Exhibit 9(d)
Agreement and Plan of Reorganization and Liquidation.
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION, dated as of
December 18, 1995 (this "Agreement") between THE HANOVER FUNDS, INC.
("Hanover"), a Maryland corporation comprised of the following separate
investment portfolios: The 100% U.S. Treasury Securities Money Market Fund, The
U.S. Treasury Money Market Fund, The Government Money Market Fund, The Cash
Management Fund, The Tax Free Money Market Fund and The New York Tax Free Money
Market Fund (each, a "Hanover Portfolio") and MUTUAL FUND TRUST ("MFT"), a
Massachusetts business trust comprised of separate investment portfolios which
include Vista Treasury Plus Money Market Fund, Vista U.S. Government Money
Market Fund, Vista Global Money Market Fund, Vista Tax Free Money Market Fund
and Vista New York Tax Free Money Market Fund and which is expected to include,
at the Effective Time of the Reorganization (as defined herein), Vista 100% U.S.
Treasury Securities Money Market Fund (each, an "MFT Portfolio").
In consideration of the mutual promises herein contained, the parties
hereto agree as follows:
SECTION 1. SHAREHOLDER APPROVAL
(a) Hanover Meeting of Shareholders. A meeting of the
shareholders of each Hanover Portfolio shall be called and held for the
purpose of acting upon this Agreement and the transactions contemplated
herein. MFT shall furnish to Hanover such data and information relating
to MFT as shall be reasonably requested by Hanover for inclusion in the
information to be furnished to such shareholders in connection with the
meeting for the purpose of acting upon this Agreement and the
transactions contemplated herein.
(b) MFT Meeting of Shareholders. A meeting of the shareholders
of MFT shall be called and held for the purpose of all of the
shareholders of MFT acting upon the matters referred to in clause (i)
of Section 7(f) of this Agreement, the shareholders of each MFT
Portfolio acting upon the matters referred to in clauses (ii) and (v)
of Section 7(f) of this Agreement, and the shareholders of the MFT
Portfolios referred to in clauses (iii) and/or (iv) of Section 7(f) of
this Agreement acting upon the matters referred to therein.
SECTION 2. REORGANIZATION
The transactions described in this section are hereinafter referred to
as the "Reorganization." For the avoidance of doubt, MFT's investment portfolios
other than the MFT Portfolios (consisting of Vista Prime Money Market Fund,
Vista California Tax Free Money Market Fund, Vista Tax Free Income Fund, Vista
New York Tax Free Income Fund, Vista California Intermediate Tax Free Fund and
Vista Federal Money Market Fund) are not parties to the Reorganization.
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(a) Plan of Reorganization and Liquidation.
(1) Hanover will cause each Hanover Portfolio to
convey, transfer and deliver to the MFT Portfolio set forth
opposite its name in the table attached hereto as Schedule I
(each such MFT Portfolio being the "Corresponding MFT
Portfolio" of the Hanover Portfolio set forth opposite its
name, and each such Hanover Portfolio being the "Corresponding
Hanover Portfolio" of the MFT Portfolio set forth opposite its
name) at the closing provided for in Section 2(b) hereof (the
"Closing") all of the then existing assets of such Hanover
Portfolio. In consideration thereof, MFT agrees at the Closing
to cause each MFT Portfolio (i) to assume and pay, to the
extent that they exist on or after the Effective Time of the
Reorganization (as defined in Section 2(b) hereof), all of the
obligations and liabilities of its Corresponding Hanover
Portfolio and (ii) to issue and deliver to the Corresponding
Hanover Portfolio full and fractional shares of that series
and class of MFT's shares of beneficial interest, representing
Vista Shares of such MFT Portfolio ("MFT Portfolio Shares"),
equal to that number of full and fractional MFT Portfolio
Shares as determined in Section 2(c) hereof. Any shares of
capital stock, par value $.001 per share, of the Hanover
Portfolios ("Hanover Portfolio Shares") held in the treasury
of Hanover on the Effective Time of the Reorganization (as
defined in Section 2(b) hereof) shall thereupon be retired.
(2) At the Effective Time of the Reorganization, each
Hanover Portfolio will liquidate and distribute pro rata to
its holders of Hanover Portfolio Shares as of the Effective
Time of the Reorganization the MFT Portfolio Shares of the
Corresponding MFT Portfolio received by such Hanover Portfolio
pursuant to this Section 2(a). Such liquidation and
distribution will be accompanied by the establishment of an
account on the respective share records of each MFT Portfolio
in the name of each record holder of Hanover Portfolio Shares
of the Corresponding Hanover Portfolio and representing the
respective pro rata number of MFT Portfolio Shares due such
shareholder. Fractional MFT Portfolio Shares will be carried
to the third decimal place. Simultaneously with such crediting
of MFT Portfolio Shares to the shareholders, the Hanover
Portfolio Shares held by such shareholders shall be cancelled.
(3) As soon as practicable after the Effective Time
of the Reorganization, Hanover shall take all the necessary
steps under Maryland law and Hanover's Articles of
Incorporation, as amended and supplemented, to effect a
complete dissolution of Hanover and to deregister Hanover
under the Investment Company Act of 1940, as amended (the
"Act").
(b) Closing and Effective Time of the Reorganization. Subject
to the satisfaction of the conditions to the Closing specified in this
Agreement, the Closing shall occur at 12:00 noon (with respect to the
Vista Tax Free Money Market Fund and the Vista New York Tax Free Money
Market Fund and their corresponding Hanover
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Portfolios) and at 2 p.m. (with respect to each of the other Vista
Portfolios and their corresponding Hanover Portfolios), New York City
time, on the day which is the later of (i) the final adjournment of the
meeting of the holders of Hanover Portfolio Shares at which this
Agreement will be considered, (ii) the declaration by the Securities
and Exchange Commission (the "Commission") of the effectiveness of the
First N-1A Amendment and the Second N-1A Amendment (each as defined in
Section 5(b) hereof), (iii) July 31, 1996, and (iv) such later day as
the parties may mutually agree (the "Effective Time of the
Reorganization").
(c) Valuation. The number of full and fractional MFG Portfolio
Shares to be issued pursuant to Section 2(a) hereof to holders of
shares of the Corresponding Hanover Portfolio shall be determined by
multiplying the number of shares of the Corresponding Hanover Portfolio
that will be exchanged for such MFG Portfolio Shares by the appropriate
exchange ratio computed as set forth below, the product of such
multiplication to be rounded to the nearest one thousandth of a full
share. For each Hanover Portfolio and its Corresponding MFT Portfolio,
the exchange ratio shall be the number determined by dividing the net
asset value per share of the Hanover Portfolio Shares by the net asset
value per share of the MFT Portfolio Shares of the Corresponding MFT
Portfolio, in each case such values to be determined on a consistent
basis by the valuation procedures that have been adopted by the Board
of Trustees of MFT, as of the Effective Time of the Reorganization;
provided, that in the case of Vista 100% U.S. Treasury Securities Money
Market Fund and The 100% U.S. Treasury Securities Money Market Fund of
Hanover, the exchange ratio shall be one. Each such exchange ratio
shall be rounded to the nearest ten thousandth.
