Exhibit 4.a
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated as of October 26, 2000
by and among Liberty-Xxxxx Xxx Funds Investment Trust (the "Trust"), a
Massachusetts business trust established under a Declaration of Trust dated
January 8, 1987, as amended, on behalf of Xxxxx Xxx Disciplined Stock Fund (the
"Acquired Fund"), a series of the Trust, Liberty Funds Trust III (the "Acquiring
Trust"), a Massachusetts business trust established under a Declaration of Trust
dated May 30, 1986, as amended, on behalf of Liberty Select Value Fund (the
"Acquiring Fund"), a series of the Acquiring Trust, and Liberty Financial
Companies, Inc.
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 368(a) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), and any
successor provision. The reorganization will consist of the transfer of all of
the assets of the Acquired Fund in exchange solely for Class S shares of
beneficial interest of the Acquiring Fund ("Acquiring Shares") and the
assumption by Acquiring Fund of the liabilities of the Acquired Fund (other than
certain expenses of the reorganization contemplated hereby) and the distribution
of such Acquiring Shares to the shareholders of the Acquired Fund in liquidation
of the Acquired Fund, all upon the terms and conditions set forth in this
Agreement.
In consideration of the premises and of the covenants and agreements
hereinafter set forth, the parties hereto covenant and agree as follows:
1. TRANSFER OF ASSETS OF ACQUIRED FUND IN EXCHANGE FOR ASSUMPTION
OF LIABILITIES AND ACQUIRING SHARES AND LIQUIDATION OF
ACQUIRED FUND.
1.1 Subject to the terms and conditions herein set forth and on
the basis of the representations and warranties contained
herein,
(a) The Trust, on behalf of the Acquired Fund, will
transfer and deliver to the Acquiring Fund, and the
Acquiring Fund will acquire, all the assets of the
Acquired Fund as set forth in paragraph 1.2.
(b) The Acquiring Fund will assume all of the Acquired
Fund's liabilities and obligations of any kind
whatsoever, whether absolute, accrued, contingent or
otherwise in existence on the Closing Date (as
defined in paragraph 1.2 hereof) (the "Obligations"),
except that expenses of reorganization contemplated
hereby to be paid by the Acquired Fund pursuant to
paragraphs 1.5 and 9.2 shall not be assumed or paid
by the Acquiring Fund, and
(c) The Acquiring Fund will issue and deliver to the
Acquired Fund in exchange for such assets the number
of Acquiring Shares (including fractional shares, if
any) determined by dividing the net asset value of
the Acquired Fund, computed in the manner and as of
the time and date set forth in paragraph 2.1, by the
net asset value of one Acquiring Share, computed in
the manner and as of the time and date set forth in
paragraph
2.2. Such transactions shall take place at the
closing provided for in paragraph 3.1 (the
"Closing").
1.2 The assets of the Acquired Fund to be acquired by the
Acquiring Fund shall consist of all cash, securities,
dividends and interest receivable, receivables for shares sold
and all other assets which are owned by the Acquired Fund on
the closing date provided in paragraph 3.1 (the "Closing
Date") and any deferred expenses, other than unamortized
organizational expenses, shown as an asset on the books of the
Acquired Fund on the Closing Date.
1.3 As provided in paragraph 3.4, as soon after the Closing Date
as is conveniently practicable (the "Liquidation Date"), the
Acquired Fund will liquidate and distribute pro rata to its
shareholders of record ("Acquired Fund Shareholders"),
determined as of the close of business on the Valuation Date
(as defined in paragraph 2.1), the Acquiring Shares received
by the Acquired Fund pursuant to paragraph 1.1. Such
liquidation and distribution will be accomplished by the
transfer of the Acquiring Shares then credited to the account
of the Acquired Fund on the books of the Acquiring Fund to
open accounts on the share records of Acquiring Fund in the
names of the Acquired Fund Shareholders and representing the
respective pro rata number of Acquiring Shares due such
shareholders. The Acquiring Fund shall not be obligated to
issue certificates representing Acquiring Shares in connection
with such exchange.
1.4 With respect to Acquiring Shares distributable pursuant to
paragraph 1.3 to an Acquired Fund Shareholder holding a
certificate or certificates for shares of the Acquired Fund,
if any, on the Valuation Date, the Acquiring Trust will not
permit such shareholder to receive Acquiring Share
certificates therefor, exchange such Acquiring Shares for
shares of other investment companies, effect an account
transfer of such Acquiring Shares, or pledge or redeem such
Acquiring Shares until the Acquiring Trust has been notified
by the Acquired Fund or its agent that such Shareholder has
surrendered all his or her outstanding certificates for
Acquired Fund shares or, in the event of lost certificates,
posted adequate bond.
1.5 [RESERVED]
1.6 As promptly as possible after the Closing Date, the Acquired
Fund shall be terminated pursuant to the provisions of the
laws of the Commonwealth of Massachusetts, and, after the
Closing Date, the Acquired Fund shall not conduct any business
except in connection with its liquidation.
2. VALUATION.
2.1 For the purpose of paragraph 1, the value of the Acquired
Fund's assets to be acquired by the Acquiring Fund hereunder
shall be the net asset value computed as of the close of
regular trading on the New York Stock Exchange on the business
day next preceding the Closing (such time and date being
herein called the "Valuation Date") using the valuation
procedures set forth in the Declaration of Trust of the
Acquiring Trust and the then current prospectus or statement
of additional information of the Acquiring Fund, after
deduction for the expenses of the reorganization contemplated
hereby to be paid by
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the Acquired Fund pursuant to paragraphs 1.5, and shall be
certified by the Acquired Fund.
