APPENDIX C
FORM OF PLAN OF REORGANIZATION
EXHIBIT 4(iii)
FORM OF
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AGREEMENT AND PLAN OF REORGANIZATION
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This Agreement and Plan of Reorganization (the "Agreement") is made as of
March 13, 2001, by and between Fifth Third Funds ("Fifth Third"), a
Massachusetts business trust, on behalf of Fifth Third Worldwide Fund ("Fifth
Third Worldwide"), a series thereof, and Fifth Third/Maxus Laureate Fund ("Maxus
Laureate"), an Ohio business trust. The capitalized terms used herein shall have
the meaning ascribed to them in this Agreement.
PLAN OF REORGANIZATION
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(a) Maxus Laureate will sell, assign, convey, transfer and deliver to
Fifth Third, and Fifth Third will acquire, on the Exchange Date, all of the
properties and assets existing at the Valuation Time and held by Maxus Laureate
on behalf of Fifth Third Worldwide.
In consideration therefor, Fifth Third Worldwide shall, on the Exchange
Date, assume all of the liabilities of Maxus Laureate and transfer to Maxus
Laureate a number of full and fractional units of beneficial interest ("Fifth
Third Shares") such Shares being Fifth Third Institutional and Advisor Shares of
Fifth Third Worldwide having an aggregate net asset value equal to the value of
the assets of Maxus Laureate transferred to Fifth Third Worldwide on such date
less the value of all of the liabilities of Maxus Laureate assumed by Fifth
Third Worldwide on that date. It is intended that each reorganization described
in this Agreement shall be a tax-free reorganization under the Internal Revenue
Code of 1986, as amended (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of
this Agreement, Maxus Laureate in complete liquidation shall distribute to its
respective shareholders of record as of the Exchange Date the Fifth Third Shares
received by it, each shareholder being entitled to receive that number of Fifth
Third Shares equal to the proportion which the number of units of beneficial
interest ("Shares") of Maxus Laureate held by such shareholder bears to the
number of such Maxus Shares of Maxus Laureate outstanding on such date. Maxus
Laureate shareholders of record holding Maxus Institutional Shares will receive
Fifth Third Institutional Shares and Maxus Laureate shareholders of record
holding Maxus Investor Shares will receive Fifth Third Advisor Shares.
AGREEMENT
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Fifth Third and Maxus Laureate represent, warrant and agree as follows:
1. Representations and Warranties of Maxus Laureate. Maxus Laureate
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represents and warrants to and agrees with Fifth Third and Fifth Third Worldwide
that:
(a) Maxus Laureate is a business trust duly organized 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 its obligations under this Agreement. Maxus
Laureate is not required to qualify as a foreign
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association in any jurisdiction. Maxus Laureate has all necessary federal, state
and local authorizations to carry on its business as now being conducted and to
fulfill the terms of this Agreement, except for shareholder approval and as
otherwise described in Section 1(l).
(b) Maxus Laureate 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. Maxus Laureate has elected to qualify and has qualified as a regulated
investment company under Part I of Subchapter M of the Code, as of and since its
first taxable year, and qualifies and intends to continue to qualify as a
regulated investment company through the Exchange Date. Maxus Laureate has been
a regulated investment company under such sections of the Code at all times
since its inception.
(c) The statements of assets and liabilities, statements of operations,
statements of changes in net assets and schedules of portfolio investments
(indicating their market values) for Maxus Laureate at and for the year ended
December 31, 2000, such statements and schedules having been audited by XxXxxxx
& Associates C.P.A.'s, Inc., independent accountants to Maxus Laureate, have
been furnished to Fifth Third. Such statements of assets and liabilities and
schedule fairly present the financial position of Maxus Laureate as of its date
and said statements of operations and changes in net assets fairly reflect the
results of operations and changes in net assets for the periods covered thereby
in conformity with generally accepted accounting principles.
(d) The prospectus of Maxus Laureate dated April 30, 2000 (the "Maxus
Prospectus") and the Statement of Additional Information for Maxus Funds dated
April 30, 2000 (the "Maxus Statement of Additional Information") and on file
with the Securities and Exchange Commission, that has been previously furnished
to Fifth Third, did not as of its date and does not as of the date hereof
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Maxus Laureate, overtly threatened against Maxus
Laureate which assert liability on the part of Maxus Laureate.
