AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as of
February 13, 2008, by and between Gateway Fund (the "Acquired Fund"), a series
of The Gateway Trust, an Ohio business trust (the "Existing Trust"), and
Gateway Fund (the "Acquiring Fund"), a series of Gateway Trust, a Massachusetts
business trust (the "New Trust").
PLAN OF REORGANIZATION
(a) The Acquired Fund shall sell, assign, convey, transfer and deliver to the
Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets. In consideration therefor, the Acquiring Fund shall, on
the Exchange Date, assume all of the known and unknown liabilities of the
Acquired Fund existing at the Valuation Time (as defined in Section 3(c)) and
deliver to the Acquired Fund a number of full and fractional Class A shares of
beneficial interest of the Acquiring Fund (the "Merger Shares") having an
aggregate net asset value equal to the value of the assets of the Acquired Fund
transferred to the Acquiring Fund on such date less the value of the
liabilities of the Acquired Fund assumed by the Acquiring Fund on that date.
It is intended that the reorganization described in this Agreement shall be a
reorganization within the meaning of Section 368 of the Internal Revenue Code
of 1986, as amended and in effect from time to time (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of this
Plan of Reorganization, the Acquired Fund shall distribute the Merger Shares in
complete liquidation to its shareholders of record as of the Exchange Date,
each shareholder being entitled to receive that proportion of Merger Shares
which the number of shares of the Acquired Fund held by such shareholder bears
to the total number of shares of the Acquired Fund outstanding on such date.
Certificates representing the Merger Shares will not be issued. All issued and
outstanding shares of beneficial interest of the Acquired Fund will
simultaneously be cancelled on the books of the Acquired Fund.
(c) As soon as practicable following the liquidation of the Acquired Fund as
aforesaid, the Acquired Fund shall be dissolved pursuant to the provisions of
the Second Amended Agreement and Declaration of Trust of the Existing Trust, as
amended, and applicable law, and its legal existence terminated. Any reporting
responsibility of the Acquired Fund is and shall remain the responsibility of
the Acquired Fund up to and including the Exchange Date and, if applicable,
such later date on which the Acquired Fund is dissolved.
AGREEMENT
The New Trust, on behalf of the Acquiring Fund, and the Existing Trust,
on behalf of the Acquired Fund, agree as follows:
1. Representations, Warranties and Agreements of the Acquiring Fund. The New
Trust, and not the individual Trustees and officers thereof, on behalf of the
Acquiring Fund, represents and warrants to the best of its knowledge and agrees
with the Existing Trust, on behalf of the Acquired Fund that:
a. The Acquiring Fund is a series of shares of the New Trust, a Massachusetts
business trust duly established 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 out its obligations under this Agreement. The New Trust is
qualified as a foreign association in every jurisdiction where required, except
to the extent that failure to so qualify would not have a material adverse
effect on the New Trust or the Acquiring Fund. Each of the New Trust and the
Acquiring Fund has all necessary federal, state and local authorizations to
carry on its business as now being conducted and to carry out this Agreement.
b. The New Trust is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management investment company, and
such registration has not been revoked or rescinded and is in full force and
effect.
c. The Acquiring Fund has no assets and liabilities, except for nominal shares
issued and redeemed prior to the consummation of the transactions contemplated
hereby.
d. The New Trust is not in violation in any material respect of any provisions
of its Agreement and Declaration of Trust or By Laws or of any agreement,
indenture, instrument, contract, lease or other undertaking to which the New
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.
e. The prospectuses and statement of additional information of the Acquiring
Fund, each dated November 21, 2007 and each as from time to time amended or
supplemented (collectively, the "Acquiring Fund Prospectus"), previously
furnished to the Acquired Fund, (i) conform in all material respects to the
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), and (ii) did not as of such date and do not contain, with respect to
the New Trust or the Acquiring Fund, any untrue statements 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.
f. There are no material legal, administrative or other proceedings pending or
threatened against the New Trust or the Acquiring Fund, which assert liability
on the part of the New Trust or the Acquiring Fund. Neither the New Trust nor
the Acquiring Fund knows of any facts which might form the basis for the
institution of such proceedings or 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 herein contemplated.
g. The Acquiring Fund has no known liabilities of a material nature, contingent
or otherwise.
h. The Acquiring Fund has not commenced operations and has not yet filed its
first federal income tax return. At the completion of its first taxable year,
the Acquiring Fund will file its federal income tax return as a "regulated
investment company" and until such time will take all steps necessary to ensure
that it qualifies for taxation as a "regulated investment company" under
Sections 851 and 852 of the Code.
i. 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 the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), the 1940 Act and state securities or "Blue Sky" laws (which term as used
herein shall include the laws of the District of Columbia and of Puerto Rico).
j. There are no material contracts outstanding to which the Acquiring Fund is a
party, other than as are or will be disclosed in the Registration Statement or
the Acquired Fund Proxy Statement (each as defined in Section 1(p) herein) or
the Acquiring Fund Prospectus.
k. All of the issued and outstanding shares of beneficial interest of the
Acquiring Fund have been offered for sale and sold in conformity with all
applicable federal and state securities laws (including any applicable
exemptions therefrom), or the Acquiring Fund has taken any action necessary to
remedy any prior failure to have offered for sale and sold such shares in
conformity with such laws.
l. The Merger Shares will be registered under the 1933 Act with the Securities
and Exchange Commission upon effectiveness of the Registration Statement (as
defined in Section 1(p) herein) and the issuance, offering and sale of the
Merger Shares pursuant to this Agreement will be in compliance with all
applicable federal and state securities or "Blue Sky" laws.
m. The Merger Shares to be issued to the Acquired Fund have been duly
authorized and, when issued and delivered pursuant to this Agreement, will be
legally and validly issued Class A shares of beneficial interest in the
Acquiring Fund and will be fully paid and, except as set forth in the
Registration Statement, nonassessable by the Acquiring Fund, and no shareholder
of the Acquiring Fund will have any preemptive right of subscription or
purchase in respect thereof.
n. All shares of the Acquiring Fund that are issued and outstanding have been,
are, and at the Exchange Date will be, duly and validly issued and outstanding,
fully paid and, except as set forth in the Registration Statement,
nonassessable by the Acquiring Fund. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase
any of the Acquiring Fund shares, nor is there outstanding any security
convertible into any of the Acquiring Fund shares.
o. The Acquiring Fund has not yet commenced investment operations.