2.2 For the purpose of paragraph 2.1, the net asset value of an
Acquiring Share shall be the net asset value per share
computed as of the close of regular trading on the New York
Stock Exchange on the Valuation Date, using the valuation
procedures set forth in the Declaration of Trust of the
Acquiring Trust and the then current prospectus or
prospectuses and the statement of additional information or
statements of additional information of the Acquiring Fund
(collectively, as from time to time amended and supplemented,
the "Acquiring Fund Prospectus").
3. CLOSING AND CLOSING DATE.
3.1 The Closing Date shall be on January 16, 2001, or on such
other date as the parties may agree in writing. The Closing
shall be held at 9:00 a.m. at the offices of Colonial
Management Associates, Inc., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at such other time and/or place as the
parties may agree.
3.2 The portfolio securities of the Acquired Fund shall be made
available by the Acquired Fund to The Chase Manhattan Bank, as
custodian for the Acquiring Fund (the "Custodian"), for
examination no later than five business days preceding the
Valuation Date. On the Closing Date, such portfolio securities
and all the Acquired Fund's cash shall be delivered by the
Acquired Fund to the Custodian for the account of the
Acquiring Fund, such portfolio securities to be duly endorsed
in proper form for transfer in such manner and condition as to
constitute good delivery thereof in accordance with the custom
of brokers or, in the case of portfolio securities held in the
U.S. Treasury Department's book-entry system or by the
Depository Trust Company, Participants Trust Company or other
third party depositories, by transfer to the account of the
Custodian in accordance with Rule 17f-4 or Rule 17f-5, as the
case may be, under the Investment Company Act of 1940 (the
"1940 Act") and accompanied by all necessary federal and state
stock transfer stamps or a check for the appropriate purchase
price thereof. The cash delivered shall be in the form of
currency or certified or official bank checks, payable to the
order of "The Chase Manhattan Bank, custodian for Acquiring
Fund."
3.3 In the event that on the Valuation Date (a) the New York Stock
Exchange shall be closed to trading or trading thereon shall
be restricted, or (b) trading or the reporting of trading on
said Exchange or elsewhere shall be disrupted so that accurate
appraisal of the value of the net assets of the Acquired Fund
or the Acquiring Fund is impracticable, the Closing Date shall
be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have
been restored; provided that if trading shall not be fully
resumed and reporting restored within three business days of
the Valuation Date, this Agreement may be terminated by either
of the Trust or the Acquiring Trust upon the giving of written
notice to the other party.
3.4 At the Closing, the Acquired Fund or its transfer agent shall
deliver to the Acquiring Fund or its designated agent a list
of the names and addresses of the Acquired Fund Shareholders
and the number of outstanding shares of beneficial interest of
the Acquired Fund owned by each Acquired Fund Shareholder, all
as of the close of business on the Valuation Date, certified
by the Secretary or Assistant Secretary of the Trust. The
Acquiring Trust will provide to the Acquired Fund evidence
satisfactory to the Acquired
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Fund that the Acquiring Shares issuable pursuant to paragraph
1.1 have been credited to the Acquired Fund's account on the
books of the Acquiring Fund. On the Liquidation Date, the
Acquiring Trust will provide to the Acquired Fund evidence
satisfactory to the Acquired Fund that such Acquiring Shares
have been credited pro rata to open accounts in the names of
the Acquired Fund shareholders as provided in paragraph 1.3.
3.5 At the Closing each party shall deliver to the other such
bills of sale, instruments of assumption of liabilities,
checks, assignments, stock certificates, receipts or other
documents as such other party or its counsel may reasonably
request in connection with the transfer of assets, assumption
of liabilities and liquidation contemplated by paragraph 1.