(f) There are no material contracts outstanding to which Maxus Laureate is
a party, other than as disclosed in the Maxus Prospectus and the Maxus Statement
of Additional Information or in the Registration Statement and the Proxy
Statement.
(g) Maxus Laureate does not have any known liabilities of a material
nature, contingent or otherwise, other than those shown as belonging to it on
its statement of assets and liabilities as of December 31, 2000, and those
incurred in the ordinary course of Maxus Laureate's business as an investment
company since that date. Prior to the Exchange Date, Maxus Laureate will
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advise Fifth Third of all known material liabilities, contingent or otherwise,
incurred by it subsequent to December 31, 2000, whether or not incurred in the
ordinary course of business.
(h) As used in this Agreement, the term "Investments" shall mean Maxus
Laureate's investments shown on the schedule of its portfolio investments as of
December 31, 2000, referred to in Section 1(c) hereof, as supplemented with such
changes as Maxus Laureate shall make after December 31, 2000, which changes
shall be disclosed to Fifth Third, and changes resulting from stock dividends,
stock split-ups, mergers and similar corporate actions.
(i) Maxus Laureate has filed or will file all federal and other tax
returns which, to the knowledge of Maxus Laureate's officers, are required to be
filed by the Fund and has paid or will pay all federal and other taxes shown to
be due on said returns or on any assessments received by Maxus Laureate. To the
best of such officers' knowledge, all tax liabilities of Maxus Laureate have
been adequately provided for on its books, and no tax deficiency or liability of
the Fund has been asserted, and no question with respect thereto has been
raised, by the Internal Revenue Service or by any state or local tax authority
for taxes in excess of those already paid.
(j) As of both the Valuation Time and the Exchange Date and except for
shareholder approval and otherwise as described in Section 1(l), Maxus Laureate
will have full right, power and authority to sell, assign, transfer and deliver
the Investments and any other assets and liabilities of Maxus Laureate to be
transferred to Fifth Third Worldwide 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, Fifth Third, on
behalf of Fifth Third Worldwide, will acquire the Investments and any such other
assets subject to no encumbrances, liens or security interests in favor of any
third party creditor of Maxus Laureate and, except as described in Section 1(k),
without any restrictions upon the transfer thereof.
(k) Except as to Investments otherwise disclosed as unregistered
securities pursuant to Section 1(h) hereof, no registration under the Securities
Act of 1933, as amended (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 Maxus Laureate or Fifth Third.
(l) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Maxus Laureate 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, state securities or blue sky laws (which term as used
herein shall include the laws of the District of Columbia and of Puerto Rico) or
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the "H-S-R Act").
(m) The registration statement (the "Registration Statement") filed with
the Securities and Exchange Commission (the "Commission") by Fifth Third on Form
N-14 relating to the Fifth Third Shares issuable hereunder, and the proxy
statement of Maxus Laureate included therein (the "Proxy Statement"), on the
effective date of the Registration Statement and insofar as they relate to Maxus
Laureate, (i) will comply in all material respects with the provisions of the
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1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder
and (ii) 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, in light of the circumstances under which such statements
were made, not misleading; and at the time of the shareholders' meeting referred
to in Section 8(a) below and on the Exchange Date, the prospectus contained in
the Registration Statement of which the Proxy Statement is a part (the
"Prospectus"), as amended or supplemented by any amendments or supplements filed
with the Commission by Fifth Third, insofar as it relates to Maxus Laureate,
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, in light of the circumstances under which such statements were made,
not misleading; provided, however, that none of the representations and
warranties in this subsection shall apply to statements in or omissions from the
Registration Statement, the Prospectus, or the Proxy Statement, made in reliance
upon or in conformity with information furnished by Fifth Third or Fifth Third
Worldwide, for use in the Registration Statement, Prospectus, or Proxy
Statement.
