AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") dated as of ___________,
2001 by and between Xxxxxxxxxxx Trinity Growth Fund ("Trinity Growth Fund"), a
Massachusetts business trust and Xxxxxxxxxxx Large Cap Growth Fund ("Large Cap
Growth Fund"), a Massachusetts business trust.
W I T N E S S E T H:
WHEREAS, the parties are each open-end investment companies of the management
type; and
WHEREAS, the parties hereto desire to provide for the reorganization pursuant to
Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the "Code"),
of Trinity Growth Fund through the acquisition by Large Cap Growth Fund of
substantially all of the assets of Trinity Growth Fund in exchange for the
voting shares of beneficial interest ("shares") of Class A, Class B,Class C,
Class N and Class Y shares of Large Cap Growth Fund and the assumption by Large
Cap Growth Fund of certain liabilities of Trinity Growth Fund, which Class A,
Class B, Class C, Class N and Class Y shares of Large Cap Growth Fund are to be
distributed by Trinity Growth Fund pro rata to its shareholders in complete
liquidation of Trinity Growth Fund and complete cancellation of its shares;
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
parties hereto agree as follows:
1. The parties hereto hereby adopt this Agreement and Plan of
Reorganization (the "Agreement") pursuant to Section 368(a)(1) of the Code as
follows: The reorganization will be comprised of the acquisition by Large Cap
Growth Fund of substantially all of the assets of Trinity Growth Fund in
exchange for Class A, Class B, Class C, Class N and Class Y shares of Large Cap
Growth Fund and the assumption by Large Cap Growth Fund of certain liabilities
of Trinity Growth Fund, followed by the distribution of such Class A, Class B,
Class C, Class N and Class Y shares of Large Cap Growth Fund to the Class A,
Class B and Class C shareholders of Trinity Growth Fund in exchange for their
Class A, Class B, Class C, Class N and Class Y shares of Trinity Growth Fund,
all upon and subject to the terms of the Agreement hereinafter set forth.
The share transfer books of Trinity Growth Fund will be permanently closed at
the close of business on the Valuation Date (as hereinafter defined) and only
redemption requests received in proper form on or prior to the close of business
on the Valuation Date shall be fulfilled by Trinity Growth Fund; redemption
requests received by Trinity Growth Fund after that date shall be treated as
requests for the redemption of the shares of Large Cap Growth Fund to be
distributed to the shareholder in question as provided in Section 5 hereof.
2. On the Closing Date (as hereinafter defined), all of the assets of
Trinity Growth Fund on that date, excluding a cash reserve (the "cash reserve")
to be retained by Trinity Growth Fund sufficient in its discretion for the
payment of the expenses of Trinity Growth Fund's dissolution and its
liabilities, but not in excess of the amount contemplated by Section 10E, shall
be delivered as provided in Section 8 to Large Cap Growth Fund, in exchange for
and against delivery to Trinity Growth Fund on the Closing Date of a number of
Class A, Class B, Class C, Class N and Class Y shares of Large Cap Growth Fund,
having an aggregate net asset value equal to the value of the assets of Trinity
Growth Fund so transferred and delivered.
3. The net asset value of Class A, Class B, Class C, Class N and Class Y
shares of Large Cap Growth Fund and the value of the assets of Trinity Growth
Fund to be transferred shall in each case be determined as of the close of
business of The New York Stock Exchange on the Valuation Date. The computation
of the net asset value of the Class A, Class B, Class C, Class N and Class Y
shares of Large Cap Growth Fund and the Class A, Class B, Class C, Class N and
Class Y shares of Trinity Growth Fund shall be done in the manner used by Large
Cap Growth Fund and Trinity Growth Fund, respectively, in the computation of
such net asset value per share as set forth in their respective prospectuses.
The methods used by Large Cap Growth Fund in such computation shall be applied
to the valuation of the assets of Trinity Growth Fund to be transferred to Large
Cap Growth Fund.