4. REPRESENTATIONS AND WARRANTIES.
4.1 The Trust, on behalf of the Acquired Fund, represents and
warrants the following to the Acquiring Trust and to the
Acquiring Fund as of the date hereof and agrees to confirm the
continuing accuracy and completeness in all material respects
of the following on the Closing Date:
(a) The Trust is a business trust duly organized, validly
existing and in good standing under the laws of the
Commonwealth of Massachusetts;
(b) The Trust is a duly registered investment company
classified as a management company of the open-end
type and its registration with the Securities and
Exchange Commission as an investment company under
the 1940 Act is in full force and effect, and the
Acquired Fund is a separate series thereof duly
designated in accordance with the applicable
provisions of the Declaration of Trust of the Trust
and the 1940 Act;
(c) The Trust is not in violation in any material respect
of any provision of its Declaration of Trust or
By-laws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the
Trust is a party or by which the Acquired Fund is
bound, and the execution, delivery and performance of
this Agreement will not result in any such violation;
(d) The Trust has no material contracts or other
commitments (other than this Agreement and such other
contracts as may be entered into in the ordinary
course of its business) which if terminated may
result in material liability to the Acquired Fund or
under which (whether or not terminated) any material
payments for periods subsequent to the Closing Date
will be due from the Acquired Fund;
(e) No litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or threatened against the
Acquired Fund, any of its properties or assets, or
any person whom the Acquired Fund may be obligated to
indemnify in connection with such litigation,
proceeding or investigation. The Acquired Fund knows
of no facts which might form the basis for the
institution of such proceedings, and is not a party
to or subject to the provisions of any order, decree
or judgment of any court or governmental body which
materially and adversely affects its business or its
ability to consummate the transactions contemplated
hereby;
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(f) The statement of assets and liabilities, the
statement of operations, the statement of changes in
net assets, and the schedule of investments as at and
for the two years ended September 30, 1999 of the
Acquired Fund, audited by PricewaterhouseCoopers LLP,
and the statement of assets, the statement of changes
in net assets and the schedule of investments for the
six months ended March 31, 2000, copies of which have
been furnished to the Acquiring Fund, fairly reflect
the financial condition and results of operations of
the Acquired Fund as of such dates and for the
periods then ended in accordance with generally
accepted accounting principles consistently applied,
and the Acquired Fund has no known liabilities of a
material amount, contingent or otherwise, other than
those shown on the statements of assets referred to
above or those incurred in the ordinary course of its
business since March 31, 2000;
(g) Since March 31, 2000, there has not been any material
adverse change in the Acquired Fund's financial
condition, assets, liabilities or business (other
than changes occurring in the ordinary course of
business), or any incurrence by the Acquired Fund of
indebtedness, except as disclosed in writing to the
Acquiring Fund. For the purposes of this subparagraph
(g), distributions of net investment income and net
realized capital gains, changes in portfolio
securities, changes in the market value of portfolio
securities or net redemptions shall be deemed to be
in the ordinary course of business;
(h) By the Closing Date, all federal and other tax
returns and reports of the Acquired Fund required by
law to have been filed by such date (giving effect to
extensions) shall have been filed, and all federal
and other taxes shown to be due on said returns and
reports shall have been paid so far as due, or
provision shall have been made for the payment
thereof, and to the best of the Acquired Fund's
knowledge no such return is currently under audit and
no assessment has been asserted with respect to such
returns;
(i) For all taxable years and all applicable quarters of
such years from the date of its inception, the
Acquired Fund has met the requirements of subchapter
M of the Code, for treatment as a "regulated
investment company" within the meaning of Section 851
of the Code. Neither the Trust nor the Acquired Fund
has at any time since its inception been liable for
nor is now liable for any material excise tax
pursuant to Section 852 or 4982 of the Code. The
Acquired Fund has duly filed all federal, state,
local and foreign tax returns which are required to
have been filed, and all taxes of the Acquired Fund
which are due and payable have been paid except for
amounts that alone or in the aggregate would not
reasonably be expected to have a material adverse
effect. The Acquired Fund is in compliance in all
material respects with applicable regulations of the
Internal Revenue Service pertaining to the reporting
of dividends and other distributions on and
redemptions of its capital stock and to withholding
in respect of dividends and other distributions to
shareholders, and is not liable for any material
penalties which could be imposed thereunder;
(j) The authorized capital of the Trust consists of an
unlimited number of shares of beneficial interest
with no par value, of multiple series and classes.
All issued and outstanding shares of the Acquired
Fund are, and at the Closing Date will be, duly
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and validly issued and outstanding, fully paid and
(except as set forth in the Acquired Fund's then
current prospectus or prospectuses and statement of
additional information or statements of additional
information (collectively, as amended or supplemented
from time to time, the "Acquired Fund Prospectus")),
non-assessable by the Acquired Fund and will have
been issued in compliance with all applicable
registration or qualification requirements of federal
and state securities laws. No options, warrants or
other rights to subscribe for or purchase, or
securities convertible into, any shares of beneficial
interest of the Acquired Fund are outstanding and
none will be outstanding on the Closing Date.
(k) The Acquired Fund's investment operations from
inception to the date hereof have been in compliance
in all material respects with the investment policies
and investment restrictions set forth in its
prospectus and statement of additional information as
in effect from time to time, except as previously
disclosed in writing to the Acquiring Fund;
(l) The execution, delivery and performance of this
Agreement has been duly authorized by the Trustees of
the Trust, and, upon approval thereof by the required
majority of the shareholders of the Acquired Fund,
this Agreement will constitute the valid and binding
obligation of the Acquired Fund enforceable in
accordance with its terms except as the same may be
limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of
creditors' rights generally and other equitable
principles;
(m) The Acquiring Shares to be issued to the Acquired
Fund pursuant to paragraph 1 will not be acquired for
the purpose of making any distribution thereof other
than to the Acquired Fund Shareholders as provided in
paragraph 1.3; and
(n) The information provided by the Acquired Fund for use
in the Registration Statement and Proxy Statement
referred to in paragraph 5.3 shall be accurate and
complete in all material respects and shall comply
with federal securities and other laws and
regulations applicable thereto.
(o) No consent, approval, authorization or order of any
court or governmental authority is required for the
consummation by the Acquired Fund of the transactions
contemplated by this Agreement, except such as may be
required under the Securities Act of 1933, as amended
(the "1933 Act"), the Securities Exchange Act of
1934, as amended (the "1934 Act"), the 1940 Act and
state insurance, securities or blue sky laws (which
term as used herein shall include the laws of the
District of Columbia and of Puerto Rico).
(p) At the Closing Date, the Trust, on behalf of the
Acquired Fund will have good and marketable title to
its assets to be transferred to the Acquiring Fund
pursuant to paragraph 1.1 and will have full right,
power and authority to sell, assign, transfer and
deliver the Investments (as defined below) and any
other assets and liabilities of the Acquired Fund to
be transferred to the Acquiring Fund pursuant to this
Agreement. At the Closing Date, subject only to the
delivery of the Investments and any such other assets
and liabilities and payment therefor as contemplated
by this Agreement, the Acquiring Fund will acquire
good and marketable title thereto and will acquire
the Investments and any such other assets and
liabilities subject to
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no encumbrances, liens or security interests
whatsoever and without any restrictions upon the
transfer thereof, except as previously disclosed to
the Acquiring Fund. As used in this Agreement, the
term "Investments" shall mean the Acquired Fund's
investments shown on the schedule of its investments
as of March 31, 2000 referred to in Section 4.1(f)
hereof, as supplemented with such changes in the
portfolio as the Acquired Fund shall make, and
changes resulting from stock dividends, stock
split-ups, mergers and similar corporate actions
through the Closing Date.