(n) All of the issued and outstanding Maxus Shares of Maxus Laureate have
been offered for sale and sold in conformity with all applicable federal and
state securities laws.
2. Representations and Warranties of Fifth Third Each of Fifth Third and
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Fifth Third Worldwide jointly and severally represents and warrants to and
agrees with Maxus Laureate that:
(a) Fifth Third is a business trust duly established and validly existing
under the laws of The Commonwealth of Massachusetts and has power to carry on
its business as it is now being conducted and to carry out this Agreement.
Fifth Third and Fifth Third Worldwide are not required to qualify as a foreign
association in any jurisdiction. Fifth Third and Fifth Third Worldwide have all
necessary federal, state and local authorizations to own all of their properties
and assets and to carry on their business as now being conducted and to fulfill
the terms of this Agreement, except as set forth in Section 2(i).
(b) Fifth Third 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. Fifth Third Worldwide intends to qualify as a
regulated investment company under Part I of Subchapter M of the Code.
(c) The statements of assets and liabilities, statements of operations,
statements of changes in net assets and schedules of investments (indicating
their market values) for Fifth Third Worldwide for the year ended July 31, 2000,
such statements and schedules having been audited by Xxxxxx Xxxxxxxx LLP,
independent accountants to Fifth Third, have been furnished to Maxus Laureate.
(d) The prospectus of Fifth Third Worldwide dated April 15, 2001 (the
"Fifth Third Prospectus"), and the Statement of Additional Information for Fifth
Third Worldwide, dated April 15, 2001 (the "Fifth Third Statement of Additional
Information") and on file with the Securities and Exchange Commission, which
have been previously furnished to Maxus Laureate,
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did not as of their dates and do not as of the date hereof contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Fifth Third or Fifth Third Worldwide, overtly
threatened against Fifth Third or Fifth Third Worldwide which assert liability
on the part of Fifth Third or Fifth Third Worldwide.
(f) There are no material contracts outstanding to which Fifth Third or
Fifth Third Worldwide is a party, other than as disclosed in Fifth Third's
Prospectus and Statement of Additional Information or in the Registration
Statement.
(g) Neither Fifth Third nor Fifth Third Worldwide has any known
liabilities of a material nature, contingent or otherwise, other than those
shown on its statement of assets and liabilities as of July 31, 2000, referred
to above and those incurred in the ordinary course of the business of Fifth
Third as an investment company or Fifth Third Worldwide since such date. Prior
to the Exchange Date, Fifth Third will advise Maxus Laureate of all known
material liabilities, contingent or otherwise, incurred by it and Fifth Third
Worldwide subsequent to July 31, 2000, whether or not incurred in the ordinary
course of business.
(h) Fifth Third Worldwide has filed or will file all federal and other tax
returns which, to the knowledge of Fifth Third's officers, are required to be
filed by Fifth Third Worldwide and has paid or will pay all federal and other
taxes shown to be due on said returns or on any assessments received by Fifth
Third Worldwide. To the best of such officers' knowledge, all tax liabilities
of Fifth Third Worldwide have been adequately provided for on its books, and no
tax deficiency or liability of Fifth Third Worldwide has been asserted, and no
question with respect thereto has been raised, by the Internal Revenue Service
or by any state or local tax authority for taxes in excess of those already
paid.
(i) No consent, approval, authorization or order of any governmental
authority is required for the consummation by Fifth Third or Fifth Third
Worldwide of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the 1934 Act, the 1940 Act, state securities or
Blue Sky laws or the H-S-R Act.
(j) As of both the Valuation Time and the Exchange Date and otherwise as
described in Section 2(i), Fifth Third on behalf of Fifth Third Worldwide will
have full right, power and authority to purchase the Investments and any other
assets and assume the liabilities of Maxus Laureate to be transferred to Fifth
Third Worldwide pursuant to this Agreement.
