permit the FGT
Funds' shares lawfully to be delivered to each holder of FTI
Funds' shares.
(l) That, at the Closing, there shall be transferred to FG
Trust on behalf of FGT Funds, aggregate Assets of the
corresponding FTI Funds comprising at least 90% in fair market
value of the total net assets and 70% of the fair market value
of the total gross assets recorded on the books of each FTI Fund
on the Closing Date.
(m) That there be delivered to FG Trust on behalf of FGT Funds
information concerning the tax basis of FTI Funds in all
securities transferred to the corresponding FGT Funds, together
with shareholder information including the names, addresses, and
taxpayer identification numbers of the shareholders of FTI Funds
as of the Closing Date, the number of shares held by each
shareholder, the dividend reinvestment elections applicable to
each shareholder, and the backup withholding and nonresident
alien withholding certifications, notices or records on file
with FTI Funds respect to each shareholder.
9. Brokerage Fees and Expenses.
(a) FTI Trust on behalf of FTI Funds and FG Trust on behalf of
FGT Funds each represents and warrants to the other that there
are no broker or finders' fees payable by it in connection with
the transactions provided for herein.
(b) The expenses of entering into and carrying out the
provisions of the Plan shall be borne by Fiduciary
International, Inc. and its affiliates.
10. Termination; Postponement; Waiver; Order.
(a) Anything contained in the Plan to the contrary
notwithstanding, the Plan may be terminated and the
reorganization abandoned at any time (whether before or after
approval thereof by the shareholders of the FTI Funds) prior to
the Closing, or the Closing may be postponed as follows:
(1) by mutual consent of FTI Trust on behalf of FTI
Funds and FG Trust on behalf of FGT Funds;
(2) by FG Trust on behalf of FGT Funds if any condition of its
obligations set forth in Section 8 has not been fulfilled or
waived and it reasonably appears that such condition or
obligation will not or cannot be met; or
(3) by FTI Trust on behalf of FTI Funds if any condition of its
obligations set forth in Section 8 has not been fulfilled or
waived and it reasonably appears that such condition or
obligation will not or cannot be met.
An election by FG Trust or FTI Trust to terminate the Plan
and to abandon the reorganization shall be exercised,
respectively, by the Board of Trustees of either FG Trust or FTI
Trust.
(b) If the transactions contemplated by the Plan have not been
consummated by July 31, 2003, the Plan shall automatically
terminate on that date, unless a later date is agreed to by both
FG Trust and FTI Trust.
(c) In the event of termination of the Plan pursuant to the
provisions hereof, the same shall become void and have no
further effect, and neither FTI Trust, FG Trust, FTI Funds nor
FGT Funds, nor their trustees, officers, or agents or the
shareholders of FTI Funds or FGT Funds shall have any liability
in respect of the Plan, but all expenses incidental to the
preparation and carrying out of the Plan shall be paid as
provided in Section 9(b) hereof.
(d) At any time prior to the Closing, any of the terms or
conditions of the Plan may be waived by the party who is
entitled to the benefit thereof by action taken by that party's
Board of Trustees if, in the judgment of such Board of Trustees,
such action or waiver will not have a material adverse effect on
the benefits intended under the Plan to its shareholders, on
behalf of whom such action is taken.
(e) The respective representations and warranties contained in
Sections 4 to 6 hereof shall expire with and terminate on the
Closing Date, and neither FTI Trust nor FG Trust, nor any of
their officers, trustees, agents or shareholders shall have any
liability with respect to such representations or warranties
after the Closing Date. This provision shall not protect any
officer, trustee, agent or shareholder of FTI Trust or FG Trust
against any liability to the entity for which that officer,
trustee, agent or shareholder so acts or to its shareholders to
which that officer, trustee, agent or shareholder would
otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties in
the conduct of such office.
(f) If any order or orders of the SEC with respect to the Plan
shall be issued prior to the Closing and shall impose any terms
or conditions that are determined by action of the Board of
Trustees of FTI Trust, on behalf of FTI Funds, or FG Trust, on
behalf of FGT Funds, to be acceptable, such terms and conditions
shall be binding as if a part of the Plan without further vote
or approval of the shareholders of FTI Funds, unless such terms
and conditions shall result in a change in the method of
computing the number of FGT Funds' shares to be issued to FTI
Funds in which event, unless such terms and conditions shall
have been included in the proxy solicitation material furnished
to the shareholders of FTI Funds prior to the meeting at which
the transactions contemplated by the Plan shall have been
approved, the Plan shall not be consummated and shall terminate
unless FTI Trust shall promptly call a special meeting of the
shareholders of FTI Funds at which such conditions so imposed
shall be submitted for approval.