(q) At the Closing Date, the Acquired Fund will have sold
such of its assets, if any, as are necessary to
assure that, after giving effect to the acquisition
of the assets of the Acquired Fund pursuant to this
Agreement, the Acquiring Fund will remain a
"diversified company" within the meaning of Section
5(b)(1) of the 1940 Act and in compliance with such
other mandatory investment restrictions as are set
forth in the Acquiring Fund Prospectus, as amended
through the Closing Date.
(r) No registration of any of the Investments would be
required if they were, as of the time of such
transfer, the subject of a public distribution by
either of the Acquiring Fund or the Acquired Fund,
except as previously disclosed by the Acquired Fund
to the Acquiring Fund.
4.2 The Acquiring Trust, on behalf of the Acquiring Fund,
represents and warrants the following to the Trust and to the
Acquired Fund as of the date hereof and agrees to confirm the
continuing accuracy and completeness in all material respects
of the following on the Closing Date:
(a) The Acquiring Trust is a business trust duly
organized, validly existing and in good standing
under the laws of The Commonwealth of Massachusetts;
(b) The Acquiring Trust is a duly registered investment
company classified as a management company of the
open-end type and its registration with the
Securities and Exchange Commission as an investment
company under the 1940 Act is in full force and
effect, and the Acquiring Fund is a separate series
thereof duly designated in accordance with the
applicable provisions of the Declaration of Trust of
the Acquiring Trust and the 1940 Act;
(c) The Acquiring Fund Prospectus conforms in all
material respects to the applicable requirements of
the 1933 Act and the rules and regulations of the
Securities and Exchange Commission thereunder and
does not include any untrue statement of a material
fact or omit to state any material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading, and there are no
material contracts to which the Acquiring Fund is a
party that are not referred to in such Prospectus or
in the registration statement of which it is a part;
(d) At the Closing Date, the Acquiring Fund will have
good and marketable title to its assets;
(e) The Acquiring Trust is not in violation in any
material respect of any provisions of its Declaration
of Trust or By-laws or of any agreement, indenture,
instrument,
7
contract, lease or other undertaking to which the
Acquiring Trust is a party or by which the Acquiring
Fund is bound, and the execution, delivery and
performance of this Agreement will not result in any
such violation;
(f) No litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or threatened against the
Acquiring Fund or any of its properties or assets.
The Acquiring Fund knows of no facts which might form
the basis for the institution of such proceedings,
and is not a party to or subject to the provisions of
any order, decree or judgment of any court or
governmental body which materially and adversely
affects its business or its ability to consummate the
transactions contemplated hereby;
(g) The statement of assets, the statement of operations,
the statement of changes in assets and the schedule
of investments as at and for the two years ended
October 31, 1999 of the Acquiring Fund, audited by
PricewaterhouseCoopers LLP, and the statement of
assets, the statement of changes in net assets and
the schedule of investments for the six months ended
April 30, 2000, copies of which have been furnished
to the Acquired Fund, fairly reflect the financial
condition and results of operations of the Acquiring
Fund as of such dates and the results of its
operations for the periods then ended in accordance
with generally accepted accounting principles
consistently applied, and the Acquiring Fund has no
known liabilities of a material amount, contingent or
otherwise, other than those shown on the statements
of assets referred to above or those incurred in the
ordinary course of its business since April 30, 2000;
(h) Since April 30, 2000, there has not been any material
adverse change in the Acquiring Fund's financial
condition, assets, liabilities or business (other
than changes occurring in the ordinary course of
business), or any incurrence by the Acquiring Fund of
indebtedness. For the purposes of this subparagraph
(h), changes in portfolio securities, changes in the
market value of portfolio securities or net
redemptions shall be deemed to be in the ordinary
course of business;
(i) By the Closing Date, all federal and other tax
returns and reports of the Acquiring Fund required by
law to have been filed by such date (giving effect to
extensions) shall have been filed, and all federal
and other taxes shown to be due on said returns and
reports shall have been paid so far as due, or
provision shall have been made for the payment
thereof, and to the best of the Acquiring Fund's
knowledge no such return is currently under audit and
no assessment has been asserted with respect to such
returns;
(j) For each fiscal year of its operation, the Acquiring
Fund has met the requirements of Subchapter M of the
Code for qualification as a regulated investment
company;
(k) The authorized capital of the Acquiring Trust
consists of an unlimited number of shares of
beneficial interest, no par value, of such number of
different series as the Board of Trustees may
authorize from time to time. The outstanding shares
of beneficial interest in the Acquiring Fund are, and
at the Closing Date will be, divided into Class A
shares, Class B shares, Class C shares, Class Z
shares and Class S shares each having the
characteristics described in the Acquiring Fund
Prospectus. All issued and outstanding shares of the
Acquiring Fund are, and at
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the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable (except as
set forth in the Acquiring Fund Prospectus) by the
Acquiring Trust, and will have been issued in
compliance with all applicable registration or
qualification requirements of federal and state
securities laws. Except for Class B shares which
convert to Class A shares after the expiration of a
period of time, no options, warrants or other rights
to subscribe for or purchase, or securities
convertible into, any shares of beneficial interest
in the Acquiring Fund of any class are outstanding
and none will be outstanding on the Closing Date;
(l) The Acquiring Fund's investment operations from
inception to the date hereof have been in compliance
in all material respects with the investment policies
and investment restrictions set forth in its
prospectus and statement of additional information as
in effect from time to time;
(m) The execution, delivery and performance of this
Agreement have been duly authorized by all necessary
action on the part of the Acquiring Trust, and this
Agreement constitutes the valid and binding
obligation of the Acquiring Trust and the Acquiring
Fund enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforcement of creditors' rights generally and other
equitable principles;
(n) The Acquiring Shares to be issued and delivered to
the Acquired Fund pursuant to the terms of this
Agreement will at the Closing Date have been duly
authorized and, when so issued and delivered, will be
duly and validly issued Class S shares of beneficial
interest in the Acquiring Fund, and will be fully
paid and non-assessable (except as set forth in the
Acquiring Fund Prospectus) by the Acquiring Trust,
and no shareholder of the Acquiring Trust will have
any preemptive right of subscription or purchase in
respect thereof; and
(o) The information to be furnished by the Acquiring Fund
for use in the Registration Statement and Proxy
Statement referred to in paragraph 5.3 shall be
accurate and complete in all material respects and
shall comply with federal securities and other laws
and regulations applicable thereto.