All computations of value shall be made in accordance with the regular
practice of the MFT Portfolios as of the Effective Time by the agent then
responsible for pricing shares of the MFT Portfolios.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF MFT
MFT represents and warrants to Hanover as follows:
(a) Organization, Existence, etc. MFT is a business trust duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has the power to carry on its
business as it is now being conducted, and each MFT Portfolio is a
validly existing series of shares of such business trust representing
interests therein under the laws of Massachusetts. MFT has all
necessary federal, state and local authorization to own all of its
properties and assets and to carry on its business as now being
conducted.
(b) Registration as Investment Company. MFT is registered
under the Act as an open-end investment company of the management type;
such registration has not been revoked or rescinded and is in full
force and effect.
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(c) Current Offering Documents. The current prospectuses and
statements of additional information of MFT, each dated October 28,
1994 and included in MFT's registration statement on Form N-1A filed
with Commission, comply in all material respects with the requirements
of the Securities Act of 1933, as amended (the "Securities Act") and
the Act, and do not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements herein,
in light of the circumstances under which they were made, not
misleading.
(d) Capitalization. MFT has an unlimited number of authorized
shares of beneficial interest, currently without par value, of which as
of ________, 1995 there were outstanding the following numbers of
shares of the MFT Portfolios: _______ shares of Vista Treasury Plus
Money Market Fund (consisting of __________ Premier Shares and
__________ Institutional Shares), ________ shares of Vista U.S.
Government Money Market Fund (consisting of __________ Vista Shares,
__________ Premier Shares and __________ Institutional Shares),
________ shares of Vista Global Money Market Fund (consisting of
__________ Vista Shares, __________ Premier Shares and __________
Institutional Shares), _______ shares of Vista Tax Free Money Market
Fund (consisting of __________ Vista Shares, __________ Premier Shares
and __________ Institutional Shares), and _______ shares of Vista New
York Tax Free Money Market Fund (all of the Vista Shares class). There
are no outstanding shares of Vista 100% U.S. Treasury Money Market
Fund. All of the outstanding shares of MFT have been duly authorized
and are validly issued, fully paid and nonassessable. Because MFT is an
open-end investment company engaged in the continuous offering and
redemption of its shares, the number of outstanding shares may change
prior to the Effective Time of the Reorganization. All of each MFT
Portfolio's issued and outstanding shares have been offered and sold in
compliance in all material respects with applicable registration
requirements of the Securities Act and applicable state securities
laws.
(e) Financial Statements. The financial statements of MFT for
the fiscal year ended August 31, 1995, which have been audited by Price
Waterhouse LLP, (the "MFT Financial Statements"), previously delivered
to Hanover, fairly present the financial position of MFT as of the
dates thereof and the results of its operations and changes in its net
assets for each of the periods indicated, in accordance with GAAP.
(f) Shares to be Issued Upon Reorganization. The MFT Portfolio
Shares to be issued in connection with the Reorganization will be duly
authorized and upon consummation of the Reorganization will be validly
issued, fully paid and nonassessable (except as disclosed in the MFT
Portfolios' Prospectuses and recognizing that under Massachusetts law,
shareholders of an MFT Portfolio could, under certain circumstances, be
held personally liable for the obligations of such MFT Portfolio).
(g) Authority Relative to this Agreement. MFT has the power
to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have
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been duly authorized by MFT's Board of Trustees and no other
proceedings by MFT other than those contemplated under this Agreement
are necessary to authorize its officers to effectuate this Agreement
and the transactions contemplated hereby. MFT is not a party to or
obligated under any charter, by-law, indenture or contract provision or
any other commitment or obligation, or subject to any order or decree,
which would be violated by or which would prevent its execution and
performance of this Agreement in accordance with its terms.
(h) Liabilities. There are no liabilities of MFT or the MFT
Portfolios, whether actual or contingent and whether or not determined
or determinable, other than liabilities disclosed or provided for in
the MFT Financial Statements and liabilities incurred in the ordinary
course of business subsequent to August 31, 1995 or otherwise
previously disclosed to Hanover, none of which has been materially
adverse to the business, assets or results of operations of MFT.
(i) No Material Adverse Change. Since August 31, 1995, there
has been no material adverse change in the financial condition, results
of operations, business, properties or assets of MFT, other than those
occurring in the ordinary course of business (for these purposes, a
decline in net asset value and a decline in net assets due to
redemptions do not constitute a material adverse change).
(j) Litigation. There are no claims, actions, suits or
proceedings pending or, to the knowledge of MFT, threatened which would
adversely affect MFT or the MFT Portfolios or MFT's assets or business
or which would prevent or hinder consummation of the transactions
contemplated hereby, there are no facts which would form the basis for
the institution of administrative proceedings against MFT and, to the
knowledge of MFT, there are no regulatory investigations of MFT pending
or threatened, other than routine inspections and audits.
(k) Contracts. Except for contracts and agreements disclosed
to Hanover on Schedule II hereto under which no default exists, MFT is
not a party to or subject to any material contract, debt instrument,
plan, lease, franchise, license or permit of any kind or nature
whatsoever with respect to the MFT Portfolios. As of the Effective Time
of the Reorganization, MFT will have no liability in respect of any of
the contracts referred to in Section 5(f) with respect to which MFT is
to receive releases.
(l) Taxes. The federal income tax returns of MFT and each MFT
Portfolio, and all other income tax returns required to be filed by MFT
and any MFT Portfolio, have been filed for all taxable years to and
including August 31, 1994, and all taxes payable pursuant to such
returns have been paid. To the knowledge of MFT, no such return is
under audit and no assessment has been asserted in respect of any such
return. All federal and other taxes owed by MFT or any MFT Portfolio
have been paid so far as due. Each portfolio of MFT, other than Vista
100% U.S. Treasury Securities Money Market Fund, which has not yet
commenced operations, is qualified as a regulated investment company
under the Internal Revenue Code of 1986, as amended (the "Code"), in
respect of each taxable year since commencement of its operations.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF HANOVER
Hanover represents and warrants to MFT as follows:
(a) Organization, Existence, etc. Hanover is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Maryland and has the power to carry on its business as it
is now being conducted, and each Hanover Portfolio is a validly
existing series of shares of such corporation representing interests
therein under the laws of Maryland. Hanover has all necessary federal,
state and local authorization to own all of its properties and assets
and to carry on its business as now being conducted.