(k) The Registration Statement, the Prospectus and the Proxy Statement, on
the effective date of the Registration Statement and insofar as they relate to
Fifth Third and Fifth Third Worldwide: (i) will comply 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) 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, in light of the circumstances in which
they were made,
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not misleading; and at the time of the shareholders' meeting referred to in
Section 8(a) and at the Exchange Date, the Prospectus, as amended or
supplemented by any amendments or supplements filed with the Commission by Fifth
Third or Fifth Third Worldwide, 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, in light of the circumstances in 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 the Registration Statement, the Prospectus or the Proxy
Statement made in reliance upon and in conformity with information furnished by
Maxus Laureate for use in the Registration Statement, the Prospectus or the
Proxy Statement.
(l) Fifth Third Shares to be issued to Maxus Laureate have been duly
authorized and, when issued and delivered pursuant to this Agreement and the
Prospectus, will be legally and validly issued and will be fully paid and
nonassessable by Fifth Third and no shareholder of Fifth Third will have any
preemptive right of subscription or purchase in respect thereof.
(m) The issuance of Fifth Third Shares pursuant to this Agreement will be
in compliance with all applicable federal and state securities laws.
(n) Fifth Third Worldwide, upon filing of its first income tax returns at
the completion of its first taxable year will elect to be a regulated investment
company and until such time will take all steps necessary to ensure
qualification as a regulated investment company under Sections 851 and 852 of
the Code.
(o) Fifth Third through its administrator, transfer agent, custodian or
otherwise, will cooperate fully and in a timely manner with Maxus Laureate in
completing of the actions required of it and its agents and necessary for
consummation of the transactions described in Sections 3 (a) and (b) of this
Agreement.
3. Reorganization. (a) Subject to the requisite approval of the
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shareholders of Maxus Laureate and to the other terms and conditions contained
herein (including Maxus Laureate's obligation to distribute to its respective
shareholders all of its investment company taxable income and net capital gain
as described in Section 9(k) hereof), Maxus Laureate agrees to sell, assign,
convey, transfer and deliver to Fifth Third Worldwide, and Fifth Third Worldwide
agrees to acquire from Maxus Laureate, on the Exchange Date all of the
Investments and all of the cash and other assets of Maxus Laureate in exchange
for that number of Fifth Third Shares of Fifth Third Worldwide provided for in
Section 4 and the assumption by Fifth Third Worldwide of all of the liabilities
of Maxus Laureate. Pursuant to this Agreement, Maxus Laureate will, as soon as
practicable after the Exchange Date, distribute in liquidation all of the Fifth
Third Shares received by it to its shareholders in exchange for their Maxus
Shares of Maxus Laureate.
(b) Maxus Laureate, will pay or cause to be paid to Fifth Third Worldwide
any interest and cash dividends received by it on or after the Exchange Date
with respect to the Investments transferred to Fifth Third Worldwide hereunder.
Maxus Laureate, will transfer to Fifth Third Worldwide any rights, stock
dividends or other securities received by Maxus Laureate after the
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Exchange Date as stock dividends or other distributions on or with respect to
the Investments transferred, which rights, stock dividends and other securities
shall be deemed included in the assets transferred to Fifth Third Worldwide at
the Exchange Date and shall not be separately valued, in which case any such
distribution that remains unpaid as of the Exchange Date shall be included in
the determination of the value of the assets of Maxus Laureate acquired by Fifth
Third Worldwide.
4. Exchange Date; Valuation Time. On the Exchange Date, Fifth Third will
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deliver to Maxus Laureate a number of Fifth Third Shares having an aggregate net
asset value equal to the value of the assets attributable to each class of Maxus
Shares of Maxus Laureate acquired by Fifth Third Worldwide, less the value of
the liabilities of Maxus Laureate assumed, determined as hereafter provided in
this Section 4.
(a) Subject to Section 4(d) hereof, the value of Maxus Laureate's net
assets will be computed as of the Valuation Time using the valuation procedures
for Fifth Third Worldwide set forth in the Fifth Third Prospectus and Fifth
Third Statement of Additional Information. In no event shall the same security
held by both Maxus Laureate and Fifth Third be valued at different prices.
(b) Subject to Section 4(d) hereof, the net asset value of a share of
Fifth Third Worldwide will be determined to the nearest full cent as of the
Valuation Time, using the valuation procedures set forth in the Fifth Third
Prospectus for Fifth Third Worldwide.