p. The registration statement on Form N-14 (the "Registration Statement") filed
with the Securities and Exchange Commission (the "Commission") by the New Trust
on behalf of the Acquiring Fund, which registers the Merger Shares issuable
hereunder and is also the proxy statement of the Acquired Fund relating to the
meeting of the Acquired Fund's shareholders referred to in Section 7 herein
(together with the documents incorporated therein by reference, the "Acquired
Fund Proxy Statement"), on the effective date of the Registration Statement (i)
did comply, does comply and will comply at all relevant times in all material
respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and
the rules and regulations thereunder and (ii) did not, does not, and will not
at any relevant times contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and at the time of the shareholders' meeting
referred to in Section 7 and on the Exchange Date, the prospectus which is
contained in the Registration Statement, as amended or supplemented by any
amendments or supplements filed with the Commission by the New Trust, and the
Acquired Fund Proxy Statement did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated there
in or necessary to make the statements therein not misleading; provided,
however, that none of the representations and warranties in this subparagraph
(p) shall apply to statements in or omissions from the Registration Statement
or the Acquired Fund Proxy Statement made in reliance upon and in conformity
with information furnished by the Acquired Fund for use in the Registration
Statement or the Acquired Fund Proxy Statement.
q. The New Trust satisfies the fund governance standards defined in
Rule 0-1(a)(7) under the 0000 Xxx.
2. Representations, Warranties and Agreements of the Acquired Fund.
The Existing Trust, and not the individual Trustees and officers thereof, on
behalf of the Acquired Fund, represents and warrants to the best of its
knowledge and agrees with the New Trust, on behalf of the Acquiring Fund that:
a. The Acquired Fund is a series of shares of the Gateway Trust, an Ohio
business trust duly established and validly existing under the laws of the
State of Ohio, and has power to own all of its properties and assets and to
carry out this Agreement. The Existing Trust is qualified as a foreign
association in every jurisdiction where required, except to the extent that
failure to so qualify would not have a material adverse effect on the Existing
Trust or the Acquired Fund. Each of the Existing Trust and the Acquired Fund
has all necessary federal, state and local authorizations to own all of its
properties and assets and to carry on its business as now being conducted and
to carry out this Agreement.
b. The Existing Trust is registered under the 1940 Act as an open-end
management investment company, and such registration has not been revoked or
rescinded and is in full force and effect.
c. A statement of assets and liabilities, statement of operations, statement of
changes in net assets and a schedule of investments (indicating their market
values) of the Acquired Fund as of and for the period ended December 31, 2006
and a statement of assets and liabilities, statement of operations, statement
of changes in net assets and a schedule of investments for the six months ended
June 30, 2007 have been furnished to the Acquiring Fund prior to the Exchange
Date. Such statement of assets and liabilities and schedule fairly present the
financial position of the Acquired Fund as of such date and said statements of
operations and changes in net assets fairly reflect the results of its
operations and changes in net assets for the periods covered thereby in
conformity with generally accepted accounting principles.
d. Since June 30, 2007 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 subsection (d) and of Section 9(a) of
this Agreement, 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.
e. The Existing Trust is not in violation in any material respect of any
provision of its Agreement and Declaration of Trust or By Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to which
the Existing 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.
f. The prospectus and the statement of additional information of the Acquired
Fund, each dated May 1, 2007 and each as from time to time amended or
supplemented (collectively, the "Acquired Fund Prospectus"), previously
furnished to the Acquiring Fund (i) conform in all material respects to the
applicable requirements of the 1933 Act and (ii) did not contain as of such
date and do not contain, with respect to the Existing Trust and the Acquired
Fund, any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
g. The Acquired Fund's investment operations from January 1, 2002 to the date
hereof have been in compliance in all material respects with the investment
policies and investment restrictions set forth in the Acquired Fund Prospectus.
h. At the Exchange Date, the Existing 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 this Agreement and will have full right, power and
authority to sell, assign, transfer and deliver the Investments (as defined
below) and all other assets and known and unknown liabilities of the Acquired
Fund to be transferred to the Acquiring Fund pursuant to this Agreement. At
the Exchange 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 no encumbrances, liens or security interests whatsoever and without
any restrictions upon the transfer thereof, except as previously disclosed in
writing to the Acquiring Fund.
i. There are no material legal, administrative or other proceedings pending or
threatened against the Existing Trust or the Acquired Fund, which assert
liability on the part of the Existing Trust or the Acquired Fund. 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
herein contemplated.
j. There are no material contracts outstanding to which the Acquired Fund is a
party, other than as are or will be disclosed in Acquired Fund Prospectus, the
registration statement on Form N-1A of the Acquired Fund or the Acquired Fund
Proxy Statement, or have been disclosed or made available to Natixis Asset
Management Advisors, L.P.
k. The Acquired Fund has no known liabilities of a material nature, contingent
or otherwise, other than those that are shown on the Acquired Fund's statement
of assets and liabilities as of June 30, 2007 referred to above and those
incurred in the ordinary course of its business as an investment company since
such date. Prior to the Exchange Date, the Acquired Fund will quantify and
reflect on its balance sheet all of its material known liabilities and will
advise the Acquiring Fund of all material liabilities, contingent or otherwise,
incurred by it subsequent to June 30, 2007 whether or not incurred in the
ordinary course of business.
l. As of the Exchange Date, the Acquired Fund will have filed all required
federal and other tax returns and reports which, to the knowledge of the
Existing Trust's officers, are required to have been filed by the Acquired Fund
by such date and has paid or will pay all federal and other taxes shown to be
due on said returns or on any assessments received by the Acquired Fund. All
tax liabilities of the Acquired Fund have been adequately provided for on its
books, and no tax deficiency or liability of the Acquired Fund has been
asserted, and no question with respect thereto has been raised or is under
audit by the Internal Revenue Service or by any state, local or other tax
authority for taxes in excess of those already paid.
m. The Existing Trust, on behalf of the Acquired Fund, has and, at the Exchange
Date, 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 Exchange Date, subject only to the delivery of the
Investments and any such other assets and liabilities as contemplated by this
Agreement, the Acquiring Fund will acquire the Investments and any such other
assets and liabilities subject to no encumbrances, liens or security interests
whatsoever and without any restrictions upon the transfer thereof. As used in
this Agreement, the term "Investments" shall mean the Acquired Fund's
investments shown on the schedule of its investments as of June 30, 2007
referred to in Section 2(c) hereof, as modified by such changes in the
portfolio as the Acquired Fund shall make in the ordinary course of business
since such date, and changes resulting from stock dividends, stock split-ups,
mergers and similar corporate actions through the Exchange Date.
n. No registration under the 1933 Act 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 to the Acquiring Fund by the Acquired Fund.