(b) Registration as Investment Company. Hanover is registered
under the Act as an open-end diversified investment company of the
management type; such registration has not been revoked or rescinded
and is in full force and effect.
(c) Current Offering Documents. The current prospectus and
statement of additional information of Hanover, each dated March 30,
1995 and included in Hanover's registration statement on Form N-1A
filed with the Commission, comply in all material respects with the
requirements of the Securities Act and the Act, and do not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) Capitalization. The authorized capital stock of Hanover
consists of 10,000,000,000 shares of Common Stock, each having a par
value $.001 per share. As of ________, 1995, there were outstanding
______ shares of The 100% U.S. Treasury Securities Money Market Fund,
_______ shares of The U.S. Treasury Money Market Fund, ________ shares
of The Government Money Market Fund, _______ shares of The Cash
Management Fund, _______ shares of The Tax Free Money Market Fund,
________ and shares of The New York Tax Free Money Market Fund. All of
the outstanding shares of Hanover have been duly authorized and are
validly issued, fully paid and nonassessable. Because Hanover is an
open-end investment company engaged in the continuous offering and
redemption of its shares, the number of outstanding shares may change
prior to the Effective Time of the Reorganization. All such shares
will, at the time of the Closing, be held by the shareholders of record
of the Hanover Portfolios as set forth on the books and records of
Hanover's transfer agent (and in the amounts set forth therein) and as
set forth in any list of shareholders of record provided to MFT for
purposes of the Closing, and no such shareholders of record will have
any preemptive rights to purchase any of such shares, and Hanover does
not have outstanding any options, warrants or other rights to subscribe
for or purchase any shares (other then dividend reinvestment plans of
the Hanover Portfolios or as set forth in this Agreement), nor are
there outstanding any securities convertible into any shares of the
Hanover Portfolios (except pursuant to exchange privileges
7
described in the current Prospectus and Statement of Additional
Information of Hanover). All of each Hanover Portfolio's issued and
outstanding shares have been offered and sold in compliance in all
material respects with applicable registration requirements of the
Securities Act and applicable state securities laws.
(e) Financial Statements. The financial statements of Hanover
for the year ended November 30, 1994, which have been audited by KPMG
Peat Marwick LLP, and the unaudited financial statements of Hanover for
the six months ended May 31, 1995 (collectively, the "Hanover Financial
Statements"), previously delivered to MFT, fairly present the financial
position of Hanover as of the date thereof, and the results of its
operations and changes in its net assets for the periods indicated, in
accordance with GAAP.
(f) Authority Relative to this Agreement. Hanover has the
power to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by its Board of Directors, and, except for approval by the
shareholders of Hanover, no other proceedings by Hanover are necessary
other than those contemplated under this Agreement to authorize its
officers to effectuate this Agreement and the transactions contemplated
hereby. Hanover is not a party to or obligated under any charter,
by-law, indenture or contract provision or any other commitment or
obligation, or subject to any order or decree, which would be violated
by or which would prevent its execution and performance of this
Agreement in accordance with its terms.
(g) Liabilities. There are no liabilities of Hanover, whether
actual or contingent and whether or not determined or determinable,
other than liabilities disclosed or provided for in the Hanover
Financial Statements and liabilities incurred in the ordinary course of
business subsequent to [date that is fiscal year or stub period end] or
otherwise previously disclosed to MFT, none of which has been
materially adverse to the business, assets or results of Hanover.
(h) No Material Adverse Change. Since May 31, 1995, there has
been no material adverse change in the financial condition, results of
operations, business, properties or assets of Hanover, other than those
occurring in the ordinary course of business (for these purposes, a
decline in net asset value and a decline in net assets due to
redemptions do not constitute a material adverse change).
(i) Litigation. There are no claims, actions, suits or
proceedings pending or, to the knowledge of Hanover, threatened which
would adversely affect Hanover or its assets or business or which would
prevent or hinder consummation of the transactions contemplated hereby,
there are no facts which would form the basis for the institution of
administrative proceedings against Hanover and, to the knowledge of
Hanover, there are no regulatory investigations of Hanover pending or
threatened, other than routine inspections and audits.
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(j) Contracts. Except for contracts and agreements disclosed
to MFT on Schedule II hereto under which no default exists, Hanover is
not a party to or subject to any material contract, debt instrument,
plan, lease, franchise, license or permit of any kind or nature
whatsoever. As of the Effective Time of the Reorganization, Hanover
will have no liability in respect of any of the contracts referred to
in Section 6(e) with respect to which Hanover is to receive releases.
(k) Taxes. The federal income tax returns of Hanover and each
Hanover Portfolio, and all other income tax returns required to be
filed by Hanover, have been filed for all taxable years to and
including the taxable year ended November 30, 1994, and all taxes
payable pursuant to such returns have been paid. To the knowledge of
Hanover, no such return is under audit and no assessment has been
asserted in respect of any such return. All federal and other taxes
owed by Hanover or any Hanover Portfolio have been paid so far as due.
Each Hanover Portfolio has qualified as a regulated investment company
under the Code in respect of each taxable year since commencement of
its operations.
SECTION 5. COVENANTS OF MFT
MFT covenants to Hanover as follows:
(a) Portfolio Securities. All securities owned by MFT as of
the Effective Time of the Reorganization will be owned by MFT free and
clear of any liens, claims, charges, options and encumbrances, except
as may be indicated in a schedule delivered by MFT to Hanover
immediately prior to the Effective Time of the Reorganization or as may
be permitted under the Act.
(b) Formation of New Portfolio; Amendment of Registration
Statement on Form N-1A. Prior to the Effective Time of the
Reorganization, MFT will cause the formation and registration of Vista
100% U.S. Treasury Securities Money Market Fund, including filing an
amendment or amendments to MFT's registration statement on Form N-1A
(collectively, the "First N-1A Amendment") with the Commission relating
to the registration of Vista 100% U.S. Treasury Securities Money Market
Fund. The investment objective and policies of Vista 100% U.S. Treasury
Securities Money Market Fund will conform with the descriptions thereof
contained in the Prospectus and Statement of Additional Information in
the form presented to the Hanover Board of Directors. MFT will not
issue any shares of Vista 100% U.S. Treasury Securities Money Market
Fund prior to the Effective Time of the Reorganization except as
contemplated by this Agreement. Prior to the Effective Time of the
Reorganization, MFT will also file an amendment to MFT's registration
statement on Form N-1A (the "Second N-1A Amendment") with the
Commission to conform the descriptions of the MFT Portfolios in such
registration statement with the descriptions of the MFT Portfolios in
the Registration Statement (as defined in Section 5(c) hereof), as the
Registration Statement may be amended or supplemented prior to the
Effective Time of the Reorganization.