(p) No consent, approval, authorization or order of any
court or governmental authority is required for the
consummation by the Acquiring Fund of the
transactions contemplated by this Agreement, except
such as may be required under 1933 Act, the 1934 Act,
the 1940 Act and state insurance, securities or blue
sky laws (which term as used herein shall include the
laws of the District of Columbia and of Puerto Rico).
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5. COVENANTS OF THE ACQUIRED FUND AND THE ACQUIRING FUND.
The Acquiring Trust, on behalf of the Acquiring Fund, and the Trust, on
behalf of the Acquired Fund, each hereby covenants and agrees with the other as
follows:
5.1 The Acquiring Fund and the Acquired Fund each will operate its
business in the ordinary course between the date hereof and
the Closing Date, it being understood that such ordinary
course of business will include regular and customary periodic
dividends and distributions.
5.2 The Acquired Fund will call a meeting of its shareholders to
be held prior to the Closing Date to consider and act upon
this Agreement and take all other reasonable action necessary
to obtain the required shareholder approval of the
transactions contemplated hereby.
5.3 In connection with the Acquired Fund shareholders' meeting
referred to in paragraph 5.2, the Acquired Fund will prepare a
Proxy Statement for such meeting, to be included in a
Registration Statement on Form N-14 (the "Registration
Statement") which the Acquiring Trust will prepare and file
for the registration under the 1933 Act of the Acquiring
Shares to be distributed to the Acquired Fund shareholders
pursuant hereto, all in compliance with the applicable
requirements of the 1933 Act, the 1934 Act, and the 0000 Xxx.
5.4 The information to be furnished by the Acquired Fund for use
in the Registration Statement and the information to be
furnished by the Acquiring Fund for use in the Proxy
Statement, each as referred to in paragraph 5.3, shall be
accurate and complete in all material respects and shall
comply with federal securities and other laws and regulations
thereunder applicable thereto.
5.5 The Acquiring Fund will advise the Acquired Fund promptly if
at any time prior to the Closing Date the assets of the
Acquired Fund include any securities which the Acquiring Fund
is not permitted to acquire.
5.6 Subject to the provisions of this Agreement, the Acquired Fund
and the Acquiring Fund will each take, or cause to be taken,
all action, and do or cause to be done, all things reasonably
necessary, proper or advisable to cause the conditions to the
other party's obligations to consummate the transactions
contemplated hereby to be met or fulfilled and otherwise to
consummate and make effective such transactions.
5.7 The Acquiring Fund will use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act, the
1940 Act and such of the state securities or "Blue Sky" laws
as it may deem appropriate in order to continue its operations
after the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND.
The obligations of the Acquired Fund to consummate the
transactions provided for herein shall be subject, at its
election, to the performance by the Acquiring Trust and the
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Acquiring Fund of all the obligations to be performed by them
hereunder on or before the Closing Date and, in addition
thereto, to the following further conditions:
6.1 The Acquiring Trust, on behalf of the Acquiring Fund, shall
have delivered to the Trust a certificate executed in its name
by its President or Vice President and its Treasurer or
Assistant Treasurer, in form satisfactory to the Trust and
dated as of the Closing Date, to the effect that the
representations and warranties of the Acquiring Trust on
behalf of the Acquiring Fund made in this Agreement are true
and correct at and as of the Closing Date, except as they may
be affected by the transactions contemplated by this
Agreement, and that the Acquiring Trust and the Acquiring Fund
have complied with all the covenants and agreements and
satisfied all of the conditions on their parts to be performed
or satisfied under this Agreement at or prior to the Closing
Date.