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 1933 Act, 1934 Act, the 1940 Act or state securities or "Blue Sky"
laws.
p. The Acquired Fund qualifies and will at all times through the Exchange Date
qualify for taxation as a "regulated investment company" under Subchapter M of
the Code. The Acquired Fund has satisfied or will satisfy the diversification
requirement under Subchapter M of the Code at the end of the fiscal quarters
ending March 31, 2007, June 30, 2007, September 30, 2007, and December 31,
2007.
q. At the Exchange 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 all other investment restrictions set
forth in the Acquired Fund Prospectus, as amended through the Exchange Date.
r. All of the issued and outstanding shares of beneficial interest of the
Acquired Fund have been offered for sale and sold in conformity with all
applicable federal and state securities laws (including any applicable
exemptions therefrom), or the Acquired Fund has taken any action necessary to
remedy any prior failure to have offered for sale and sold such shares in
conformity with such laws.
s. All issued and outstanding shares of beneficial interest of the Acquired
Fund are, and at the Exchange Date will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Acquired Fund. The Acquired
Fund does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Acquired Fund shares, nor is there
outstanding any security convertible into any of the Acquired Fund shares.
t. The Acquired Fund Proxy Statement, on the date of its filing (i) complied in
all material respects with the provisions of the 1933 Act, the 1934 Act and the
1940 Act and the rules and regulations thereunder and (ii) did not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and at the time of the shareholders' meeting referred to in Section
7 and on the Exchange Date, the Acquired Fund Proxy Statement did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that none of the representations and
warranties in this subsection shall apply to statements in or omissions from
the Acquired Fund Proxy Statement made in reliance upon and in conformity with
information furnished by the Acquiring Fund for use in the Acquired Fund Proxy
Statement.
u. The Existing Trust has no material contracts or other commitments (other
than this Agreement, such other contracts as may be entered into in the
ordinary course of its business and such other contracts as have been
previously disclosed or made available to Natixis Asset Management Advisors,
L.P.) which if terminated may result in material liability to the Acquired Fund
(or to the Acquiring Fund as a result of the transactions contemplated by this
Agreement) or under which (whether or not terminated) any material payments for
periods subsequent to the Exchange Date will be due from the Acquired Fund (or
from the Acquiring Fund as a result of the transactions contemplated by this
Agreement).
v. The information provided by the Acquired Fund for use in the Registration
Statement and Proxy Statement was accurate and complete in all material
respects when supplied and complied with federal securities and other laws and
regulations applicable thereto in all material respects, and has remained
accurate and complete and in such compliance through the date hereof.
w. Gateway Investment Advisers, L.P. does not have any right under any current
fee waiver, expense reimbursement or similar arrangement with the Acquired Fund
to recoup any waived or reimbursed fees or expenses.
x. The Existing Trust satisfies the fund governance standards defined in Rule
0-1(a)(7) under the 1940 Act.
3. Reorganization.
a. Subject to the requisite approval of the shareholders of the Acquired Fund
and to the other terms and conditions contained herein, the Acquired Fund
agrees to sell, assign, convey, transfer and deliver to the Acquiring Fund, and
the Acquiring Fund agrees to acquire from the Acquired Fund, on the Exchange
Date all of the Investments and all of the cash and other properties and assets
of the Acquired Fund, whether accrued or contingent, in exchange for that
number of shares of beneficial interest of the Acquiring Fund provided for in
Section 4 and the assumption by the Acquiring Fund of all of the liabilities of
the Acquired Fund, whether accrued or contingent, existing at the Valuation
Time. The Acquired Fund will, as soon as practicable after the Exchange Date,
distribute in complete liquidation all of the Merger Shares received by it to
the shareholders of the Acquired Fund in exchange for their shares of the
Acquired Fund.
b. The Existing Trust, on behalf of the Acquired Fund, will pay or cause to be
paid to the Acquiring Fund any interest, cash or such dividends, rights and
other payments received for the account of the Acquired Fund on or after the
Exchange Date with respect to the Investments and other properties and assets
of the Acquired Fund, whether accrued or contingent, received on or after the
Exchange Date. Any such distribution shall be deemed included in the assets
transferred to the Acquiring Fund at the Exchange Date and shall not be
separately valued unless the securities in respect of which such distribution
is made shall have gone "ex" such distribution prior to the Valuation Time, in
which case any such distribution which remains unpaid at the Exchange Date
shall be included in the determination of the value of the assets of the
Acquired Fund acquired by the Acquiring Fund.
c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange Date or
such other time as may be mutually agreed upon in writing by the parties hereto
(the "Valuation Time").
d. In the event that immediately prior to the Valuation Time (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 net asset value
of the Acquired Fund or the Acquiring Fund is impracticable, the Exchange 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 or such
other date as may be agreed upon by the New Trust and Existing Trust; provided
that if trading shall not be fully resumed and reporting restored within seven
business days after the Exchange Date, this Agreement may be terminated by
Acquiring Fund or the Acquired Fund upon the giving of written notice to the
other party.
4. Exchange Date; Valuation Time. On the Exchange Date, the Acquiring Fund
will deliver to the Acquired Fund a number of full and fractional Merger Shares
having an aggregate net asset value equal to the value of the assets of the
Acquired Fund on such date less the value of the liabilities of the Acquired
Fund assumed by the Acquiring Fund on that date, determined as hereinafter
provided in this Section 4.
a. The net asset value of the Merger Shares to be delivered to the Acquired
Fund, the value of the assets of the Acquired Fund, and the value of the
liabilities of the Acquired Fund to be assumed by the Acquiring Fund, shall in
each case be determined as of the Valuation Time.
b. The net asset value of the Merger Shares shall be computed in the manner set
forth in the Acquiring Fund Prospectus. The value of the assets and
liabilities of the Acquired Fund shall be determined by the Acquiring Fund, in
cooperation with the Acquired Fund, pursuant to procedures which the Acquiring
Fund would use in determining the fair market value of the Acquiring Fund's
assets and liabilities. Each of the Existing Trust, on behalf of the Acquired
Fund, and the New Trust, on behalf of the Acquiring Fund, hereby agrees to
cooperate with the other party in valuing the securities held by the Acquired
Fund and agrees to take reasonable steps to ensure that the valuation
procedures used by the Acquired Fund and the Acquiring Fund as of the Valuation
Time are substantially identical.
c. No adjustment shall be made in the net asset value of either the Acquired
Fund or the Acquiring Fund to take into account differences in realized and
unrealized gains and losses.
d. The Acquiring Fund shall issue the Merger Shares to the Acquired Fund. The
Acquired Fund shall promptly distribute the Merger Shares to the shareholders
of the Acquired Fund by establishing open accounts for each Acquired Fund
shareholder on the transfer records of the Acquiring Fund. The Acquiring Fund
and the Acquired Fund agree to cooperate in the establishment of such open
accounts. Certificates representing Merger Shares will not be issued to
Acquired Fund shareholders. Any certificates representing shares of the
Acquired Fund shall automatically be cancelled and each holder of a certificate
representing shares of the Acquired Fund shall cease to have any rights with
respect thereto, except the right to receive Merger Shares as provided herein.
e. On the Exchange Date, the Acquiring Fund shall assume all liabilities of the
Acquired Fund, whether accrued or contingent, known or unknown, in connection
with the acquisition of assets and subsequent liquidation and dissolution of
the Acquired Fund or otherwise.