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(c) Registration Statement. MFT shall file with the Commission
a Registration Statement on Form N-14 (the "Registration Statement")
under the Securities Act relating to the MFT Portfolio Shares issuable
hereunder. At the time the Registration Statement becomes effective,
the Registration Statement (i)) will comply in all material respects
with the provisions of the Securities Act and the rules and regulations
of the Commission thereunder (the "Regulations") and (ii) will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and at the time the Registration
Statement becomes effective, at the time of the shareholders' meeting
referred to in Section 1(a) hereof, and at the Effective Time of the
Reorganization, the prospectus/proxy statement (the "Prospectus") and
statement of additional information included therein (the "Statement of
Additional Information"), as amended or supplemented by any amendments
or supplements filed by MFT, will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to
statements in or omissions from a Registration Statement, Prospectus or
Statement of Additional Information made in reliance upon and in
conformity with information furnished by Hanover for use in the
Registration Statement, Prospectus or Statement of Additional
Information as provided in Section 6(b) hereof.
(d) Cooperation in Effecting Reorganization. MFT agrees to use
all reasonable efforts (by taking such actions as may be necessary or
advisable) to effectuate the Reorganization, to continue in operation
thereafter, and to obtain any necessary regulatory approvals. MFT will
cooperate fully with Hanover in preparing and effecting any filings
with the Federal Trade Commission required under federal antitrust laws
with respect to the proposed Reorganization.
(e) Operations in the Ordinary Course. Except as otherwise
contemplated by this Agreement, MFT shall conduct its business in the
ordinary course until the consummation of the Reorganization.
(f) Interim Advisory Arrangements. Each portfolio of MFT shall
enter into an interim advisory agreement with The Chase Manhattan Bank,
N.A. that will be effective beginning at the time the merger of
Chemical Banking Corporation and The Chase Manhattan Corporation is
consummated, and each such agreement shall have been approved by the
Board of Trustees of MFT. MFT shall have obtained from the Commission
exemptive relief from Section 15(a) of the Act enabling it to enter
into the interim advisory agreements referred to above without
obtaining prior shareholder approval, and shall comply with all
representations and conditions contained in the Commission's order
issued in connection therewith.
SECTION 6. COVENANTS OF HANOVER
Hanover covenants to MFT as follows:
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(a) Portfolio Securities. With respect to the assets to be
transferred in accordance with Section 1(a), each Hanover Portfolio's
assets shall consist of all property and assets of any nature
whatsoever, including, without limitation, all cash, cash equivalents,
securities, claims and receivables (including dividend and interest
receivables) owned, and any deferred or prepaid expenses shown as an
asset on Hanover's books. At least five (5) business days prior to the
Closing, each Hanover Portfolio will provide MFT with a list of its
assets and a list of its stated Liabilities. Each Hanover Portfolio
shall have the right to sell any of the securities or other assets
shown on the list of assets prior to the Closing but will not, without
the prior approval of MFT, acquire any additional securities other
than securities which the Corresponding MFT Portfolio is permitted to
purchase, pursuant to its investment objective and policies or
otherwise (taking into consideration its own portfolio composition as
of such date). In the event that MFT informs Hanover that a Hanover
Portfolio holds any investments that its Corresponding MFT Portfolio
would not be permitted to hold, the Hanover Portfolio will dispose of
such securities prior to the Closing to the extent practicable and to
the extent that its shareholders would not be materially affected in
an adverse manner by such a disposition. In addition, Hanover will
prepare and deliver to MFT, immediately prior to the Effective Time of
the Reorganization, a Schedule of Investments (the "Schedule") listing
all the securities owned by each Hanover Portfolio as of the Effective
Time of the Reorganization. All securities to be listed in the
Schedule as of the Effective Time of the Reorganization will be owned
by Hanover free and clear of any liens, claims, charges, options and
encumbrances, except as indicated in the Schedule or as permitted by
the Act, and, except as so indicated, none of such securities is or,
after the Reorganization as contemplated hereby, will be subject to
any restrictions, legal or contractual, on the disposition thereof
(including restrictions as to the public offering or sale thereof
under the Securities Act) and, except as so indicated, all such
securities are or will be readily marketable.
(b) Registration Statement. In connection with the
Registration Statement, Hanover will cooperate with MFT and will
furnish to MFT the information relating to Hanover required by the
Securities Act and the Regulations to be set forth in the Registration
Statement (including the Prospectuses and Statements of Additional
Information). At the time the Registration Statement becomes effective,
the Registration Statement, insofar as it relates to Hanover, (i) will
comply in all material respects with the provisions of the Securities
Act and the Regulations and (ii) will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and at the time the Registration Statement becomes
effective, at the time of the shareholders' meeting referred to in
Section 1(a) hereof and at the Effective Time of the Reorganization,
the Prospectus and Statement of Additional Information, as amended or
supplemented by any amendments or supplements filed by MFT, insofar as
they relate to Hanover, will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall apply only to statements in
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or omissions from the Registration Statement, Prospectus or Statement
of Additional Information made in reliance upon and in conformity with
information furnished by Hanover for use in the Registration Statement,
Prospectus or Statement of Additional Information as provided in this
Section 6(b).
(c) Cooperation in Effecting Reorganization. Hanover agrees to
use all reasonable efforts (by taking such actions as may be necessary
or advisable) to effectuate the Reorganization, including calling the
meeting of shareholders referred to in Section 1(a) of this Agreement,
and to obtain any necessary regulatory approvals. Hanover will
cooperate fully with MFT in preparing and effecting any filings with
the Federal Trade Commission required under federal antitrust laws with
respect to the proposed Reorganization. Hanover will assist MFT in
obtaining such information as MFT reasonably requests concerning the
beneficial ownership of the shares of the Hanover Portfolios.
(d) Operations in the Ordinary Course. Except as otherwise
contemplated by this Agreement, Hanover shall conduct its business in
the ordinary course until the consummation of the Reorganization.