11. Indemnification.
(a) FG Trust and the FGT Funds shall indemnify, defend and hold
harmless the FTI Funds, FTI Trust, its Board of Trustees,
officers, employees and agents (collectively "Acquired Fund
Indemnified Parties") against all losses, claims, demands,
liabilities and expenses, including reasonable legal and other
expenses incurred in defending third party claims, actions,
suits or proceedings, whether or not resulting in any liability
to such Acquired Fund Indemnified Parties, including amounts
paid by any one or more of the Acquired Fund Indemnified Parties
in a compromise or settlement of any such claim, action, suit or
proceeding, or threatened third party claim, suit, action or
proceeding made with the consent of FG Trust, arising from any
untrue statement or alleged untrue statement of a material fact
contained in the Proxy Statement, as filed and in effect with
the SEC or any application prepared by FG Trust and FGT Funds
with any state regulatory agency in connection with the
transactions contemplated by the Plan under the securities laws
thereof ("Application"); or which arises out of or is based upon
any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that FG
Trust and FGT Funds shall only be liable in such case to the
extent that any such loss, claim, demand, liability or expense
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission about FG Trust
and/or FGT Funds or the transactions contemplated by the Plan
made in the Proxy Statement or any Application.
(b) After the Closing Date, FG Trust, on behalf of the FGT
Funds, shall also indemnify and hold harmless FTI Funds' Board
of Trustees and officers (collectively, "Acquired Fund Covered
Persons") against all losses, claims, demands, liabilities and
expenses, including reasonable legal and other expenses incurred
in defending third party claims, actions, suits or proceedings,
whether or not resulting in any liability to such Acquired Fund
Covered Person, including amounts paid by any one or more of the
Acquired Fund Covered Persons in a compromise or settlement of
any such claim, suit, action or proceeding, or threatened third
party claim, suit, action or proceeding made with the consent of
FG Trust, on behalf of the FGT Funds, to the extent such
Acquired Fund Covered Person is, or would have been, entitled to
indemnification by FTI Trust prior to the Closing Date pursuant
to FTI Trust's Declaration of Trust and By-Laws.
(c) FTI Trust on behalf of FTI Funds, until the time of
FTI Funds' liquidation, shall indemnify, defend, and hold
harmless FGT Funds, FG Trust, its Board of Trustees, officers,
employees and agents ("Acquiring Fund Indemnified Parties")
against all losses, claims, demands, liabilities, and expenses,
including reasonable legal and other expenses incurred in
defending third party claims, actions, suits or proceedings,
whether or not resulting in any liability to such Acquiring Fund
Indemnified Parties, including amounts paid by any one or more
of the Acquiring Fund Indemnified Parties in a compromise or
settlement of any such claim, suit, action, or proceeding, made
with the consent of FTI Trust, arising from any untrue statement
or alleged untrue statement of a material fact contained in the
Proxy Statement, as filed with the SEC or any Application; or
which arises out of or is based upon any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that FTI Trust and FTI Funds
shall only be liable in such case to the extent that any such
loss, claim, demand, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission about FTI Trust and/or FTI Funds or
the transactions contemplated by the Plan made in the Proxy
Statement or any Application.
(d) A party seeking indemnification hereunder is
hereinafter called the "Indemnified Party" and the party from
whom the Indemnified Party is seeking indemnification hereunder
is hereinafter called the "Indemnifying Party." Each
Indemnified Party shall notify the Indemnifying Party in writing
within ten (10) days of the receipt by one or more of the
Indemnified Parties of any notice of legal process of any suit
brought against or claim made against such Indemnified Party as
to any matters covered by this Section 11, but the failure to
notify the Indemnifying Party shall not relieve the Indemnifying
Party from any liability which it may have to any Indemnified
Party otherwise than under this Section 11. The Indemnifying
Party shall be entitled to participate at its own expense in the
defense of any claim, action, suit, or proceeding covered by
this Section 11, or, if it so elects, to assume at its own
expense, the defense thereof with counsel satisfactory to the
Indemnified Parties; provided, however, if the defendants in any
such action include both the Indemnifying Party and any
Indemnified Party and the Indemnified Party shall have
reasonably concluded that there may be legal defenses available
to it which are different from or additional to those available
to the Indemnifying Party, the Indemnified Party shall have the
right to select separate counsel to assume such legal defense
and to otherwise participate in the defense of such action on
behalf of such Indemnified Party.