5. Expenses, Fees, etc.
a. Except as otherwise provided in this Section 5, IXIS Anchor Acquisition, LLC
(to be renamed Gateway Investment Advisers, LLC as of 4:01 p.m. on February 15,
2008), by countersigning this Agreement, agrees that it will bear any and all
costs and expenses of the transaction incurred by the Acquiring Fund and the
Acquired Fund including the costs and expenses of the dissolution of the
Acquired Fund, including without limitation the costs and expenses of any state
or federal filings to terminate the existence of the Existing Trust and
deregister the Existing Trust as an investment company; provided, however, that
the Acquiring Fund and the Acquired Fund will each pay any brokerage
commissions, dealer xxxx-ups and similar expenses ("Portfolio Expenses") that
it may incur in connection with the purchases or sale of portfolio securities;
and provided further that, IXIS Anchor Acquisition, LLC or its affiliates will
pay or reimburse the Acquiring Fund for all governmental fees required in
connection with the registration or qualification of the Merger Shares issued
in connection with the reorganization described in this Agreement.
b. In the event the transactions contemplated by this Agreement are not
consummated, then IXIS Anchor Acquisition, LLC agrees that it shall bear all of
the costs and expenses (other than Portfolio Expenses) incurred by both the
Acquiring Fund and the Acquired Fund in connection with such transactions.
c. Notwithstanding any other provisions of this Agreement, if for any reason
the transactions contemplated by this Agreement are not consummated, neither
the Acquiring Fund nor the Acquired Fund shall be liable to the other for any
damages resulting therefrom, including, without limitation, consequential
damages, except as specifically set forth above.
d. Notwithstanding any of the foregoing, costs and expenses will in any event
be paid by the party directly incurring them if and to the extent that the
payment by another party of such costs and expenses would result in the
disqualification of such party as a "regulated investment company" within the
meaning of Subchapter M of the Code.
6. Exchange Date. Delivery of the assets of the Acquired Fund to be
transferred, assumption of the liabilities of the Acquired Fund to be assumed,
and delivery of the Merger Shares to be issued shall be made at the offices of
Natixis Asset Management Advisors, L.P., 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
as of the close of business on February 15, 2008, or at such other time and
date agreed to by the Acquiring Fund and the Acquired Fund, the date and time
upon which such delivery is to take place being referred to herein as the
"Exchange Date."
7. Meeting of Shareholders; Dissolution.
a. The Existing Trust, on behalf of the Acquired Fund, shall call a meeting of
the Acquired Fund's shareholders to take place after the effective date of the
Registration Statement for the purpose of considering the approval of this
Agreement.
b. The Acquired Fund agrees that the liquidation and dissolution of the
Acquired Fund will be effected in the manner provided in the Agreement and
Declaration of Trust of the Existing Trust in accordance with applicable law
and that, after the Exchange Date, the Acquired Fund shall not conduct any
business except in connection with its liquidation and dissolution.
c. The Acquiring Fund shall have filed the Registration Statement with the
Commission. Each of the Acquired Fund and the Acquiring Fund shall cooperate
with the other, and each will furnish to the other the information relating to
itself required by the 1933 Act, the 1934 Act and the 1940 Act and the rules
and regulations thereunder to be set forth in the Registration Statement.
8. Conditions to the Acquiring Fund's Obligations. The obligations of the
Acquiring Fund hereunder shall be subject to the following conditions:
a. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement of the Acquired Fund's assets and liabilities, with values determined
as provided in Section 4 of this Agreement, together with a list of Investments
with their respective tax costs, all as of the Valuation Time, certified on the
Acquired Fund's behalf by the President (or any Vice President) and Treasurer
(or any Assistant Treasurer) of the Existing Trust, and a certificate of both
such officers, dated the Exchange Date, that there has been no material adverse
change in the financial position of the Acquired Fund since June 30, 2007,
other than changes in the Investments and other assets and properties since
that date or changes in the market value of the Investments and other assets of
the Acquired Fund, or changes due to dividends paid, and a certificate of both
such officers representing and warranting that there are no known liabilities,
contingent or otherwise, of the Acquired Fund required to be reflected on a
balance sheet (including notes thereto) in accordance with generally accepted
accounting principles as of June 30, 2007 or in the Acquired Fund's statement
of assets and liabilities as of the Valuation Time that are not so reflected.
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of the Existing Trust
certifying that as of the Exchange Date all representations and warranties of
the Acquired Fund made in this Agreement are true and correct in all material
respects as if made at and as of such date and each of the Existing Trust and
the Acquired Fund has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such date.
c. That there shall not be any material litigation pending with respect to the
matters contemplated by this Agreement.
d. That the Acquiring Fund shall have received an opinion of Xxxxxxxx Xxxx LLP,
counsel to the Acquired Fund, dated the Exchange Date, to the effect that (i)
the Existing Trust is an Ohio business trust duly formed and validly existing
under the laws of the State of Ohio, and the Acquired Fund is a separate series
thereof duly constituted in accordance with the applicable provisions of the
Agreement and Declaration of Trust and By-Laws of the Existing Trust; (ii) this
Agreement has been duly authorized, executed and delivered by the Existing
Trust on behalf of the Acquired Fund and, assuming that the Registration
Statement, the Acquired Fund Prospectus and the Acquired Fund Proxy Statement
comply with the 1933 Act, the 1934 Act and the 1940 Act and assuming due
authorization, execution and delivery of this Agreement by the New Trust on
behalf of the Acquiring Fund, is a valid and binding obligation of the Existing
Trust enforceable against the Acquired Fund in accordance with its terms,
except as may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of general applicability
relating to or affecting creditors' rights generally and other equitable
principles; (iii) the Existing Trust, on behalf of the Acquired Fund, has power
to sell, assign, convey, transfer and deliver the assets contemplated hereby;
(iv) the execution and delivery of this Agreement did not, and the consummation
of the transactions contemplated hereby will not, to the knowledge of such
counsel, violate the Agreement and Declaration of Trust or By-Laws of the
Existing Trust, or, to the knowledge of such counsel without having made any
investigation, any provision of any material agreement known to such counsel to
which the Existing Trust or the Acquired Fund is a party or by which it is
bound or, to the knowledge of such counsel without having made any
investigation, result in the acceleration of any obligation or the imposition
of any penalty under any agreement, judgment or decree to which the Existing
Trust or the Acquired Fund is party or by which either of them is bound; (v)
to the knowledge of such counsel without having made any investigation, no
consent, approval, authorization or order of any court or governmental
authority is required for the consummation by the Trust on behalf of the
Acquired Fund of the transactions contemplated hereby, except such as have been
obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be
required under state securities or "Blue Sky" laws; (vi) the Existing Trust is
registered with the Commission as an investment company under the 1940 Act and
the Acquired Fund is duly constituted as a series thereof and, to the knowledge
of such counsel, such registration is in full force and effect; and (vii) to
the knowledge of such counsel, without having made any investigation, no
litigation or administrative proceeding or investigation of or before any court
or governmental body is presently pending or threatened as to the Existing
Trust or the Acquired Fund or any of their properties or assets that challenges
or seeks to prohibit, restrain or enjoin the transactions contemplated by this
Agreement. Such opinion may state that such counsel does not express any
opinion or belief as to the financial statements or other financial data, or
as to the information relating to the Acquiring Fund, contained in the Acquired
Fund Proxy Statement or the Registration Statement, and that such opinion is
solely for the benefit of the Acquiring Fund, its Trustees and its officers.