Trinity Growth Fund shall declare and pay, immediately prior to the Valuation
Date, a dividend or dividends which, together with all previous such dividends,
shall have the effect of distributing to Trinity Growth Fund's shareholders all
of Trinity Growth Fund's investment company taxable income for taxable years
ending on or prior to the Closing Date (computed without regard to any dividends
paid) and all of its net capital gain, if any, realized in taxable years ending
on or prior to the Closing Date (after reduction for any capital loss
carry-forward).
4. The closing (the "Closing") shall be at the offices of OppenheimerFunds,
Inc. (the "Agent"), 0000 X Xxxxxx Xxx, Xxxxxxxxx, XX 00000, New York time on
__________, 2001 or at such other time or place as the parties may designate or
as provided below (the "Closing Date"). The business day preceding the Closing
Date is herein referred to as the "Valuation Date."
In the event that on the Valuation Date either party has, pursuant to the
Investment Company Act of 1940, as amended (the "Act"), or any rule, regulation
or order thereunder, suspended the redemption of its shares or postponed payment
therefore, the Closing Date shall be postponed until the first business day
after the date when both parties have ceased such suspension or postponement;
provided, however, that if such suspension shall continue for a period of 60
days beyond the Valuation Date, then the other party to the Agreement shall be
permitted to terminate the Agreement without liability to either party for such
termination.
5. In conjunction with the Closing, Trinity Growth Fund shall distribute on
a pro rata basis to the shareholders of Trinity Growth Fund as of the Valuation
Date Class A, Class B, Class C, Class N and Class Y shares of Large Cap Growth
Fund received by Trinity Growth Fund on the Closing Date in exchange for the
assets of Trinity Growth Fund in complete liquidation of Trinity Growth Fund;
for the purpose of the distribution by Trinity Growth Fund of Class A, Class B,
Class C, Class N and Class Y shares of Large Cap Growth Fund to Trinity Growth
Fund's shareholders, Large Cap Growth Fund will promptly cause its transfer
agent to: (a) credit an appropriate number of Class A, Class B, Class C, Class N
and Class Y shares of Large Cap Growth Fund on the books of Large Cap Growth
Fund to each Class A, Class B and Class C shareholder of Trinity Growth Fund in
accordance with a list (the "Shareholder List") of Trinity Growth Fund
shareholders received from Trinity Growth Fund; and (b) confirm an appropriate
number of Class A, Class B, Class C, Class N and Class Y shares of Large Cap
Growth Fund to each Class A, Class B and Class C shareholder of Trinity Growth
Fund; certificates for Class A shares of Large Cap Growth Fund will be issued
upon written request of a former shareholder of Trinity Growth Fund but only for
whole shares, with fractional shares credited to the name of the shareholder on
the books of Large Cap Growth Fund and only after any share certificates for
Trinity Growth Fund are returned to the transfer agent.
The Shareholder List shall indicate, as of the close of business on the
Valuation Date, the name and address of each shareholder of Trinity Growth Fund,
indicating his or her share balance. Trinity Growth Fund agrees to supply the
Shareholder List to Large Cap Growth Fund not later than the Closing Date.
Shareholders of Trinity Growth Fund holding certificates representing their
shares shall not be required to surrender their certificates to anyone in
connection with the reorganization. After the Closing Date, however, it will be
necessary for such shareholders to surrender their certificates in order to
redeem, transfer or pledge the shares of Large Cap Growth Fund which they
received.
6. Within one year after the Closing Date, Trinity Growth Fund shall (a)
either pay or make provision for payment of all of its liabilities and taxes,
and (b) either (i) transfer any remaining amount of the cash reserve to Large
Cap Growth Fund, if such remaining amount (as reduced by the estimated cost of
distributing it to shareholders) is not material (as defined below) or (ii)
distribute such remaining amount to the shareholders of Trinity Growth Fund on
the Valuation Date. Such remaining amount shall be deemed to be material if the
amount to be distributed, after deduction of the estimated expenses of the
distribution, equals or exceeds one cent per share of Trinity Growth Fund
outstanding on the Valuation Date.