Upon receipt of notice from the Indemnifying Party to
the Indemnified Parties of the election by the Indemnifying
Party to assume the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Parties under this
Section 11 for any legal or other expenses subsequently incurred
by such Indemnified Parties in connection with the defense
thereof unless (i) the Indemnified Parties shall have employed
such counsel in connection with the assumption of legal defenses
in accordance with the provision of the immediately preceding
sentence (it being understood, however, that the Indemnifying
Parties shall not be liable for the expenses of more than one
separate counsel); (ii) the Indemnifying Parties do not employ
counsel reasonably satisfactory to the Indemnified Parties to
represent the Indemnified Parties within a reasonable amount of
time after notice of commencement of the action; or (iii) the
Indemnifying Parties have authorized the employment of counsel
for the Indemnified Parties at its expense.
(e) This Section 11 shall survive the termination of the Plan
and for a period of three (3) years following the Closing Date.
12. Liability of FG Trust and FTI Trust.
(a) Each party acknowledges and agrees that all obligations of
FG Trust under the Plan are binding only with respect to FGT
Funds; that any liability of FG Trust under the Plan with
respect to an FGT Fund, or in connection with the transactions
contemplated herein with respect to such FGT Fund, shall be
discharged only out of the assets of that FGT Fund; that no
other series of FG Trust shall be liable with respect to the
Plan or in connection with the transactions contemplated herein;
and that neither FTI Trust nor FTI Funds shall seek satisfaction
of any such obligation or liability from the shareholders of FG
Trust, the trustees, officers, employees or agents of FG Trust,
or any of them.
(b) Each party acknowledges and agrees that all obligations of
FTI Trust under the Plan are binding only with respect to the
respective FTI Funds; that any liability of FTI Trust under the
Plan with respect to an FTI Fund, or in connection with the
transactions contemplated herein with respect to such FTI Fund,
shall be discharged only out of the assets of that FTI Fund;
that no other series of FTI Trust shall be liable with respect
to the Plan or in connection with the transactions contemplated
herein; and that neither FG Trust nor FGT Funds shall seek
satisfaction of any such obligation or liability from the
shareholders of FTI Trust, the trustees, officers, employees or
agents of FTI Trust, or any of them.
13. Severability.
Subject to the conditions set forth in the Plan and
notwithstanding anything herein that may be construed to the
contrary, the failure of one of the FTI Funds to consummate the
transactions contemplated hereby shall not, or to comply with
the conditions set forth in Section 8 of the Plan may not,
affect the consummation or validity of the reorganization with
respect to any other FTI Fund, and the provisions of this
Agreement shall be construed to effect this intent, including,
without limitation, as the context requires, construing the
terms "FTI Fund" and "FGT Fund" as meaning only those series of
FTI Trust and FG Trust, respectively, that are involved in the
reorganization as of the Closing Date.
14. Entire Agreement and Amendments.
The Plan embodies the entire agreement between the parties
and there are no agreements, understandings, restrictions, or
warranties relating to the transactions contemplated by the Plan
other than those set forth herein or herein provided for. The
Plan may be amended only by mutual consent of the parties in
writing. Neither the Plan nor any interest herein may be
assigned without the prior written consent of the other party.
15. Counterparts.
The Plan may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such
counterparts together shall constitute but one instrument.
16. Notices.
Any notice, report, or demand required or permitted by any
provision of the Plan shall be in writing and shall be deemed to
have been given if delivered or mailed, first class postage
prepaid, addressed to Franklin Global Trust, at Xxx Xxxxxxxx
Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Secretary, or
the FTI Funds, at One Franklin Parkway, San Mateo, California
94403 Attention: Secretary, as the case may be.
17. Governing Law.
The Plan shall be governed by and carried out in accordance
with the laws of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, FTI Trust, on behalf of FTI Funds, and FG
Trust, on behalf of FGT Funds, have each caused the Plan to be
executed on its behalf by its duly authorized officers, all as
of the date and year first-above written.
FRANKLIN GLOBAL TRUST, on
behalf of Fiduciary Large
Capitalization Growth and
Income Fund, Fiduciary Small
Capitalization Equity Fund
and Fiduciary European
Smaller Companies Fund
Attest:
/s/Xxxxxx X. Xxxxxxx By:/s/Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxx
Secretary Vice President
FTI FUNDS, on behalf of FTI
Large Capitalization Growth
and Income Fund, FTI Small
Capitalization Equity Fund
and FTI European Smaller
Companies Fund
Attest:
/s/Xxxxxx X. Xxxxxxx By:/s/Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxx
Secretary Vice President