In connection with the foregoing, it is understood that counsel may rely upon
the representations contained in this Agreement as well as certificates of an
officer of the Existing Trust.
e. That the Acquiring Fund shall have received an opinion of Ropes & Xxxx LLP,
counsel to the Acquiring Fund, dated the Exchange Date (which opinion would be
based upon certain factual representations and subject to certain
qualifications), to the effect that, on the basis of the existing provisions of
the Code, current administrative rules and court decisions, for federal income
tax purposes: (i) the transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a) of the Code,
and the Acquiring Fund and the Acquired Fund will each be "a party to the
reorganization" within the meaning of Section 368(b) of the Code; (ii) under
Section 1032 of the Code, no gain or loss will be recognized by the Acquiring
Fund upon receipt of the Investments transferred to the Acquiring Fund pursuant
to this Agreement in exchange for the Merger Shares and the assumption by the
Acquiring Fund of the liabilities of the Acquired Fund as contemplated in
Section 3 hereof; (iii
) under Section 362(b) of the Code, the basis to the Acquiring Fund of the
Investments will be the same as the basis of the Investments in the hands of
the Acquired Fund immediately prior to such exchange; (iv) under
Section 1223(2) of the Code, the Acquiring Fund's holding periods with respect
to the Investments will include the respective periods for which the
Investments were held by the Acquired Fund; (v) the Acquiring Fund will succeed
to and take into account the items of the 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; and
(vi) such other matters as the Acquiring Fund may deem necessary or desirable.
f. That the assets of the Acquired Fund to be acquired by the Acquiring Fund
will include no assets which the Acquiring Fund, by reason of limitations in
the New Trust Declaration of Trust and By-Laws or of investment restrictions
disclosed in the Acquiring Fund Prospectus or the Registration Statement as
in effect on the Exchange Date, may not properly acquire.
g. That the Existing Trust shall have received from the Commission and any
relevant state securities administrators such order or orders, if any, as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940
Act and any applicable state securities or "Blue Sky" laws in connection with
the transactions contemplated hereby, and that all such orders shall be in full
force and effect.
h. That all actions taken by the Existing Trust on behalf of the Acquired Fund
in connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance to the
Acquiring Fund and Ropes & Xxxx LLP.
i. That the Acquired Fund shall have furnished to the Acquiring Fund a
certificate, signed by the President (or any Vice President) and the Treasurer
(or any Assistant Treasurer) of the Existing Trust, as to the tax cost to the
Acquired Fund of the Investments delivered to the Acquiring Fund pursuant to
this Agreement, together with any such other evidence as to such tax cost as
the Acquiring Fund may reasonably request.
j. That the Acquired Fund's custodian shall have delivered to the Acquiring
Fund a certificate identifying all of the assets of the Acquired Fund held or
maintained by such custodian as of the Valuation Time.
k. That the Acquired Fund's transfer agent shall have provided to the Acquiring
Fund (i) the originals or true copies of all of the records of the Existing
Trust attributable to the Acquired Fund in the possession of such transfer
agent as of the Exchange Date, (ii) a certificate setting forth the number of
shares of the Acquired Fund outstanding as of the Valuation Time, and (iii) the
name and address of each holder of record of any shares of the Acquired Fund
and the number of shares held of record by each such shareholder.
l. That all of the issued and outstanding shares of beneficial interest of the
Acquired Fund shall have been offered for sale and sold in conformity with all
applicable state securities or "Blue Sky" laws (including any applicable
exemptions therefrom) and, to the extent that any examination of the records of
the Acquired Fund or its transfer agent by the Acquiring Fund or its agents
shall have revealed otherwise, the Acquired Fund shall have taken all actions
that in the opinion of the Acquiring Fund or Ropes & Xxxx LLP are necessary to
remedy any prior failure on the part of the Acquired Fund to have offered for
sale and sold such shares in conformity with such laws.
m. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired Fund
entitled to vote.
n. The Acquired Fund shall have timely filed all required federal and state
income tax returns for the tax year ended December 31, 2006.
o. That the Registration Statement shall have become effective under the 1933
Act, and no stop order suspending such effectiveness shall have been instituted
or, to the knowledge of the New Trust or the Acquiring Fund, threatened by the
Commission.
9. Conditions to the Acquired Fund's Obligations. The obligations of the
Acquired Fund hereunder shall be subject to the following conditions:
a. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement of the Acquiring Fund's net assets, together with a list of portfolio
holdings with values determined as provided in Section 4, all as of the
Valuation Time, certified on the Acquiring Fund's behalf by the President (or
any Vice President) and Treasurer (or any Assistant Treasurer) of the New
Trust, and a certificate of both such officers, dated the Exchange Date, to the
effect that as of the Valuation Time and as of the Exchange Date there has
been no material adverse change in the financial position of the Acquiring Fund
since the date hereof.
b. That the New Trust, on behalf of the Acquiring Fund, shall have executed and
delivered to the Acquired Fund a document dated as of the Exchange Date,
pursuant to which the Acquiring Fund will, in connection with the transactions
contemplated by this Agreement, assume all of the known and unknown liabilities
of the Acquired Fund existing as of the Valuation Time.
c. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of the New Trust
certifying that as of the Exchange Date all representations and warranties of
the Acquiring Fund made in this Agreement are true and correct in all material
respects as if made at and as of such date, and that each of the New Trust and
the Acquiring Fund has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied at or prior to such
date.
d. That there shall not be any material litigation pending or threatened with
respect to the matters contemplated by this Agreement.