7. Prior to the Closing Date, there shall be coordination between the
parties as to their respective portfolios so that, after the Closing, Large Cap
Growth Fund will be in compliance with all of its investment policies and
restrictions. At the Closing, Trinity Growth Fund shall deliver to Large Cap
Growth Fund two copies of a list setting forth the securities then owned by
Trinity Growth Fund. Promptly after the Closing, Trinity Growth Fund shall
provide Large Cap Growth Fund a list setting forth the respective federal income
tax bases thereof.
8. Portfolio securities or written evidence acceptable to Large Cap Growth
Fund of record ownership thereof by The Depository Trust Company or through the
Federal Reserve Book Entry System or any other depository approved by Trinity
Growth Fund pursuant to Rule 17f-4 and Rule 17f-5 under the Act shall be
endorsed and delivered, or transferred by appropriate transfer or assignment
documents, by Trinity Growth Fund on the Closing Date to Large Cap Growth Fund,
or at its direction, to its custodian bank, in proper form for transfer in such
condition as to constitute good delivery thereof in accordance with the custom
of brokers and shall be accompanied by all necessary state transfer stamps, if
any. The cash delivered shall be in the form of certified or bank cashiers'
checks or by bank wire or intra-bank transfer payable to the order of Large Cap
Growth Fund for the account of Large Cap Growth Fund. Class A, Class B, Class C,
Class N and Class Y shares of Large Cap Growth Fund representing the number of
Class A, Class B, Class C, Class N and Class Y shares of Large Cap Growth Fund
being delivered against the assets of Trinity Growth Fund, registered in the
name of Trinity Growth Fund, shall be transferred to Trinity Growth Fund on the
Closing Date. Such shares shall thereupon be assigned by Trinity Growth Fund to
its shareholders so that the shares of Large Cap Growth Fund may be distributed
as provided in Section 5.
If, at the Closing Date, Trinity Growth Fund is unable to make delivery under
this Section 8 to Large Cap Growth Fund of any of its portfolio securities or
cash for the reason that any of such securities purchased by Trinity Growth
Fund, or the cash proceeds of a sale of portfolio securities, prior to the
Closing Date have not yet been delivered to it or Trinity Growth Fund's
custodian, then the delivery requirements of this Section 8 with respect to said
undelivered securities or cash will be waived and Trinity Growth Fund will
deliver to Large Cap Growth Fund by or on the Closing Date with respect to said
undelivered securities or cash executed copies of an agreement or agreements of
assignment in a form reasonably satisfactory to Large Cap Growth Fund, together
with such other documents, including a due xxxx or due bills and brokers'
confirmation slips as may reasonably be required by Large Cap Growth Fund.
9. Large Cap Growth Fund shall not assume the liabilities (except for
portfolio securities purchased which have not settled and for shareholder
redemption and dividend checks outstanding) of Trinity Growth Fund, but Trinity
Growth Fund will, nevertheless, use its best efforts to discharge all known
liabilities, so far as may be possible, prior to the Closing Date. The cost of
printing and mailing the proxies and proxy statements will be borne by Trinity
Growth Fund. Trinity Growth Fund and Large Cap Growth Fund will bear the cost of
their respective tax opinion. Any documents such as existing prospectuses or
annual reports that are included in that mailing will be a cost of the Fund
issuing the document. Any other out-of-pocket expenses of Large Cap Growth Fund
and Trinity Growth Fund associated with this reorganization, including legal,
accounting and transfer agent expenses, will be borne by Trinity Growth Fund and
Large Cap Growth Fund, respectively, in the amounts so incurred by each.
10. The obligations of Large Cap Growth Fund hereunder shall be subject to
the following conditions:
A. The Board of Trustees of Trinity Growth Fund, shall have authorized the
execution of the Agreement, and the shareholders of Trinity Growth Fund
shall have approved the Agreement and the transactions contemplated hereby,
and Trinity Growth Fund shall have furnished to Large Cap Growth Fund
copies of resolutions to that effect certified by the Secretary or the
Assistant Secretary of Trinity Growth Fund; such shareholder approval shall
have been by the affirmative vote required by the Massachusetts Law and its
charter documents at a meeting for which proxies have been solicited by the
Proxy Statement and Prospectus (as hereinafter defined).