(e) Contract Terminations. Hanover shall, prior to the
consummation of the Reorganization, terminate its agreements with The
Portfolio Group, Inc. (with respect to the 100% U.S. Treasury
Securities Money Market Fund, The U.S. Treasury Money Market Fund, The
Government Money Market Fund and The New York Tax Free Money Market
Fund), Texas Commerce Bank, National Association (with respect to The
Cash Management Fund and The Tax Free Money Market Fund), Chemical
Bank, Xxxxxx Xxxx Incorporated, Hanover Funds Distributor, Inc., and
each of the financial institutions with whom Hanover has entered into a
shareholder servicing agreement (as set forth in Schedule II hereto)
for Investment Advisory, Administration, Administration and Fund
Accounting, Custody, Distribution, Transfer Agency, SubTransfer Agency
and Shareholder Servicing services, as the case may be, such
terminations to be effective as of the Effective Time of the
Reorganization.
SECTION 7. CONDITIONS TO OBLIGATIONS OF HANOVER
The obligations of Hanover hereunder with respect to the consummation
of the Reorganization as it relates to each Hanover Portfolio are subject to the
satisfaction of the following conditions:
(a) Approval by Hanover Shareholders. This Agreement and the
transactions contemplated by the Reorganization, including, when
necessary, a temporary amendment of the investment restrictions that
might otherwise preclude the consummation of the Reorganization, shall
have been approved by the requisite vote of the shares of each Hanover
Portfolio entitled to vote in the matter.
(b) Covenants, Warranties and Representations. MFT shall
have complied with each of its covenants contained herein, each of the
representations and warranties
12
contained herein shall be true in all material respects as of the
Effective Time of the Reorganization (except as otherwise contemplated
herein), there shall have been no material adverse change (as defined
in Section 3(i)) in the financial condition, results of operations,
business, properties or assets of the MFT Portfolios since August 31,
1995, and Hanover shall have received a certificate of the President of
MFT satisfactory in form and substance to Hanover so stating. Hanover
shall also have received certificates of (i) The Chase Manhattan Bank,
N.A., in its capacity as investment adviser to MFT and as MFT's
administrator, and (ii) Vista Broker-Dealer Services, Inc., in its
capacity as MFT's distributor, in each case to the effect that, as of
the Effective Time of the Reorganization, such entity is not aware that
any of the representations and warranties of MFT herein is not true in
all material respects.
(c) Regulatory Approval. The Registration Statement, the First
N-1A Amendment and the Second N-1A Amendment shall each have been
declared effective by the Commission, no stop orders under the
Securities Act pertaining thereto shall have been issued and all
approvals, registrations, and exemptions under federal and state laws
considered to be necessary shall have been obtained.
(d) Tax Opinion. Hanover shall have received the opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx dated on or before the date of the Closing,
addressed to and in form and substance satisfactory to Hanover, as to
certain of the federal income tax consequences under the Code of the
Reorganization, insofar as it relates to each Hanover Portfolio and its
Corresponding MFT Portfolio, and to shareholders of each Hanover
Portfolio. For purposes of rendering their opinion, Xxxxxxx Xxxxxxx &
Xxxxxxxx may rely exclusively and without independent verification, as
to factual matters, upon the statements made in this Agreement, the
prospectus/proxy statement which will be distributed to the
shareholders of the Hanover Portfolios in connection with the
Reorganization, and upon such other written representations as the
President of each of Hanover and MFT will have verified as of the
Effective Time of the Reorganization. The opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx will be to the effect that, based on the facts and assumptions
stated therein, for federal income tax purposes: (i) the Reorganization
will constitute a reorganization within the meaning of section
368(a)(1) of the Code with respect to each Hanover Portfolio and its
Corresponding MFT Portfolio; (ii) no gain or loss will be recognized by
any of the Hanover Portfolios or the Corresponding MFT Portfolios upon
the transfer of all the assets and liabilities, if any, of each Hanover
Portfolio to its Corresponding MFT Portfolio solely in exchange for MFT
Portfolio Shares or upon the distribution of the MFT Portfolio Shares
to the holders of Hanover Portfolio Shares solely in exchange for all
of their Hanover Portfolio Shares; (iii) no gain or loss will be
recognized by shareholders of any of the Hanover Portfolios upon the
exchange of such Hanover Portfolio Shares solely for MFT Portfolio
Shares; (iv) the holding period and tax basis of the MFT Portfolio
Shares received by each holder of Hanover Portfolio Shares pursuant to
the Reorganization will be the same as the holding period (provided the
Hanover Portfolio Shares were held as a capital asset on the date of
the Reorganization) and tax basis of the Hanover Portfolio Shares held
by the shareholder immediately prior to the Reorganization; and (v) the
holding period and tax basis of the assets of each of the
13
Hanover Portfolios acquired by its Corresponding MFT Portfolio will be
the same as the holding period and tax basis of those assets to each of
the Hanover Portfolios immediately prior to the Reorganization.
The payment by Chemical Banking Corporation and/or The Chase
Manhattan Corporation of the related Reorganization expenses referred
to in Section 10 hereof will not affect the opinions set forth above
regarding the tax consequences of the exchanges by Hanover and the
shareholders of Hanover; however, Xxxxxxx Xxxxxxx & Xxxxxxxx will
express no opinion as to any federal income tax consequences to any of
the parties of the payment of such expenses by Chemical Banking
Corporation and/or The Chase Manhattan Corporation.
(e) Opinion of Counsel. Hanover shall have received the
opinion of Kramer, Levin, Naftalis, Nessen, Xxxxx & Xxxxxxx as counsel
for MFT, dated as of the date of the Closing, addressed to and in form
and substance satisfactory to Hanover, to the effect that: (i) MFT is a
business trust duly organized and existing under the laws of the
Commonwealth of Massachusetts, and each MFT Portfolio is a validly
existing series of shares of such business trust; (ii) MFT is an
open-end investment company of the management type registered under the
Act; (iii) this Agreement and the Reorganization provided for herein
and the execution of this Agreement have been duly authorized and
approved by all requisite action of MFT and this Agreement has been
duly executed and delivered by MFT and is a valid and binding
obligation of MFT enforceable against MFT in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; (iv) the Registration
Statement has been declared effective under the Securities Act and to
the best of such counsel's knowledge after reasonable investigation no
stop order has been issued or threatened suspending its effectiveness;
(v) to the best of such counsel's knowledge, no consent, approval,
order or other authorization of any federal or New York state or
Massachusetts state court or administrative or regulatory agency is
required for MFT to enter into this Agreement or carry out its terms
that has not already been obtained, other than where the failure to
obtain any such consent, approval, order or authorization would not
have a material adverse effect on the operations of MFT; (vi) to the
best of such counsel's knowledge, MFT is not in breach or violation of
any material contract listed on Schedule II hereto to which it is a
party, which breach or violation would (a) affect the ability of MFT to
enter into this Agreement or consummate the transactions contemplated
hereby, including the Reorganization, or (b) have a material adverse
effect on the business or financial condition of MFT; (vii) to the best
of such counsel's knowledge, no federal or New York state or
Massachusetts state administrative or regulatory proceeding is pending
or threatened against MFT which would (i) affect the ability of MFT to
enter into this Agreement or consummate the transactions contemplated
hereby, including the Reorganization, or (b) have a material adverse
effect on the business or financial condition of MFT; and (viii) the
MFT Portfolio Shares to be issued in the Reorganization have been duly
authorized and upon issuance
14
thereof in accordance with this Agreement, will be validly issued,
fully paid and nonassessable. In rendering such opinion, Kramer, Levin,
Naftalis, Nessen, Xxxxx & Xxxxxxx may rely on the opinion of
Massachusetts counsel as to matters relating to Massachusetts law and
on certificates of officers and/or trustees of MFT as to factual
matters.