(c) Subject to Section 4(d), the Valuation Time shall be 4:00 p.m. Eastern
Standard time on June 22, 2001, or such earlier or later days as may be mutually
agreed upon in writing by the parties hereto (the "Valuation Time").
(d) No formula will be used to adjust the net asset value of Maxus
Laureate or Fifth Third Worldwide to take into account differences in realized
and unrealized gains and losses.
(e) Fifth Third Worldwide shall issue its Fifth Third Shares to Maxus
Laureate on one share deposit receipt registered in the name of Maxus Laureate.
Maxus Laureate shall distribute in liquidation the Fifth Third Shares received
by it hereunder pro rata to its shareholders by redelivering such share deposit
receipt to Fifth Third's transfer agent which will as soon as practicable set up
open accounts for Maxus Laureate shareholders in accordance with written
instructions furnished by Maxus Laureate.
(f) Fifth Third Worldwide shall assume all liabilities of Maxus Laureate,
whether accrued or contingent, in connection with the acquisition of assets and
subsequent dissolution of Maxus Laureate or otherwise, except that recourse for
assumed liabilities relating to Maxus Laureate will be limited to Fifth Third
Worldwide.
5. Expenses, Fees, etc. (a) Subject to subsections 5(b) through 5(e), all
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fees and expenses, including accounting expenses, portfolio transfer taxes (if
any) or other similar expenses incurred directly in connection with the
consummation by Fifth Third and Maxus
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Laureate of the transactions contemplated by this Agreement will be borne by
Fifth Third Bank, including the costs of proxy materials, proxy solicitation,
and legal expenses; provided, however, that such expenses will in any event be
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paid by the party directly incurring such expenses if and to the extent that the
payment by the other party of such expenses would result in the disqualification
of Fifth Third Worldwide or Maxus Laureate, as the case may be, as a "regulated
investment company" within the meaning of Section 851 of the Code. Fees and
expenses not incurred directly in connection with the consummation of the
Transaction will be borne by the party incurring such fees and expenses.
(b) In the event the transactions contemplated by this Agreement are not
consummated by reason of Maxus Laureate being either unwilling or unable to go
forward (other than by reason of the nonfulfillment or failure of any condition
to Maxus Laureate's obligations referred to in Section 8(a) or Section 10),
Maxus Laureate shall pay directly all reasonable fees and expenses incurred by
Fifth Third in connection with such transactions, including, without limitation,
legal, accounting and filing fees.
(c) In the event the transactions contemplated by this Agreement are not
consummated by reason of Fifth Third being either unwilling or unable to go
forward (other than by reason of the nonfulfillment or failure of any condition
to Fifth Third's obligations referred to in Section 8(a) or Section 9), Fifth
Third shall pay directly all reasonable fees and expenses incurred by Maxus
Laureate in connection with such transactions, including without limitation
legal, accounting and filing fees.
(d) In the event the transactions contemplated by this Agreement are not
consummated for any reason other than (i) Fifth Third or Maxus Laureate being
either unwilling or unable to go forward or (ii) the nonfulfillment or failure
of any condition to Maxus Laureate or Fifth Third's obligations referred to in
Section 8(a), Section 9 or Section 10 of this Agreement, then each of Maxus
Laureate and Fifth Third shall bear the expenses it has actually incurred in
connection with such transactions.
(e) Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not consummated, no
party shall be liable to the other party for any damages resulting therefrom,
including without limitation consequential damages, except as specifically set
forth above.
6. Permitted Assets. Fifth Third and Maxus Laureate agree to review the
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assets of Maxus Laureate to ensure that at any time prior to the Exchange Date
the assets of Maxus Laureate do not include any assets that Fifth Third
Worldwide is not permitted, or reasonably believes to be unsuitable for it, to
acquire, including without limitation any security that, prior to its
acquisition by Maxus Laureate, is unsuitable for Fifth Third Worldwide to
acquire.