B. Large Cap Growth Fund shall have received an opinion dated as of the
Closing Date from counsel to Trinity Growth Fund, to the effect that (i)
Trinity Growth Fund is a business trust duly organized, validly existing
and in good standing under the laws of the State of Massachusetts with full
corporate powers to carry on its business as then being conducted and to
enter into and perform the Agreement; and (ii) that all action necessary to
make the Agreement, according to its terms, valid, binding and enforceable
on Trinity Growth Fund and to authorize effectively the transactions
contemplated by the Agreement have been taken by Trinity Growth Fund.
Massachusetts counsel may be relied upon for this opinion.
C. The representations and warranties of Trinity Growth Fund contained herein
shall be true and correct at and as of the Closing Date, and Large Cap
Growth Fund shall have been furnished with a certificate of the President,
or a Vice President, or the Secretary or the Assistant Secretary or the
Treasurer of Trinity Growth Fund, dated the Closing Date, to that effect.
D. On the Closing Date, Trinity Growth Fund shall have furnished to Large Cap
Growth Fund a certificate of the Treasurer or Assistant Treasurer of
Trinity Growth Fund as to the amount of the capital loss carry-over and net
unrealized appreciation or depreciation, if any, with respect to Trinity
Growth Fund as of the Closing Date.
E. The cash reserve shall not exceed 10% of the value of the net assets, nor
30% in value of the gross assets, of Trinity Growth Fund at the close of
business on the Valuation Date.
F. A Registration Statement on Form N-14 filed by Large Cap Growth Fund under
the Securities Act of 1933, as amended (the "1933 Act"), containing a
preliminary form of the Proxy Statement and Prospectus, shall have become
effective under the 1933 Act.
G. On the Closing Date, Large Cap Growth Fund shall have received a letter of
Xxxxxx X. Xxxxxxx or other senior executive officer of OppenheimerFunds,
Inc. acceptable to Large Cap Growth Fund, stating that nothing has come to
his or her attention which in his or her judgment would indicate that as of
the Closing Date there were any material, actual or contingent liabilities
of Trinity Growth Fund arising out of litigation brought against Trinity
Growth Fund or claims asserted against it, or pending or to the best of his
or her knowledge threatened claims or litigation not reflected in or
apparent from the most recent audited financial statements and footnotes
thereto of Trinity Growth Fund delivered to Large Cap Growth Fund. Such
letter may also include such additional statements relating to the scope of
the review conducted by such person and his or her responsibilities and
liabilities as are not unreasonable under the circumstances.
H. Large Cap Growth Fund shall have received an opinion, dated the Closing
Date, of Deloitte&Touche LLP, to the same effect as the opinion
contemplated by Section 11.E. of the Agreement.
I. Large Cap Growth Fund shall have received at the Closing all of the assets
of Trinity Growth Fund to be conveyed hereunder, which assets shall be free
and clear of all liens, encumbrances, security interests, restrictions and
limitations whatsoever.
11. The obligations of Trinity Growth Fund hereunder shall be subject to
the following conditions:
A. The Board of Trustees of Large Cap Growth Fund shall have authorized the
execution of the Agreement, and the transactions contemplated thereby, and
Large Cap Growth Fund shall have furnished to Trinity Growth Fund copies of
resolutions to that effect certified by the Secretary or the Assistant
Secretary of Large Cap Growth Fund.
B. Trinity Growth Fund's shareholders shall have approved the Agreement and
the transactions contemplated hereby, by an affirmative vote required by
the Massachusetts Law and its charter documents and Trinity Growth Fund
shall have furnished Large Cap Growth Fund copies of resolutions to that
effect certified by the Secretary or an Assistant Secretary of Trinity
Growth Fund.