(f) Board of Trustees Approvals. The Board of Trustees of MFT
shall have taken the following action with respect to MFT or the MFT
Portfolios, as the case may be, at a meeting duly called for such
purposes:
(i) approval of the selection of Price
Waterhouse LLP as MFT's independent auditors for the fiscal
year ending August 31, 1996, on terms acceptable to the
Hanover Board of Directors;
(ii) approval of an investment advisory
agreement with The Chase Manhattan Bank, N.A. with respect
to each MFT Portfolio, in each case in the form presented to
the Hanover Board of Directors;
(iii) approval of sub-investment advisory
agreements between The Chase Manhattan Bank, N.A. and Texas
Commerce Bank, National Association with respect to the Vista
Global Money Market Fund (to be renamed the Vista Cash
Management Fund in connection with the Reorganization) and the
Vista Tax Free Money Market Fund, and between The Chase
Manhattan Bank, N.A. and Chase Asset Management, Inc., with
respect to each other MFT Portfolio, in each case in the form
presented to the Hanover Board of Directors;
(iv) approval of the application of MFT's
distribution plan pursuant to Rule 12b-1 under the Act to
Vista Shares of the Vista 100% U.S. Treasury Securities Money
Market Fund, to conform with the Prospectus and Statement of
Additional Information in the form presented to the Hanover
Board of Directors, as the Prospectus and Statement of
Additional Information may be amended or supplemented at the
time of the shareholders' meeting referred to in Section 1(a)
hereof;
(v) approval of the modification of certain
fundamental investment limitations of the MFT Portfolios and
certain other investment policies to conform with the
descriptions thereof contained in the Prospectus and Statement
of Additional Information in the form presented to the Hanover
Board of Directors or as may be amended or supplemented at the
time of the shareholder's meeting referred to in Section 1(a)
hereof; and
(vi) creation of Vista Shares in the Vista
Treasury Plus Money Market Fund and authorization of the
issuance by MFT, immediately prior to the Effective Time of
the Reorganization, of one Vista Share of Vista 100% U.S.
Treasury Securities Money Market Fund of MFT to ______________
in consideration for payment equal to the net asset value per
share of The 100%
15
U.S. Treasury Securities Money Market Fund of Hanover, and one
Vista Share of Vista Treasury Plus Money Market Fund of MFT to
______________ in consideration for payment equal to the net
asset value per share of The U.S Treasury Money market Fund of
Hanover for the purpose of enabling ________________ to vote
on the matters referred to in paragraph (g) and (h),
respectively, of Section 8.
(g) Trustees and Officers Insurance. Chemical Banking
Corporation and/or The Chase Manhattan Corporation shall have purchased
trustees and officers liability insurance coverage referred to in
Section 10(b) of this Agreement.
(h) Contract Terminations. Hanover shall have terminated the
agreements referred to in Section 6(e) of this Agreement as provided
therein.
(i) Bank Holding Company Merger. The merger of The Chase
Manhattan Corporation with and into Chemical Banking Corporation shall
have been consummated.
SECTION 8. CONDITIONS TO OBLIGATIONS OF MFT
The obligations of MFT hereunder with respect to the consummation of
the Reorganization as it relates to each MFT Portfolio are subject to the
satisfaction of the following conditions:
(a) Approval by Shareholders. This Agreement and the
transactions contemplated by the Reorganization, including, when
necessary, a temporary amendment of the investment restrictions that
might otherwise preclude the consummation of the Reorganization, shall
have been approved by the requisite vote of the shares of each Hanover
Portfolio entitled to vote on the matter.
(b) Covenants, Warranties and Representations. Hanover shall
have complied with each of its covenants contained herein, each of the
representations and warranties contained herein shall be true in all
material respects as of the Effective Time of the Reorganization
(except as otherwise contemplated herein), there shall have been no
material adverse change (as defined in Section 4(h)) in the financial
condition, results of operations, business, properties or assets of the
Hanover Portfolios since November, 1995, and MFT shall have received a
certificate of the President of Hanover satisfactory in form and
substance to MFT so stating. MFT shall also have received certificates
of (i) The Portfolio Group, Inc., in its capacity as investment adviser
to The U.S. Treasury Money Market Fund, The Government Money Market
Fund, The 100% U.S. Treasury Securities Money Market Fund and The New
York Tax Free Money Market Fund of Hanover, (ii) Texas Commerce Bank,
National Association, in its capacity as investment adviser to The Cash
Management Fund and The Tax Free Money Market Fund of Hanover, (iii)
Xxxxxx Xxxx Incorporated, in its capacity as Hanover's administrator
and (iv) Hanover Funds Distributor, Inc., in its capacity as Hanover's
distributor, in each case to the effect that, as of the Effective Time
of the
16
Reorganization, such entity is not aware that any of the
representations and warranties of Hanover herein is not true in all
material respects.
(c) Portfolio Securities. All securities to be acquired by
each MFT Portfolio in the Reorganization shall have been approved for
acquisition by the investment adviser of such MFT Portfolio as
consistent with the investment policies of such MFT Portfolio and all
such securities on the books of the Corresponding Portfolio that are
not readily marketable shall be valued on the basis of an evaluation by
an independent appraiser acceptable to both Hanover and MFT at the
expense of Chemical Banking Corporation and/or The Chase Manhattan
Corporation, taking into account the information contained in the
Schedule.
(d) Regulatory Approval. The Registration Statement, the First
N-1A Amendment and the Second N-1A Amendment shall each have been
declared effective by the Commission, no stop orders under the
Securities Act pertaining thereto shall have been issued and all
approvals, registrations, and exemptions under federal and state laws
considered to be necessary shall have been obtained.