e. That the Acquired Fund shall have received an opinion of Ropes & Xxxx LLP,
counsel to the Acquiring Fund, dated the Exchange Date, to the effect that (i)
the New Trust is an unincorporated voluntary association with transferable
shares duly formed and validly existing under the laws of the Commonwealth of
Massachusetts (commonly known as a Massachusetts business trust), and the
Acquiring Fund is a separate series thereof duly constituted in accordance with
the applicable provisions of the 1940 Act and the Agreement and Declaration of
Trust and By-Laws of the New Trust; (ii) this Agreement has been duly
authorized, executed and delivered by the New Trust on behalf of the Acquiring
Fund and, assuming that the Acquiring Fund Prospectus, the Registration
Statement and the Acquired Fund Proxy Statement comply with the 1933 Act, the
1934 Act and the 1940 Act and assuming due authorization, execution and
delivery of this Agreement by the Existing Trust on behalf of the Acquired
Fund, is a valid and bindin
g obligation of the New Trust, enforceable against the Acquiring Fund in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws of general applicability relating to or affecting creditors' rights
generally and other equitable principles; (iii) the Merger Shares to be
delivered to the Acquired Fund as provided for by this Agreement are duly
authorized and upon such delivery will be validly issued and will be fully paid
and, except as set forth below, nonassessable by New Trust and the Acquiring
Fund and no shareholder of the Acquiring Fund has any preemptive right to
subscription or purchase in respect thereof; (iv) the Registration Statement
and all post-effective amendments filed with the Commission on or before the
Closing Date, if any, has become effective under the 1933 Act, and based upon
oral inquiries to the Commission staff on such date, no stop order suspending
the effectiveness of the Registration
Statement has been issued and no proceeding for any such purpose is pending or
threatened by the Commission; (v) the execution and delivery of this Agreement
did not, and the consummation of the transactions contemplated hereby will not,
to the knowledge of such counsel, violate the Agreement and Declaration of
Trust or By-Laws of the New Trust, or, to the knowledge of such counsel without
having made any investigation, any provision of any material agreement known to
such counsel to which the New Trust or the Acquiring Fund is a party or by
which it is bound or, to the knowledge of such counsel without having made any
investigation, result in the acceleration of any obligation or the imposition
of any penalty under any agreement, judgment or decree to which the New Trust
or the Acquiring Fund is party or by which either of them is bound, it being
understood that with respect to investment restrictions as contained in the
Agreement and Declaration of Trust, By-Laws or then-current prospectuses or
statement of additional information of the New Trust, such counsel may rely
upon a certificate of an officer of the New Trust; (vi) to the knowledge of
such counsel without having made any investigation, no consent, approval,
authorization or order of any court or governmental authority is required for
the consummation by the New Trust on behalf of the Acquiring Fund of the
transactions contemplated herein, except such as have been obtained under the
1933 Act, the 1934 Act and the 1940 Act and such as may be required under state
securities or "Blue Sky" laws; (vii) the New Trust is registered with the
Commission as an investment company under the 1940 Act and, to the knowledge of
such counsel, the Commission has not issued to the Acquiring Fund notice of any
hearing or other proceeding to consider suspension or revocation of such
registration; and (viii) to the knowledge of such counsel, without having made
any investigation, no litigation or administrative proceeding or investigation
of or before any court or government
al body is presently pending or threatened as to the New Trust or the Acquiring
Fund or any of their properties or assets that challenges or seeks to prohibit,
restrain or enjoin the transactions contemplated by this Agreement. Such
opinion may also state that such counsel does not express any opinion or belief
as to the financial statements or other financial data, or as to the
information relating to the Acquired Fund, contained in the Acquired Fund Proxy
Statement or the Registration Statement, and that such opinion is solely for
the benefit of the Acquired Fund, its Trustees and its officers. In connection
with the foregoing, it is understood that counsel may rely upon the
representations contained in this Agreement as well as certificates of an
officer of the New Trust, including certificates with respect to investment
restrictions contained in the New Trust's Declaration of Trust or By-Laws or
then-current prospectus or statement of additional information.
Such opinion may also include a statement to the following effect: The
Acquiring Trust is an entity of the type commonly known as a "Massachusetts
business trust." Under Massachusetts law, shareholders could, under certain
circumstances, be held personally liable for the obligations of the Acquiring
Trust. However, the Agreement and Declaration of Trust of the Acquiring Trust
disclaims shareholder liability for acts or obligations of the Acquiring Trust
and requires that a notice of such disclaimer be given in each note, bond,
contract, instrument, certificate or undertaking made or issued by or on behalf
of the Acquiring Trust's trustees, officers or otherwise. The Agreement and
Declaration of Trust of the Acquiring trust provides that in case any
shareholder or former shareholder shall be held to be personally liable solely
by reason of his or her being or having been a shareholder of the Acquiring
Trust or of a particular series or class and not because of his or her acts or
omissions or for some
other reason, the shareholder or former shareholder (or his or her heirs,
executors, administrators or other legal representatives or, in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled out of the assets of the series (or attributable to the class) of
which he or she is or was a shareholder to be held harmless from and
indemnified against all loss and expense arising from such liability. Thus,
the risk of a shareholder's incurring financial loss on account of shareholder
liability is limited to circumstances in which the particular series of which
he or she is or was a shareholder would be unable to meet its obligations.
f. That the Acquired Fund shall have received an opinion of Ropes & Xxxx LLP,
dated the Exchange Date (which opinion would be based upon certain factual
representations and subject to certain qualifications), in form satisfactory
to the Acquired Fund to the effect that, on the basis of the existing
provisions of the Code, current administrative rules and court decisions, for
federal income tax purposes: (i) the transactions contemplated by this
Agreement will constitute a reorganization within the meaning of Section 368(a)
of the Code, and the Acquiring Fund and the Acquired Fund will each be "a party
to the reorganization" within the meaning of Section 368(b) of the Code; (ii)
under Section 361 of the Code, no gain or loss will be recognized by the
Acquired Fund (x) upon the transfer of its assets to the Acquiring Fund in
exchange for the Merger Shares and the assumption by the Acquiring Fund of the
liabilities of the Acquired Fund as contemplated in Section 3 hereof or (y)
upon the distribution of
the Merger Shares to the shareholders of the Acquired Fund as contemplated in
Section 3 hereof; (iii) under Section 354 of the Code, no gain or loss will be
recognized by shareholders of the Acquired Fund on the distribution of Merger
Shares to them in exchange for their shares of the Acquired Fund; (iv) under
Section 358 of the Code, the aggregate tax basis of the Merger Shares that the
Acquired Fund's shareholders receive in place of their Acquired Fund shares
will be the same as the aggregate tax basis of the Acquired Fund shares
surrendered in exchange therefor; and (v) under Section 1223(1) of the Code,
an Acquired Fund's shareholder's holding period for the Merger Shares received
pursuant to the Agreement will be determined by including the holding period
for the Acquired Fund shares exchanged for the Merger Shares, provided that the
shareholder held the Acquired Fund shares as a capital asset.