6.2 The Trust shall have received a favorable opinion from Ropes &
Xxxx, counsel to the Acquiring Trust for the transactions
contemplated hereby, dated the Closing Date and, in a form
satisfactory to the Trust, to the following effect:
(a) The Acquiring Trust is a business trust duly
organized and validly existing under the laws of The
Commonwealth of Massachusetts and has power to own
all of its properties and assets and to carry on its
business as presently conducted, and the Acquiring
Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940
Act and the Declaration of Trust and By-laws of the
Acquiring Trust; (b) this Agreement has been duly
authorized, executed and delivered on behalf of the
Acquiring Fund and, assuming the Prospectus and
Registration Statement referred to in paragraph 5.3
complies with applicable federal securities laws and
assuming the due authorization, execution and
delivery of this Agreement by the Trust on behalf of
the Acquired Fund, is the valid and binding
obligation of the Acquiring Fund enforceable against
the Acquiring Fund in accordance with its terms,
except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights
generally and other equitable principles; (c) the
Acquiring Fund has the power to assume the
liabilities to be assumed by it hereunder and upon
consummation of the transactions contemplated hereby
the Acquiring Fund will have duly assumed such
liabilities; (d) the Acquiring Shares to be issued
for transfer to the shareholders of the Acquired Fund
as provided by this Agreement are duly authorized and
upon such transfer and delivery will be validly
issued and outstanding and fully paid and
nonassessable Class S shares of beneficial interest
in the Acquiring Fund, and no shareholder of the
Acquiring Fund has any preemptive right of
subscription or purchase in respect thereof; (e) the
execution and delivery of this Agreement did not, and
the performance by the Acquiring Trust and the
Acquiring Fund of their respective obligations
hereunder will not, violate the Acquiring Trust's
Declaration of Trust or By-laws, or any provision of
any agreement known to such counsel to which the
Acquiring Trust or the Acquiring Fund is a party or
by which either of them is bound or, to the knowledge
of such counsel, result in the acceleration of any
obligation or the imposition of any penalty under any
agreement, judgment, or decree to which the Acquiring
Trust or the Acquiring Fund is a party or by which
either of them is bound; (f) to the knowledge of such
counsel, no consent, approval, authorization or order
of any court or governmental authority is required
for the consummation by the Acquiring Trust or the
Acquiring Fund of the transactions contemplated by
this Agreement
11
except such as may be required under state securities
or "Blue Sky" laws or such as have been obtained; (g)
except as previously disclosed, pursuant to section
4.2(f) above, such counsel does not know of any legal
or governmental proceedings relating to the Acquiring
Trust or the Acquiring Fund existing on or before the
date of mailing of the Prospectus referred to in
paragraph 5.3 or the Closing Date required to be
described in the Registration Statement referred to
in paragraph 5.3 which are not described as required;
(h) the Acquiring Trust is registered with the
Securities and Exchange Commission as an investment
company under the 1940 Act; and (i) to the best
knowledge of such counsel, no litigation or
administrative proceeding or investigation of or
before any court or governmental body is presently
pending or threatened as to the Acquiring Trust or
the Acquiring Fund or any of their properties or
assets and neither the Acquiring Trust nor the
Acquiring Fund 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 its business.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND.
The obligations of the Acquiring Fund to complete the
transactions provided for herein shall be subject, at its
election, to the performance by the Acquired Fund of all the
obligations to be performed by it hereunder on or before the
Closing Date and, in addition thereto, to the following
further conditions:
7.1 The Trust, on behalf of the Acquired Fund, shall have
delivered to the Acquiring Trust a certificate executed in its
name by its President or Vice President and its Treasurer or
Assistant Treasurer, in form and substance satisfactory to the
Acquiring Trust and dated the Closing Date, to the effect that
the representations and warranties of the Acquired Fund made
in this Agreement are true and correct at and as of the
Closing Date, except as they may be affected by the
transactions contemplated by this Agreement, and that the
Trust and the Acquired Fund have complied with all the
covenants and agreements and satisfied all of the conditions
on its part to be performed or satisfied under this Agreement
at or prior to the Closing Date;
7.2 The Acquiring Trust shall have received a favorable opinion
from Xxxx, Xxxx & Xxxxx LLC, counsel to the Trust, dated the
Closing Date and in a form satisfactory to the Acquiring
Trust, to the following effect:
(a) The Trust is a business trust duly organized and
validly existing under the laws of the Commonwealth
of Massachusetts and has corporate power to own all
of its properties and assets and to carry on its
business as presently conducted, and the Acquired
Fund is a separate series thereof duly constituted in
accordance with the applicable provisions of the 1940
Act and the Declaration of Trust of the Trust; (b)
this Agreement has been duly authorized, executed and
delivered on behalf of the Acquired Fund and,
assuming the Proxy Statement referred to in paragraph
5.3 complies with applicable federal securities laws
and assuming the due authorization, execution and
delivery of this Agreement by the Acquiring Trust on
behalf of the Acquiring Fund, is the valid and
binding obligation of the Acquired Fund enforceable
against the Acquired Fund in accordance with its
terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors'
rights generally and other
12
equitable principles; (c) the Acquired Fund has the
power to sell, assign, transfer and deliver the
assets to be transferred by it hereunder, and, upon
consummation of the transactions contemplated hereby,
the Acquired Fund will have duly transferred such
assets to the Acquiring Fund; (d) the execution and
delivery of this Agreement did not, and the
performance by the Trust and the Acquired Fund of
their respective obligations hereunder will not,
violate the Trust's Declaration of Trust or By-laws,
or any provision of any agreement known to such
counsel to which the Trust or the Acquired Fund is a
party or by which either of them is bound or, to the
knowledge of such counsel, result in the acceleration
of any obligation or the imposition of any penalty
under any agreement, judgment, or decree to which the
Trust or the Acquired Fund is a party or by which
either of them is bound; (e) to the knowledge of such
counsel, no consent, approval, authorization or order
of any court or governmental authority is required
for the consummation by the Trust or the Acquired
Fund of the transactions contemplated by this
Agreement, except such as may be required under state
securities or "Blue Sky" laws or such as have been
obtained; (f) such counsel does not know of any legal
or governmental proceedings relating to the Trust or
the Acquired Fund existing on or before the date of
mailing of the Prospectus referred to in paragraph
5.3 or the Closing Date required to be described in
the Registration Statement referred to in paragraph
5.3 which are not described as required; (g) the
Trust is registered with the Securities and Exchange
Commission as an investment company under the 1940
Act; and (h) to the best knowledge of such counsel,
no litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or threatened as to the
Trust or the Acquired Fund or any of its properties
or assets and neither the Trust nor the Acquired Fund
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 its business.