(e) Tax Opinion. MFT shall have received the opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx, dated on or before the date of the Closing,
addressed to and in form and substance satisfactory to MFT, as to
certain of the federal income tax consequences under the Code of the
Reorganization insofar as it relates to each Hanover Portfolio and its
Corresponding MFT Portfolio, and to shareholders of each Hanover
Portfolio. For purposes of rendering their opinion, Xxxxxxx Xxxxxxx &
Xxxxxxxx may rely exclusively and without independent verification as
to factual matters, upon the statements made in this Agreement, the
prospectus/proxy statement which will be distributed to the
shareholders of the Hanover Portfolios in connection with the
Reorganization, and upon such other written representations as the
President of each of Hanover and MFT will have verified as of the
Effective Time of the Reorganization. The opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx will be to the effect that, based on the facts and assumptions
stated therein, for federal income tax purposes: (i) the Reorganization
will constitute a reorganization within the meaning of section
368(a)(1) of Code with respect to each Hanover Portfolio and its
Corresponding MFT Portfolio; (ii) no gain or loss will be recognized by
any of the Hanover Portfolios or the Corresponding MFT Portfolios upon
the transfer of all the assets and liabilities, if any, of each Hanover
Portfolio to its Corresponding MFT Portfolio solely in exchange for MFT
Portfolio Shares or upon the distribution of the MFT Portfolios Shares
to the holders of Hanover Portfolio Shares solely in exchange for all
of their Hanover Portfolios Shares; (iii) no gain or loss will be
recognized by shareholders of any of the Hanover Portfolios upon the
exchange of such Hanover Portfolio Shares solely for MFT Portfolio
Shares; (iv) the holding period and tax basis of the MFT Portfolio
Shares received by each holder of Hanover Portfolio Shares pursuant to
the Reorganization will be the same as the holding period (provided the
Hanover Portfolio Shares were held as a capital asset on the date of
the Reorganization) and tax basis of the Hanover Portfolio Shares held
by the shareholder immediately prior to the Reorganization; and (v) the
holding period and tax basis of the assets of each of the
17
Hanover Portfolios acquired by its Corresponding MFT Portfolio will be
the same as the holding period and tax basis of those assets to each of
the Hanover Portfolios immediately prior to the Reorganization.
The payment by Chemical Banking Corporation and/or The Chase
Manhattan Corporation of the related Reorganization expenses referred
to in Section 10 hereof will not affect the opinions set forth above
regarding the tax consequences of the exchanges by Hanover and the
shareholders of Hanover; however, Xxxxxxx Xxxxxxx & Xxxxxxxx will
express no opinion as to any federal income tax consequences to any of
the parties of the payment of such expenses by Chemical Banking
Corporation and/or The Chase Manhattan Corporation.
(f) Opinion of Counsel. MFT shall have received the opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx, as counsel for Hanover, dated as of the
date of the Closing, addressed to and in form and substance
satisfactory to MFT, to the effect that (i) Hanover is a corporation
duly organized and validly existing under the laws of the State of
Maryland and each Hanover Portfolio is a validly existing series of
shares of such corporation; (ii) Hanover is an open-end investment
company of the management type registered under the Act; (iii) this
Agreement and the Reorganization provided for herein and the execution
of this Agreement have been duly authorized and approved by all
requisite corporate action of Hanover and this Agreement has been duly
executed and delivered by Hanover and is a valid and binding obligation
of Hanover enforceable against Hanover in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; (iv) to the best of such
counsel's knowledge, no consent, approval, order or other authorization
of any federal or New York state or Maryland state court or
administrative or regulatory agency is required for Hanover to enter
into this Agreement or carry out its terms that has not already been
obtained other than where the failure to obtain any such consent,
approval, order or authorization would not have a material adverse
effect on the operations of Hanover; (v) to the best of such counsel's
knowledge, Hanover is not in breach or violation of any material
contract listed on Schedule II hereto to which it is a party, which
breach or violation would (a) affect the ability of Hanover to enter
into this Agreement or consummate the transactions contemplated hereby,
including the Reorganization, or (b) have a material adverse effect on
the business or financial condition of Hanover; and (vi) to the best of
such counsel's knowledge, no federal or New York state or Maryland
state administrative or regulatory proceeding is pending or threatened
against Hanover which would (a) affect the ability of Hanover to enter
into this Agreement or consummate the transactions contemplated hereby,
including the Reorganization, or (b) have a material adverse effect on
the business or financial condition of Hanover. In rendering such
opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may rely on the opinion of Maryland
counsel as to matters relating to Maryland law, and on certificates of
officers and/or trustees of Hanover as to factual matters.
18
(g) Vote by the Sole Shareholder of Vista 100% U.S. Treasury
Securities Money Market Fund. _____________ shall have voted,
immediately after it becomes sole shareholder of Vista Shares of Vista
100% U.S. Treasury Securities Money Market Fund of MFT and prior to the
receipt by Hanover of any of Vista 100% U.S. Treasury Securities Money
Market Fund shares other than the share purchased by _____________
pursuant to Section 7(f) hereof, to:
(i) approve the investment advisory agreement
between MFT and The Chase Manhattan Bank, N.A., and the
sub-investment advisory agreement between The Chase Manhattan
Bank and Chase Asset Management, Inc. with respect to Vista
100% U.S. Treasury Securities Money Market Fund as
contemplated by Section 7(f) hereof;
(ii) approve MFT's distribution plan pursuant
to Rule 12b-1 under the Act for Vista Shares of Vista 100%
U.S. Treasury Securities Money Market Fund as contemplated by
Section 7(f) hereof;
(iii) approve all persons who are to be
Trustees of MFT effective upon consummation of the
Reorganization as Trustees of MFT; and
(iv) approve the selection of Price Waterhouse
LLP as MFT's independent auditors for the fiscal year ending
August 31, 1996.
(h) Vote by the Sole Shareholder of Vista Shares of Vista
Treasury Plus Money Market Fund. _____________ shall have voted,
immediately after it becomes sole shareholder of Vista Shares of Vista
Treasury Plus Money Market Fund of MFT and prior to the receipt by
Hanover of any of Vista Treasury Plus Money Market Fund shares other
than the share purchased by _____________ pursuant to Section 7(g)
hereof, to approve MFT's distribution plan pursuant to Rule 12b-1 under
the Act for Vista Shares of Vista Treasury Plus Money Market Fund as
contemplated by Section 7(g) hereof.
(i) Contract Terminations. Hanover shall have terminated the
agreements referred to in Section 6(e) of this Agreement as provided
therein.
(j) Bank Holding Company Merger. The merger of The Chase
Manhattan Corporation with and into Chemical Banking Corporation shall
have been consummated.