g. That all actions taken by the New Trust on behalf of the Acquiring Fund in
connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance to the
Acquired Fund and Xxxxxxxx Xxxx LLP.
h. That the New Trust shall have received from the Commission and any relevant
state securities administrator such order or orders as are reasonably necessary
or desirable under the 1933 Act, the 1934 Act, the 1940 Act and any applicable
state securities or "Blue Sky" laws in connection with the transactions
contemplated hereby, and that all such orders shall be in full force and
effect.
i. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of the
holders of the outstanding shares of beneficial interest of the Acquired Fund
entitled to vote.
j. That the Registration Statement on Form N-1A of the New Trust, with respect
to the Acquiring Fund, shall have become effective under the 1933 Act, and no
stop order suspending such effectiveness shall have been instituted or, to the
knowledge of the New Trust or the Acquiring Fund, threatened by the Commission.
k. That the New Trust shall have included in its Declaration of Trust or
By-Laws provisions that indemnify, solely out of assets of the Acquiring Fund
and no other assets, the trustees and officers of the Existing Trust on the E
xchange Date, and all prior trustees and officers of the Existing Trust,
against claims that may be made against such trustees and officers of the
Existing Trust in their capacity as such trustees or officers, with such
provisions to be substantially similar in form and substance to the provisions
under which the trustees and officers of the New Trust are indemnified.
l. That there shall have been (i) obtained on behalf of the Acquiring Fund
"tail" liability insurance with the aggregate coverage amount of $10,000,000
and a retention amount of $150,000 per claim ($0 for the trustees) covering
claims that may be made against the trustees and the officers of the Existing
Trust in their capacity as such trustees or officers for a period of six years
following the Exchange Date and (ii) obtained on behalf of the Acquiring Fund
"tail" liability insurance with an aggregate coverage amount of $5,000,000
covering claims that may be made against the independent trustees of the
Existing Trust in their capacity as such independent trustees for a period of
six years following the Exchange Date. By countersigning this Agreement,
IXIS Anchor Acquisition, LLC (to be renamed Gateway Investment Advisers, LLC
as of 4:01 p.m. on February 15, 2008) agrees that it, and not the New Trust,
will pay or cause to be paid the premiums incurred in connection with the
"tail" insurance referre
d to in clauses (i) and (ii) above.
10. Existing Trust Trustee and Officer Indemnification and Insurance. The New
Trust agrees to (i) take such steps as are necessary to ensure that the
provisions in its Declaration and Trust and By-Laws referred to in clause (i)
of Section 9(k) hereof remain in full force and effect, to the maximum extent
permitted by applicable law, and (ii) for a period of six years after the
Exchange Date, maintain the "tail" insurance referred to in clause (ii) of
Section 9(l) hereof.
11. Certain Tax Returns. The Existing Trust and the New Trust hereby agree
that the federal tax returns for the tax year ended December 31, 2008,
consistent with a reorganization pursuant to Section 368(a)(1)(F) of the Code,
will be a single return based on the operations of the Acquired Fund from
January 1, 2008 through the Exchange Date and the operations of the Acquiring
Fund from the Exchange Date through December 31, 2008.
12. Indemnification.
a. The Acquired Fund shall indemnify and hold harmless, out of the
assets of the Acquired Fund but no other assets, the New Trust and the Trustees
and officers of the New Trust (for purposes of this Section 12(a), the "New
Trust Indemnified Parties") against any and all expenses, losses, claims,
damages and liabilities at any time imposed upon or reasonably incurred by any
one or more of the New Trust Indemnified Parties in connection with, arising
out of or resulting from any claim, action, suit or proceeding in which any one
or more of the New Trust Indemnified Parties may be involved or with which any
one or more of the New Trust Indemnified Parties may be threatened by reason of
any breach of any representation or warranty of the Acquired Fund contained in
this Agreement or untrue statement or alleged untrue statement of a material
fact contained in the Acquired Fund Prospectus, or, to the extent based on or
derived from the Acquired Fund Prospectus or other documents provided by the
Acquired Fund
, contained in the Registration Statement or the Acquired Fund Proxy Statement
or any amendment or supplement to any of the foregoing, or arising out of or
based upon the omission or alleged omission to state in any of the foregoing a
material fact relating to the Existing Trust or the Acquired Fund required to
be stated therein or necessary to make the statements relating to the Existing
Trust or the Acquired Fund therein not misleading, including, without
limitation, any amounts paid by any one or more of the New Trust Indemnified
Parties in a reasonable compromise or settlement of any such claim, action,
suit or proceeding, or threatened claim, action, suit or proceeding made with
the consent of the Existing Trust or the Acquired Fund. The New Trust
Indemnified Parties will notify the Existing Trust and the Acquired Fund in
writing within ten days after the receipt by any one or more of the New Trust
Indemnified Parties of any notice of legal process or any suit brought against
or claim made against such
New Trust Indemnified Party as to any matters covered by this Section 12(a).
The Acquired Fund shall be entitled to participate at its own expense in the
defense of any claim, action, suit or proceeding covered by this Section 12(a),
or, if it so elects, to assume at its expense by counsel satisfactory to the
New Trust Indemnified Parties the defense of any such claim, action, suit or
proceeding, and if the Acquired Fund elects to assume such defense, the New
Trust Indemnified Parties shall be entitled to participate in the defense of
any such claim, action, suit or proceeding at their expense. The Acquired
Fund's obligation under this Section 12(a) to indemnify and hold harmless the
New Trust Indemnified Parties shall constitute a guarantee of payment so that
the Acquired Fund will pay in the first instance any expenses, losses, claims,
damages and liabilities required to be paid by it under this Section 12(a)
without the necessity of the New Trust Indemnified Parties' first paying the
same.