7. Exchange Date. Delivery of the assets of Maxus Laureate to be
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transferred, assumption of the liabilities of Maxus Laureate to be assumed, and
the delivery of Fifth Third
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Shares to be issued shall be made on June 25, 2001 at 10:00 a.m. or at such
other times and dates agreed to by Maxus Laureate and Fifth Third, the date and
time upon which such delivery is to take place being referred to herein as the
"Exchange Date."
8. Special Meeting of Shareholders; Dissolution. (a) Maxus Laureate agrees
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to call a special meeting of the shareholders as soon as is practicable after
the effective date of the Registration Statement for the purpose of considering
the sale of all of the assets of Maxus Laureate to and the assumption of all of
the liabilities of Maxus Laureate by Fifth Third Worldwide as herein provided,
approving this Agreement, and authorizing the liquidation and dissolution of
Maxus Laureate, and, except as set forth in Section 13, it shall be a condition
to the obligations of each of the parties hereto that the holders of the Maxus
Shares of Maxus Laureate shall have approved this Agreement and the transactions
contemplated herein in the manner required by law and Maxus Laureate's
Declaration of Trust and Bylaws at such a meeting on or before the Valuation
Time.
(b) Maxus Laureate agrees that the liquidation of the Fund will be
effected in the manner provided in Maxus Laureate's Declaration of Trust and
Bylaws in accordance with applicable law, that it will not make any
distributions of any Fifth Third Shares to the shareholders of Maxus Laureate
without first paying or adequately providing for the payment of all of Maxus
Laureate's known debts, obligations and liabilities.
(c) Each of Fifth Third and Maxus Laureate will 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, including the
Prospectus and the Proxy Statement.
9. Conditions to Fifth Third's Obligations. The obligations of Fifth
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Third and Fifth Third Worldwide hereunder shall be subject to the following
conditions:
(a) That this Agreement shall have been approved and the transactions
contemplated hereby, including the liquidation of Maxus Laureate, shall have
been approved by the shareholders of Maxus Laureate in the manner required by
law.
(b) Maxus Laureate shall have furnished to Fifth Third a statement of
Maxus Laureate'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 Maxus
Laureate's behalf by its President (or any Vice President) and Treasurer, 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 Maxus Laureate since December 31,
2000, other than changes in the Investments since that date or changes in the
market value of the Investments, or changes due to net redemptions of Maxus
Shares of Maxus Laureate, dividends paid or losses from operations.
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(c) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Maxus Laureate made in this Agreement are true
and correct in all material respects as if made at and as of such dates, Maxus
Laureate has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to each of such dates, and
Maxus Laureate shall have furnished to Fifth Third a statement, dated the
Exchange Date, signed by Maxus Laureate's President (or any Vice President) and
Treasurer certifying those facts as of such dates.
(d) Maxus Laureate shall have delivered to Fifth Third a letter from
XxXxxxx & Associates C.P.A.'s, Inc. dated the Exchange Date stating that such
firm reviewed the federal and state income tax returns of Maxus Laureate for the
year ended December 31, 2000 and that, in the course of such review, nothing
came to their attention which caused them to believe that such returns did not
properly reflect, in all material respects, the federal and state income taxes
of Maxus Laureate for the periods covered thereby, or that Maxus Laureate would
not qualify as a regulated investment company for federal income tax purposes.
(e) There shall not be any material litigation pending with respect to the
matters contemplated by this Agreement.