7.3 The Acquired Fund shall have furnished to the Acquiring Fund
tax returns, signed by a partner of PricewaterhouseCoopers LLP
for the fiscal year ended September 30, 2000 and signed pro
forma tax returns for the period from October 1, 2000 to the
Closing Date (which pro forma tax returns shall be furnished
promptly after the Closing Date).
7.4 Prior to the Closing Date, the Acquired Fund shall have
declared a dividend or dividends which, together with all
previous dividends, shall have the effect of distributing all
of the Acquired Fund's investment company taxable income for
its taxable years ending on or after September 30, 2000 and on
or prior to the Closing Date (computed without regard to any
deduction for dividends paid), and all of its net capital
gains realized in each of its taxable years ending on or after
September 30, 2000 and on or prior to the Closing Date.
7.5 The Acquired Fund shall have furnished to the Acquiring Fund a
certificate, signed by the President (or any Vice President)
and the Treasurer of the Trust, as to the adjusted tax basis
in the hands of the Acquired Fund of the securities delivered
to the Acquiring Fund pursuant to this Agreement.
7.6 The custodian of the Acquired Fund shall have delivered to the
Acquiring Fund a certificate identifying all of the assets of
the Acquired Fund held by such custodian as of the Valuation
Date.
13
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH OF THE
ACQUIRING FUND AND THE ACQUIRED FUND.
The respective obligations of the Trust and the Acquiring Trust
hereunder are each subject to the further conditions that on or before the
Closing Date:
8.1 This Agreement and the transactions contemplated herein shall
have been approved by the vote of the required majority of the
holders of the outstanding shares of the Acquired Fund of
record on the record date for the meeting of its shareholders
referred to in paragraph 5.2;
8.2 On the Closing Date no action, suit or other preceding shall
be pending before any court or governmental agency in which it
is sought to restrain or prohibit, or obtain damages or other
relief in connection with, this Agreement or the transactions
contemplated hereby;
8.3 All consents of other parties and all other consents, orders
and permits of federal, state and local regulatory authorities
(including those of the Securities and Exchange Commission and
of state Blue Sky and securities authorities) deemed necessary
by the Trust or the Acquiring Trust to permit consummation, in
all material respects, of the transactions contemplated hereby
shall have been obtained, except where failure to obtain any
such consent, order or permit would not involve a risk of a
material adverse effect on the assets or properties of the
Acquiring Fund or the Acquired Fund.
8.4 The Registration Statement referred to in paragraph 5.3 shall
have become effective under the 1933 Act and no stop order
suspending the effectiveness thereof shall have been issued
and, to the best knowledge of the parties hereto, no
investigation or proceeding for that purpose shall have been
instituted or be pending, threatened or contemplated under the
1933 Act;
8.5 The Trust shall have received a favorable opinion of Ropes &
Xxxx satisfactory to the Trust and the Acquiring Trust shall
have received a favorable opinion of Xxxx, Xxxx & Xxxxx LLC
satisfactory to the Acquiring Trust, each substantially to the
effect that, for federal income tax purposes:
(a) The acquisition by the Acquiring Fund of the assets
of the Acquired Fund in exchange for the Acquiring
Fund's assumption of the Obligations of the Acquired
Fund and issuance of the Acquiring Shares, followed
by the distribution by the Acquired Fund of such the
Acquiring Shares to the shareholders of the Acquired
Fund in exchange for their shares of the Acquired
Fund, all as provided in paragraph 1 hereof, will
constitute a reorganization within the meaning of
Section 368(a) of the Code, and the Acquired Fund and
the Acquiring Fund will each be "a party to a
reorganization" within the meaning of Section 368(b)
of the Code;
(b) No gain or loss will be recognized to the Acquired
Fund (i) upon the transfer of its assets to the
Acquiring Fund in exchange for the Acquiring Shares
or (ii) upon the distribution of the Acquiring Shares
to the shareholders of the Acquired Fund as
contemplated in paragraph 1 hereof;
14
(c) No gain or loss will be recognized to the Acquiring
Fund upon the receipt of the assets of the Acquired
Fund in exchange for the assumption of the
Obligations and issuance of the Acquiring Shares as
contemplated in paragraph 1 hereof;
(d) The tax basis of the assets of the Acquired Fund
acquired by the Acquiring Fund will be the same as
the basis of those assets in the hands of the
Acquired Fund immediately prior to the transfer, and
the holding period of the assets of the Acquired Fund
in the hands of the Acquiring Fund will include the
period during which those assets were held by the
Acquired Fund;
(e) The shareholders of the Acquired Fund will recognize
no gain or loss upon the exchange of their shares of
the Acquired Fund for the Acquiring Shares;
(f) The tax basis of the Acquiring Shares to be received
by each shareholder of the Acquired Fund will be the
same in the aggregate as the aggregate tax basis of
the shares of the Acquired Fund surrendered in
exchange therefor;
(g) The holding period of the Acquiring Shares to be
received by each shareholder of the Acquired Fund
will include the period during which the shares of
the Acquired Fund surrendered in exchange therefor
were held by such shareholder, provided such shares
of the Acquired Fund were held as a capital asset on
the date of the exchange.