SECTION 9. AMENDMENTS; TERMINATIONS; NO SURVIVAL OF COVENANTS,
WARRANTIES AND REPRESENTATIONS
(a) Amendments. The parties hereto may, by agreement in
writing authorized by their respective Board of Trustees or Board of
Directors, amend this Agreement at any time before or after approval
hereof by the shareholders of Hanover or MFT or
19
both, but after such approval, no amendment shall be made which
substantially changes the terms hereof.
(b) Waivers. At any time prior to the Effective Time of the
Reorganization, either of the parties hereto may by written instrument
signed by it (i) waive any inaccuracies in the representations and
warranties made to it contained herein and (ii) waive compliance with
any of the covenants or conditions made for its benefit contained
herein, except that neither party may waive the conditions set forth in
Sections 7(c) or 8(d) hereof.
(c) Termination by Hanover. Hanover may terminate this
Agreement at any time prior to the Effective Time of the Reorganization
by notice to MFT and Chemical Banking Corporation if (i) a material
condition to its performance hereunder or a material covenant of MFT
contained herein shall not be fulfilled on or before the date specified
for the fulfillment thereof or (ii) a material default or material
breach of this Agreement shall be made by MFT.
(d) Termination by MFT. MFT may terminate this Agreement at
any time prior to the Effective Time of the Reorganization by notice to
Hanover and Chemical Banking Corporation if (i) a material condition to
its performance hereunder or a material covenant of Hanover contained
herein shall not be fulfilled on or before the date specified for the
fulfillment thereof or (ii) a material default or material breach of
this Agreement shall be made by Hanover.
(e) Termination by either Hanover or MFT. This Agreement may
be terminated by Hanover or MFT at any time prior to the Effective Time
of the Reorganization, whether before or after approval of this
Agreement by the shareholders of Hanover, without liability on the part
of either party hereto, its respective Directors, Trustees, officers or
shareholders, or Chemical Banking Corporation, on notice to the other
parties in the event that such party's Board of Directors or Board of
Trustees, as the case may be, determines that proceeding with this
Agreement is not in the best interest of that party's shareholders.
Unless the parties hereto shall otherwise agree in writing, this
Agreement shall terminate without liability as of the close of business
on July 31, 1996 if the Effective Time of the Reorganization is not on
or prior to such date.
(f) Survival. No representations, warranties or covenants in
or pursuant to this Agreement (including certificates of officers),
except for the provisions of Section 10 of this Agreement, shall
survive the Reorganization.
SECTION 10. EXPENSES; INSURANCE
(a) Except as otherwise specified in this Section 10, the
expenses of the Reorganization will be borne by Chemical Banking
Corporation and/or The Chase Manhattan Corporation. Such expenses
include, without limitation, (i) expenses incurred in connection with
the entering into and the carrying out of the provisions of
20
this Agreement; (ii) expenses associated with the preparation and
filing of the Registration Statement under the Securities Act covering
the MFT Portfolio Shares to be issued pursuant to the provisions of
this Agreement (other than registration fees payable to the Commission
in respect of the registration of such shares, which shall be payable
by the respective MFT Portfolios in which such shares represent
interests); (iii) registration or qualification fees and expenses of
preparing and filing such forms as are necessary under applicable state
securities laws to qualify the Corresponding MFT Portfolio Shares to be
issued in connection herewith in each state in which shareholders of
the corresponding Hanover Portfolios are resident as of the date of the
mailing of the Prospectus to such shareholders; (iv) postage; (v)
printing; (vi) accounting fees; (vii) legal fees and (viii)
solicitation costs relating to the Reorganization.
(b) Chemical Banking Corporation and/or The Chase Manhattan
Corporation agrees to purchase, prior to the Effective Time of the
Reorganization, trustee and officers liability insurance coverage for
the benefit of the Board of Directors of Hanover for a period of one
year following the Closing, the coverage and policy limits to be no
less favorable than those of the Hanover insurance coverage currently
in existence.
SECTION 11. NOTICES
Any notice, report, statement or demand required or permitted by any
provision of this Agreement shall be in writing and shall be given by hand,
certified mail or by facsimile transmission, shall be deemed given when received
and shall be addressed to the parties hereto at their respective addresses
listed below or to such other persons or addresses as the relevant party shall
designate as to itself from time to time in writing delivered in like manner:
(a) if to Hanover, to it at:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to MFT, to it at:
21
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Facsimile: (212) ______________
with a copy to:
Kramer, Levin, Naftalis, Nessen, Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(c) if to Chemical Banking Corporation, to it at:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
c/o Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(d) if to The Chase Manhattan Corporation, to it at:
c/o Vista Capital Management
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to:
x/x Xxx Xxxxx Xxxxxxxxx Bank, N.A.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
SECTION 12. GENERAL
22
This Agreement supersedes all prior agreements between the parties
(written or oral), is intended as a complete and exclusive statement of the
terms of the Agreement between the parties and may not be changed or terminated
orally. This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more counterparts have been executed by Hanover and MFT and delivered to
each of the parties hereto. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Nothing in this Agreement, expressed or
implied, is intended to confer upon any other person any rights or remedies
under or by reason of this Agreement.
23
Copies of the Declaration of Trust, as amended, establishing MFT are on
file with the Secretary of the Commonwealth of Massachusetts and with the City
Clerk for the City of Boston, and notice is hereby given that this Agreement and
Plan of Reorganization and Liquidation is executed on behalf of MFT by officers
of MFT as officers and not individually and that the obligations of or arising
out of this Agreement are not binding upon any of the Trustees, officers,
shareholders, employees or agents of MFT individually but are binding only upon
the assets and property of MFT.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
Attest: MUTUAL FUND TRUST
By:______________________ By_______________________
Attest: THE HANOVER FUNDS, INC.
By:______________________ By________________________
Accepted and agreed to as to Sections 8(c) and 10:
CHEMICAL BANKING CORPORATION
By:______________________
[ ]
Attorney-in-fact
THE CHASE MANHATTAN CORPORATION
By:______________________
[ ]
Attorney-in-fact
SCHEDULE I
to Agreement
CORRESPONDING PORTFOLIOS OF THE HANOVER FUNDS, INC.
AND MUTUAL FUND TRUST
Hanover Portfolios Corresponding MFT Portfolios
------------------ ----------------------------
The 100% U.S. Treasury Vista 100% U.S. Treasury
Securities Money Market Fund Securities Money Market Fund
The U.S. Treasury Money Market Fund Vista Treasury Plus Money Market Fund
The Government Money Market Fund Vista U.S. Government Money Market
Fund
The Cash Management Fund Vista Global Money Market Fund
The Tax Free Money Market Fund Vista Tax Free Money Market Fund
The New York Tax Free Money Vista New York Tax Free Money
Market Fund Market Fund