(f) Fifth Third shall have received an opinion of McDonald, Hopkins, Xxxxx
& Xxxxx Co., L.P.A., in form reasonably satisfactory to Fifth Third and dated
the Exchange Date, to the effect that (i) Maxus Laureate is a business trust
duly organized and validly existing under the laws of the State of Ohio, (ii)
this Agreement has been duly authorized, executed, and delivered by Maxus
Laureate and, assuming that the Registration Statement, the Prospectus and the
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 Fifth
Third, is a valid and binding obligation of Maxus Laureate, subject to the
effect of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar
laws relating to or affecting creditors' rights generally and court decisions
with respect thereto, and such counsel shall not be required to express an
opinion with respect to the application of equitable principles in any
proceeding, whether at law or in equity, or with respect to the provisions of
this Agreement intended to limit liability for particular matters to Maxus
Laureate Fund and its assets, (iii) Maxus Laureate has power to sell, assign,
convey, transfer and deliver the Investments and other assets contemplated
hereby and, upon consummation of the transactions contemplated hereby in
accordance with the terms of this Agreement, Maxus Laureate will have duly sold,
assigned, conveyed, transferred and delivered such Investments and other assets
to Fifth Third, (iv) the execution and delivery of this Agreement did not, and
the consummation of the transactions contemplated hereby will not, violate Maxus
Laureate's Declaration of Trust and Bylaws or any provision of an agreement
known to such counsel (without any independent inquiry or investigation) to
which Maxus Laureate is a party or by which it is bound, it being understood
that with respect to investment restrictions as contained in Maxus Laureate's
Declaration of Trust and Bylaws, such counsel may rely upon a certificate of an
officer of Maxus Laureate whose responsibility it is to advise Maxus Laureate
with respect to such matters, and (v) to such counsel's knowledge, no consent,
approval,
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authorization or order of any court or governmental authority is required for
the consummation by Maxus Laureate 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 and the
H-S-R Act, and it being understood that such opinion shall not be deemed to
apply to Fifth Third's compliance obligations under the 1933 Act, 1934 Act, 1940
Act, state securities or blue sky laws and H-S-R Act. Such opinion may rely on
the opinion of other counsel to the extent set forth in such opinion, provided
such other counsel is reasonably acceptable to Fifth Third.
(g) Fifth Third shall have received an opinion of Ropes & Xxxx, counsel to
Fifth Third addressed to Fifth Third and Fifth Third Worldwide, and to Maxus
Laureate in form reasonably satisfactory to Fifth Third and dated the Exchange
Date (which opinion would be based upon certain factual representations and
subject to certain qualifications that will be provided to Maxus' counsel), 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 transaction will constitute a reorganization within the meaning of Section
368(a) of the Code, and Fifth Third Worldwide and Maxus Laureate will each be a
"party to a reorganization" within the meaning of Section 368(b) of the Code;
(ii) no gain or loss will be recognized by Fifth Third Worldwide upon the
receipt of the assets of Maxus Laureate in exchange for Fifth Third Shares and
the assumption by Fifth Third Worldwide of the liabilities of Maxus Laureate;
(iii) the basis in the hands of Fifth Third Worldwide of the assets of Maxus
Laureate transferred to Fifth Third Worldwide in the transaction will be the
same as the basis of such assets in the hands of Maxus Laureate immediately
prior to the transfer; (iv) the holding periods of the assets of Maxus Laureate
in the hands of Fifth Third Worldwide will include the periods during which such
assets were held by Maxus Laureate; (v) no gain or loss will be recognized by
Maxus Laureate upon the transfer of Maxus Laureate's assets to Fifth Third
Worldwide in exchange for Fifth Third Shares and the assumption by Fifth Third
Worldwide of the liabilities of Maxus Laureate, or upon the distribution of
Fifth Third Shares by Maxus Laureate to its shareholders in liquidation; (vi) no
gain or loss will be recognized by Maxus Laureate shareholders upon the exchange
of their Maxus Shares for Fifth Third Shares; (vii) the aggregate basis of Fifth
Third Shares a Maxus Laureate shareholder receives in connection with the
transaction will be the same as the aggregate basis of his or her Maxus Shares
exchanged therefor; (viii) a Maxus Laureate shareholder's holding period for his
or her Fifth Third Shares will be determined by including the period for which
he or she held the Maxus Shares exchanged therefor, provided that he or she held
such Maxus Shares as capital assets; and (ix) Fifth Third Worldwide will succeed
to and take into account the items of Maxus Laureate described in Section 381(c)
of the Code. Fifth Third Worldwide will take these items into account subject to
the conditions and limitations specified in Sections 381, 382, 383 and 384 of
the Code and the Regulations thereunder.