(h) Acquiring Fund will succeed to and take into account
the items of Acquired Fund described in Section
381(c) of the Code, subject to the conditions and
limitations specified in Sections 381, 382, 383 and
384 of the Code and the regulations thereunder.
8.6 At any time prior to the Closing, any of the foregoing
conditions of this Agreement may be waived jointly by the
Board of Trustees of the Trust and the Board of Trustees of
the Acquiring Trust if, in their judgment, such waiver will
not have a material adverse effect on the interests of the
shareholders of the Acquired Fund and the Acquiring Fund.
9. BROKERAGE FEES AND EXPENSES.
9.1 The Trust, on behalf of the Acquired Fund, and the Acquiring
Trust, on behalf of the Acquiring Fund, each represents and
warrants to the other that there are no brokers or finders
entitled to receive any payments in connection with the
transactions provided for herein.
9.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall
pay all fees paid to governmental authorities for the
registration or qualification of the Acquiring Shares. The
other expenses of the transactions contemplated by this
Agreement shall be borne by the following parties in the
percentages indicated: (a) the Trust, on behalf of the
Acquired Fund, __%, (b) the Acquiring Trust, on behalf of the
Acquiring Fund, __%, and (c) Liberty Financial Companies, Inc.
__%.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES.
10.1 The Trust on behalf of the Acquired Fund and the Acquiring
Trust on behalf of the Acquiring Fund agree that neither party
has made any representation, warranty or
15
covenant not set forth herein and that this Agreement
constitutes the entire agreement between the parties.
10.2 The representations, warranties and covenants contained in
this Agreement or in any document delivered pursuant hereto or
in connection herewith shall not survive the consummation of
the transactions contemplated hereunder except paragraphs 1.1,
1.3, 1.5, 1.6, 5.4, 9, 10, 13 and 14.
11. TERMINATION.
11.1 This Agreement may be terminated by the mutual agreement of
the Acquiring Trust and the Trust. In addition, either the
Acquiring Trust or the Trust may at its option terminate this
Agreement at or prior to the Closing Date because:
(a) Of a material breach by the other of any
representation, warranty, covenant or agreement
contained herein to be performed by the other party
at or prior to the Closing Date; or
(b) A condition herein expressed to be precedent to the
obligations of the terminating party has not been met
and it reasonably appears that it will not or cannot
be met.
(c) If the transactions contemplated by this Agreement
have not been substantially completed by May 31, 2001
this Agreement shall automatically terminate on that
date unless a later date is agreed to by both the
Trust and the Acquiring Trust.
11.2 If for any reason the transactions contemplated by this
Agreement are not consummated, no party shall be liable to any
other party for any damages resulting therefrom, including
without limitation consequential damages.
12. AMENDMENTS.
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of the
Trust on behalf of the Acquired Fund and the Acquiring Trust on behalf of the
Acquiring Fund; provided, however, that following the shareholders' meeting
called by the Acquired Fund pursuant to paragraph 5.2 no such amendment may have
the effect of changing the provisions for determining the number of the
Acquiring Shares to be issued to shareholders of the Acquired Fund under this
Agreement to the detriment of such shareholders without their further approval.
13. NOTICES.
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to: Liberty Funds Trust III, Xxx
Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 attention Secretary or to Liberty-Xxxxx
Xxx Funds Investment Trust, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 attention
Secretary.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT
NON-RECOURSE.
16
14.1 The article and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
14.2 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
14.3 This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of The
Commonwealth of Massachusetts, without giving effect to any
choice or conflicts of law rule or provision that would result
in the application of the domestic substantive laws of any
other jurisdiction.
14.4 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns,
but no assignment or transfer hereof or of any rights or
obligations hereunder shall be made by any party without the
written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties
hereto and their respective successors and assigns, any rights
or remedies under or by reason of this Agreement.
14.5 A copy of the Declaration of Trust of the Trust and the
Declaration of Trust of the Acquiring Trust are each on file
with the Secretary of State of the Commonwealth of
Massachusetts, and notice is hereby given that no trustee,
officer, agent or employee of either the Trust or the
Acquiring Trust shall have any personal liability under this
Agreement, and that this Agreement is binding only upon the
assets and properties of the Acquired Fund and the Acquiring
Fund.
17
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as a sealed instrument by its President or Vice
President and its corporate seal to be affixed thereto and attested by its
Secretary or Assistant Secretary.
LIBERTY-XXXXX XXX FUNDS INVESTMENT TRUST,
on behalf of Xxxxx Xxx Disciplined
Stock Fund
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ATTEST:
-------------------------------------
Name:
--------------------------------
Title:
--------------------------------
LIBERTY FUNDS TRUST III,
on behalf of Liberty Select Value Fund
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ATTEST:
-------------------------------------
Name:
--------------------------------
Title:
--------------------------------
Solely for purposes of Section 9.2
of the Agreement:
LIBERTY FINANCIAL COMPANIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ATTEST:
-------------------------------------
Name:
--------------------------------
Title:
--------------------------------
18