C. Trinity Growth Fund shall have received an opinion dated as of the Closing
Date from counsel to Large Cap Growth Fund, to the effect that (i) Large
Cap Growth Fund is a business trust duly organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts with full
powers to carry on its business as then being conducted and to enter into
and perform the Agreement; (ii) all action necessary to make the Agreement,
according to its terms, valid, binding and enforceable upon Large Cap
Growth Fund and to authorize effectively the transactions contemplated by
the Agreement have been taken by Large Cap Growth Fund, and (iii) the
shares of Large Cap Growth Fund to be issued hereunder are duly authorized
and when issued will be validly issued, fully-paid and non-assessable,
except as set forth under "Shareholder and Trustee Liability" in Large Cap
Growth Fund's Statement of Additional Information. Massachusetts counsel
may be relied upon for this opinion.
D. The representations and warranties of Large Cap Growth Fund contained
herein shall be true and correct at and as of the Closing Date, and Trinity
Growth Fund shall have been furnished with a certificate of the President,
a Vice President or the Secretary or the Assistant Secretary or the
Treasurer of the Trust to that effect dated the Closing Date.
E. Trinity Growth Fund shall have received an opinion of Deloitte&Touche LLP
to the effect that the federal tax consequences of the transaction, if
carried out in the manner outlined in the Agreement and in accordance with
(i) Trinity Growth Fund's representation that there is no plan or intention
by any Trinity Growth Fund shareholder who owns 5% or more of Trinity
Growth Fund's outstanding shares, and, to Trinity Growth Fund's best
knowledge, there is no plan or intention on the part of the remaining
Trinity Growth Fund shareholders, to redeem, sell, exchange or otherwise
dispose of a number of Large Cap Growth Fund shares received in the
transaction that would reduce Trinity Growth Fund shareholders' ownership
of Large Cap Growth Fund shares to a number of shares having a value, as of
the Closing Date, of less than 50% of the value of all of the formerly
outstanding Trinity Growth Fund shares as of the same date, and (ii) the
representation by each of Trinity Growth Fund and Large Cap Growth Fund
that, as of the Closing Date, Trinity Growth Fund and Large Cap Growth Fund
will qualify as regulated investment companies or will meet the
diversification test of Section 368(a)(2)(F)(ii) of the Code, will be as
follows:
1. The transactions contemplated by the Agreement will qualify as a
tax-free "reorganization" within the meaning of Section 368(a)(1) of the Code,
and under the regulations promulgated thereunder.
2. Trinity Growth Fund and Large Cap Growth Fund will each qualify as a
"party to a reorganization" within the meaning of Section 368(b)(2) of the Code.
3. No gain or loss will be recognized by the shareholders of Trinity Growth
Fund upon the distribution of Class A, Class B, Class C, Class N and Class Y
shares of beneficial interest in Large Cap Growth Fund to the shareholders of
Trinity Growth Fund pursuant to Section 354 of the Code.
4. Under Section 361(a) of the Code no gain or loss will be recognized by
Trinity Growth Fund by reason of the transfer of substantially all its assets in
exchange for Class A, Class B, Class C, Class N and Class Y shares of Large Cap
Growth Fund.
5. Under Section 1032 of the Code no gain or loss will be recognized by
Large Cap Growth Fund by reason of the transfer of substantially all of Trinity
Growth Fund's assets in exchange for Class A, Class B, Class C, Class N and
Class Y shares of Large Cap Growth Fund and Large Cap Growth Fund's assumption
of certain liabilities of Trinity Growth Fund.
6. The shareholders of Trinity Growth Fund will have the same tax basis and
holding period for the Class A, Class B, Class C, Class N and Class Y shares of
beneficial interest in Large Cap Growth Fund that they receive as they had for
Trinity Growth Fund shares that they previously held, pursuant to Section 358(a)
and 1223(1), respectively, of the Code.