b. The Acquiring Fund shall indemnify and hold harmless, out of the
assets of the Acquiring Fund but no other assets, the Existing Trust and the
Trustees and officers of the Existing Trust (for purposes of this Section
12(b), the "Existing Trust Indemnified Parties") against any and all expenses,
losses, claims, damages and liabilities at any time imposed upon or reasonably
incurred by any one or more of the Existing Trust Indemnified Parties in
connection with, arising out of, or resulting from any claim, action, suit or
proceeding in which any one or more of the Existing Trust Indemnified Parties
may be involved or with which any one or more of the Existing Trust Indemnified
Parties may be threatened by reason of any breach of any representation or
warranty of the Acquiring Fund contained in this Agreement or untrue statement
or alleged untrue statement of a material fact (except to the extent based on
or derived from the Acquired Fund Prospectus or other documents provided by the
Acquired Fund) cont
ained in the Registration Statement, the Acquiring Fund Prospectus or the
Acquired Fund Proxy Statement or any amendment or supplement to any thereof,
or arising out of, or based upon, the omission or alleged omission to state in
any of the foregoing a material fact required to be stated therein or necessary
to make the statements therein not misleading, including, without limitation,
any amounts paid by any one or more of the Trust Indemnified Parties in a
reasonable compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding made with the
consent of the New Trust or the Acquiring Fund. The Existing Trust Indemnified
Parties will notify the New Trust and the Acquiring Fund in writing within ten
days after the receipt by any one or more of the Existing Trust Indemnified
Parties of any notice of legal process or any suit brought against or claim
made against such Trust Indemnified Party as to any matters covered by this
Section 12(b). The Acquiring
Fund shall be entitled to participate at its own expense in the defense of any
claim, action, suit or proceeding covered by this Section 12(b), or, if it so
elects, to assume at its expense by counsel satisfactory to the Existing Trust
Indemnified Parties the defense of any such claim, action, suit or proceeding,
and, if the Acquiring Fund elects to assume such defense, the Existing Trust
Indemnified Parties shall be entitled to participate in the defense of any such
claim, action, suit or proceeding at their own expense. The Acquiring Fund's
obligation under this Section 12(b) to indemnify and hold harmless the Trust
Indemnified Parties shall constitute a guarantee of payment so that the
Acquiring Fund will pay in the first instance any expenses, losses, claims,
damages and liabilities required to be paid by it under this Section 12(b)
without the necessity of the Trust Indemnified Parties' first paying the same.
13. No Broker, etc. Each of the Acquired Fund and the Acquiring Fund
represents that there is no person who has dealt with it or the Existing Trust
or the New Trust, respectively, who, by reason of such dealings, is entitled to
any broker's or finder's or other similar fee or commission payable by either
the Existing Trust or the New Trust arising out of the transactions
contemplated by this Agreement.
14. Termination. The Acquired Fund and the Acquiring Fund may, by mutual
consent of a majority of the trustees of Existing Trust and a majority of the
trustees of New Trust terminate this Agreement, and the Acquired Fund or the
Acquiring Fund, after consultation with counsel and by consent of its Trustees
or an officer authorized by such Trustees, may waive any condition to its
respective obligations hereunder. If the transactions contemplated by this
Agreement have not been substantially completed by March 31, 2008, this
Agreement shall automatically terminate on that date unless a later date is
agreed to by the Acquired Fund and the Acquiring Fund.
15. Covenants, etc. Deemed Material. All covenants, agreements,
representations and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and
relied upon by each of the parties, notwithstanding any investigation made by
them or on their behalf.
16. Rule 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund
will, in connection with the issuance of any Merger Shares to any person who at
the time of the transaction contemplated hereby is deemed to be an affiliate of
a party to the transaction pursuant to Rule 145(c), cause to be affixed upon
the certificates issued to such person (if any) such legends as may be
reasonably believed by counsel to the Acquiring Fund to be required by law and,
further, the Acquiring Fund will issue stop transfer instructions to the
Acquiring Fund's transfer agent with respect to such shares. The Acquired Fund
will provide the Acquiring Fund on the Exchange Date with the name of any
Acquired Fund shareholder who is to the knowledge of the Acquired Fund an
affiliate of the Acquired Fund on such date.
17. Sole Agreement; Amendments; Governing Law. This Agreement supersedes all
previous correspondence and oral communications between the parties regarding
the subject matter hereof, constitutes the only understanding with respect to
such subject matter, may not be changed except by a letter of agreement signed
by each party hereto (except that amendments to provisions other than those in
Section 5 hereof shall not require the signature of Gateway Investment
Advisers, L.P.), and shall be construed in accordance with and governed by
the laws of the Commonwealth of Massachusetts.
18. Waiver. At any time on or prior to the Exchange Date, the Acquired Fund
or the Acquiring Fund, after consultation with counsel and by consent of its
trustees or an officer authorized by such trustees, may waive any condition to
its respective obligations hereunder.
19. Assignment. This Agreement shall be binding upon 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 either 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 other than the parties hereto and their
respective successors and assigns any rights or remedies under or by reason
of this Agreement.
20. 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 facsimile, courier or certified mail addressed to the Existing Trust at
Rookwood Tower, Suite 600, 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 (fax:
000-000-0000) and to the New Trust at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (fax: 000-000-0000).
21. Recourse. All persons dealing with the Acquiring Fund or the Acquired
Fund must look solely to the property of such Fund for the enforcement of any
claims against such Fund, as neither the trustees, directors, officers, agents
nor shareholders of the Funds or other series of the respective Trusts assume
any liability for obligations entered into on behalf of any of the Funds.
22. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
24. Plan of Reorganization. The parties hereby agree that the Plan of
Reorganization for the transactions contemplated hereby is as set forth on
the first page of this agreement.
25. Declaration of Trust.
a. A copy of the Agreement and Declaration of Trust of the New Trust
is on file with the Secretary of the Commonwealth of Massachusetts, and notice
is hereby given that this instrument is executed on behalf of the Trustees of
the New Trust on behalf of the Acquiring Fund as trustees and not individually,
and that the obligations of this instrument are not binding upon any of the
trustees, officers or shareholders of the New Trust individually but are
binding only upon the assets and property of the Acquiring Fund.
b. It is expressly agreed that the obligations of the Acquired Fund
hereunder shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Existing Trust personally, but
shall bind only the trust property of the Acquired Fund, as provided in the
Agreement and Declaration of Trust of the Acquired Fund. The execution and
delivery of this Agreement has been authorized by the Trustees of the Gateway
Trust on behalf of the Acquired Fund and signed by an authorized officer of
the Existing Trust, acting as such. Such authorization by such Trustees and
such execution and delivery by such officer shall not been deemed to have been
made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Acquired Fund as
provided in the Existing Trust's Agreement and Declaration of Trust.
* * * *
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed as a sealed instrument as of the day and year first above written.
THE GATEWAY TRUST,
on behalf of its Gateway Fund
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Chairman
GATEWAY TRUST,
on behalf of its Gateway Fund
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
Agreed and accepted as to Sections 5 and 9(l) only
IXIS ANCHOR ACQUISITION, LLC, to be renamed
GATEWAY INVESTMENT ADVISERS, LLC
as of 4:01 p.m. on February 15, 2008
By: Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Authorized Person
-2-
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION]