7. The securities transferred by Trinity Growth Fund to Large Cap Growth
Fund will have the same tax basis and holding period in the hands of Large Cap
Growth Fund as they had for Trinity Growth Fund, pursuant to Section 362(b) and
1223(1), respectively, of the Code.
F. The cash reserve shall not exceed 10% of the value of the net assets,
nor 30% in value of the gross assets, of Trinity Growth Fund at the close of
business on the Valuation Date.
G. A Registration Statement on Form N-14 filed by Large Cap Growth Fund
under the 1933 Act, containing a preliminary form of the Proxy Statement and
Prospectus, shall have become effective under the 1933 Act.
H. On the Closing Date, Trinity Growth Fund shall have received a letter of
Xxxxxx X. Xxxxxxx or other senior executive officer of OppenheimerFunds, Inc.
acceptable to Trinity Growth Fund, stating that nothing has come to his or her
attention which in his or her judgment would indicate that as of the Closing
Date there were any material, actual or contingent liabilities of Large Cap
Growth Fund arising out of litigation brought against Large Cap Growth Fund or
claims asserted against it, or pending or, to the best of his or her knowledge,
threatened claims or litigation not reflected in or apparent by the most recent
audited financial statements and footnotes thereto of Large Cap Growth Fund
delivered to Trinity Growth Fund. Such letter may also include such additional
statements relating to the scope of the review conducted by such person and his
or her responsibilities and liabilities as are not unreasonable under the
circumstances.
I. Trinity Growth Fund shall acknowledge receipt of the Class A, Class B,
Class C, Class N and Class Y shares of Large Cap Growth Fund.
12. Trinity Growth Fund hereby represents and warrants that:
A. The financial statements of Trinity Growth Fund as of [_________, 2000]
(audited) and [_______, 2001] (unauditied) heretofore furnished to Large
Cap Growth Fund, present fairly the financial position, results of
operations, and changes in net assets of Trinity Growth Fund as of that
date, in conformity with generally accepted accounting principles applied
on a basis consistent with the preceding year; and that from [_________,
200_] through the date hereof there have not been, and through the Closing
Date there will not be, any material adverse change in the business or
financial condition of Trinity Growth Fund, it being agreed that a decrease
in the size of Trinity Growth Fund due to a diminution in the value of its
portfolio and/or redemption of its shares shall not be considered a
material adverse change;
B. Contingent upon approval of the Agreement and the transactions contemplated
thereby by Trinity Growth Fund's shareholders, Trinity Growth Fund has
authority to transfer all of the assets of Trinity Growth Fund to be
conveyed hereunder free and clear of all liens, encumbrances, security
interests, restrictions and limitations whatsoever;
C. The Prospectus, as amended and supplemented, contained in Trinity Growth
Fund's Registration Statement under the 1933 Act, as amended, is true,
correct and complete, conforms to the requirements of the 1933 Act and does
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. The Registration Statement, as amended,
was, as of the date of the filing of the last Post-Effective Amendment,
true, correct and complete, conformed to the requirements of the 1933 Act
and 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;
D. There is no material contingent liability of Trinity Growth Fund and no
material claim and no material legal, administrative or other proceedings
pending or, to the knowledge of Trinity Growth Fund, threatened against
Trinity Growth Fund, not reflected in such Prospectus;
E. Except for the Agreement, there are no material contracts outstanding to
which Trinity Growth Fund is a party other than those ordinary in the
conduct of its business;
F. Trinity Growth Fund is a Massachusetts business trust duly organized,
validly existing and in good standing under the laws of the State of
Massachusetts; and has all necessary and material Federal and state
authorizations to own all of its assets and to carry on its business as now
being conducted; and Trinity Growth Fund that is duly registered under the
Act and such registration has not been rescinded or revoked and is in full
force and effect;
G. All Federal and other tax returns and reports of Trinity Growth Fund
required by law to be filed have been filed, and all federal and other
taxes shown due on said returns and reports have been paid or provision
shall have been made for the payment thereof and to the best of the
knowledge of Trinity Growth Fund no such return is currently under audit
and no assessment has been asserted with respect to such returns and to the
extent such tax returns with respect to the taxable year of Trinity Growth
Fund ended July 31, 200_ have not been filed, such returns will be filed
when required and the amount of tax shown as due thereon shall be paid when
due; and
H. Trinity Growth Fund has elected that Trinity Growth Fund be treated as a
regulated investment company and, for each fiscal year of its operations,
Trinity Growth Fund has met the requirements of Subchapter M of the Code
for qualification and treatment as a regulated investment company and
Trinity Growth Fund intends to meet such requirements with respect to its
current taxable year.
13. Large Cap Growth Fund hereby represents and warrants that:
A. The financial statements of Large Cap Growth Fund as of _____, 200_
(audited) heretofore furnished to Trinity Growth Fund, present fairly the
financial position, results of operations, and changes in net assets of
Large Cap Growth Fund, as of that date, in conformity with generally
accepted accounting principles applied on a basis consistent with the
preceding year; and that from _____, 200_ through the date hereof there
have not been, and through the Closing Date there will not be, any material
adverse changes in the business or financial condition of Large Cap Growth
Fund, it being understood that a decrease in the size of Large Cap Growth
Fund due to a diminution in the value of its portfolio and/or redemption of
its shares shall not be considered a material or adverse change;
B. The Prospectus, as amended and supplemented, contained in Large Cap Growth
Fund's Registration Statement under the 1933 Act, is true, correct and
complete, conforms to the requirements of the 1933 Act and does 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. The Registration Statement, as amended, was, as of the date
of the filing of the last Post-Effective Amendment, true, correct and
complete, conformed to the requirements of the 1933 Act and 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;
C. Except for this Agreement, there is no material contingent liability of
Large Cap Growth Fund and no material claim and no material legal,
administrative or other proceedings pending or, to the knowledge of Large
Cap Growth Fund, threatened against Large Cap Growth Fund, not reflected in
such Prospectus;
D. There are no material contracts outstanding to which Large Cap Growth Fund
is a party other than those ordinary in the conduct of its business;
E. Large Cap Growth Fund is a business trust duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts;
Large Cap Growth Fund has all necessary and material Federal and state
authorizations to own all its properties and assets and to carry on its
business as now being conducted; the Class A, Class B, Class C, Class N and
Class Y shares of Large Cap Growth Fund which it issues to Trinity Growth
Fund pursuant to the Agreement will be duly authorized, validly issued,
fully-paid and non-assessable,except as set forth under"Shareholder &
Trustee Liability" in Large Cap Growth Fund's Statement of Additional
Information, will conform to the description thereof contained in Large Cap
Growth Fund's Registration Statement and will be duly registered under the
1933 Act and in the states where registration is required; and Large Cap
Growth Fund is duly registered under the Act and such registration has not
been revoked or rescinded and is in full force and effect;
F. All federal and other tax returns and reports of Large Cap Growth Fund
required by law to be filed have been filed, and all federal and other
taxes shown due on said returns and reports have been paid or provision
shall have been made for the payment thereof and to the best of the
knowledge of Large Cap Growth Fund no such return is currently under audit
and no assessment has been asserted with respect to such returns and to the
extent such tax returns with respect to the taxable year of Large Cap
Growth Fund ended July 31, 200_ have not been filed, such returns will be
filed when required and the amount of tax shown as due thereon shall be
paid when due;
G. Large Cap Growth Fund has elected to be treated as a regulated investment
company and, for each fiscal year of its operations, Large Cap Growth Fund
has met the requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company and Large Cap Growth Fund
intends to meet such requirements with respect to its current taxable year;
H. Large Cap Growth Fund has no plan or intention (i) to dispose of any of the
assets transferred by Trinity Growth Fund, other than in the ordinary
course of business, or (ii) to redeem or reacquire any of the Class A,
Class B, Class C, Class N and Class Y shares issued by it in the
reorganization other than pursuant to valid requests of shareholders; and
I. After consummation of the transactions contemplated by the Agreement, Large
Cap Growth Fund intends to operate its business in a substantially
unchanged manner.
14. Each party hereby represents to the other that no broker or finder has
been employed by it with respect to the Agreement or the transactions
contemplated hereby. Each party also represents and warrants to the other that
the information concerning it in the Proxy Statement and Prospectus will not as
of its date contain any untrue statement of a material fact or omit to state a
fact necessary to make the statements concerning it therein not misleading and
that the financial statements concerning it will present the information shown
fairly in accordance with generally accepted accounting principles applied on a
basis consistent with the preceding year. Each party also represents and
warrants to the other that the Agreement is valid, binding and enforceable in
accordance with its terms and that the execution, delivery and performance of
the Agreement will not result in any violation of, or be in conflict with, any
provision of any charter, by-laws, contract, agreement, judgment, decree or
order to which it is subject or to which it is a party. Large Cap Growth Fund
hereby represents to and covenants with Trinity Growth Fund that, if the
reorganization becomes effective, Large Cap Growth Fund will treat each
shareholder of Trinity Growth Fund who received any of Large Cap Growth Fund's
shares as a result of the reorganization as having made the minimum initial
purchase of shares of Large Cap Growth Fund received by such shareholder for the
purpose of making additional investments in shares of Large Cap Growth Fund,
regardless of the value of the shares of Large Cap Growth Fund received.
15. Large Cap Growth Fund agrees that it will prepare and file a
Registration Statement on Form N-14 under the 1933 Act which shall contain a
preliminary form of proxy statement and prospectus contemplated by Rule 145
under the 1933 Act. The final form of such proxy statement and prospectus is
referred to in the Agreement as the "Proxy Statement and Prospectus." Each party
agrees that it will use its best efforts to have such Registration Statement
declared effective and to supply such information concerning itself for
inclusion in the Proxy Statement and Prospectus as may be necessary or desirable
in this connection. Trinity Growth Fund covenants and agrees to liquidate and
dissolve as soon as practicable to the extent required under the laws of the
State of Massachusetts, and, upon Closing, to cause the cancellation of its
outstanding shares.
16. The obligations of the parties shall be subject to the right of either
party to abandon and terminate the Agreement for any reason and there shall be
no liability for damages or other recourse available to a party not so
terminating this Agreement, provided, however, that in the event that a party
shall terminate this Agreement without reasonable cause, the party so
terminating shall, upon demand, reimburse the party not so terminating for all
expenses, including reasonable out-of-pocket expenses and fees incurred in
connection with this Agreement.
17. The Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all taken together shall constitute one
Agreement. The rights and obligations of each party pursuant to the Agreement
shall not be assignable.
18. All prior or contemporaneous agreements and representations are merged
into the Agreement, which constitutes the entire contract between the parties
hereto. No amendment or modification hereof shall be of any force and effect
unless in writing and signed by the parties and no party shall be deemed to have
waived any provision herein for its benefit unless it executes a written
acknowledgment of such waiver.
19. Large Cap Growth Fund understands that the obligations of Trinity
Growth Fund under the Agreement are not binding upon any Trustee or shareholder
of Trinity Growth Fund personally, but bind only Trinity Growth Fund and Trinity
Growth Fund's property.
20. Trinity Growth Fund understands that the obligations of Large Cap
Growth Fund under the Agreement are not binding upon any trustee or shareholder
of Large Cap Growth Fund personally, but bind only Large Cap Growth Fund and
Large Cap Growth Fund's property. Trinity Growth Fund represents that it has
notice of the provisions of the Declaration of Trust of Large Cap Growth Fund
disclaiming shareholder and trustee liability for acts or obligations of Large
Cap Growth Fund.
IN WITNESS WHEREOF, each of the parties has caused the Agreement to be
executed and attested by its officers thereunto duly authorized on the date
first set forth above.
XXXXXXXXXXX TRINITY GROWTH FUND
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Secretary
XXXXXXXXXXX LARGE CAP GROWTH FUND
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Secretary
775_Agmt&PlanofReorg2001