(h) Subject to the parties' compliance with Section 6 hereof, the assets
of Maxus Laureate to be acquired by Fifth Third Worldwide will include no assets
which Fifth Third Worldwide, by reason of limitations contained in its
Declaration of Trust or of investment restrictions disclosed in Fifth Third
Prospectus in effect on the Exchange Date, may not properly acquire. Fifth
Third shall not change Fifth Third's Declaration of Trust and Fifth Third
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Prospectuses so as to restrict permitted investments for Fifth Third Worldwide
except as required by the Commission or any state regulatory authority.
(i) The Registration Statement shall have become effective under the 1933
Act and applicable Blue Sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of Fifth Third,
contemplated by the Commission and or any state regulatory authority.
(j) All proceedings taken by Maxus Laureate in connection with the
transactions contemplated by this Agreement and all documents incidental thereto
reasonably shall be satisfactory in form and substance to Fifth Third.
(k) Maxus Laureate shall have furnished to Fifth Third a certificate,
signed by the President (or any Vice President) and the Treasurer of Maxus
Laureate, as to the tax cost to Maxus Laureate of the securities delivered to
Fifth Third pursuant to this Agreement, together with any such other evidence as
to such tax cost as Fifth Third may reasonably request.
(l) Maxus Laureate's custodian shall have delivered to Fifth Third a
certificate identifying all of the assets of Maxus Laureate held by such
custodian as of the Valuation Time.
(m) Maxus Laureate's transfer agent shall have provided to Fifth Third's
transfer agent (i) the originals or true copies of all of the records of Maxus
Laureate in the possession of such transfer agent as of the Exchange Date, (ii)
a record specifying the number of Maxus Shares of Maxus Laureate outstanding as
of the Valuation Time and (iii) a record specifying the name and address of each
holder of record of any such Maxus Shares of Maxus Laureate and the number of
Maxus Shares held of record by each such shareholder as of the Valuation Time.
Maxus Laureate's transfer agent shall also have provided Fifth Third with a
certificate confirming that the acts specified in the preceding sentence have
been taken and that the information so supplied is complete and accurate to the
best knowledge of the transfer agent.
(n) All of the issued and outstanding Maxus Shares of Maxus Laureate shall
have been offered for sale and sold in conformity with all applicable federal or
state securities or blue sky laws and, to the extent that any audit of the
records of Maxus Laureate or its transfer agent by Fifth Third or its agents
shall have revealed otherwise, either (i) Maxus Laureate shall have taken all
actions that in the reasonable opinion of Fifth Third are necessary to remedy
any prior failure on the part of Maxus Laureate to have offered for sale and
sold such Maxus Shares in conformity with such laws or (ii) Maxus Laureate shall
have furnished (or caused to be furnished) surety, or deposited (or caused to be
deposited) assets in escrow, for the benefit of Fifth Third in amounts
sufficient and upon terms satisfactory, in the opinion of Fifth Third or its
counsel, to indemnify Fifth Third against any expense, loss, claim, damage or
liability whatsoever that may be asserted or threatened by reason of such
failure on the part of Maxus Laureate to have offered and sold such Maxus Shares
in conformity with such laws.
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(o) Fifth Third shall have received from Xxxxxx Xxxxxxxx LLP a letter
addressed to Fifth Third dated as of the Exchange Date reasonably satisfactory
in form and substance to Fifth Third and Maxus Laureate to the effect that, on
the basis of limited procedures agreed upon by Fifth Third and Maxus Laureate
and described in such letter (but not an examination in accordance with
generally accepted auditing standards), as of the Valuation Time the value of
the assets of Maxus Laureate to be exchanged for the Fifth Third Shares have
been determined in accordance with the valuation procedures for Fifth Third
Worldwide as set forth in Fifth Third's Prospectus and Statement of Additional
Information.
(p) Maxus Laureate shall have duly executed and delivered to Fifth Third
bills of sale, assignments, certificates and other instruments of transfer
("Transfer Documents") as Fifth Third may deem necessary or desirable to
transfer all of Maxus Laureate's entire right, title and interest in and to the
Investments and all other assets of Maxus Laureate.
10. Conditions to Maxus Laureate's Obligations. The obligations of Maxus
------------------------------------------
Laureate hereunder shall be subject to the following conditions:
(a) This Agreement shall have been adopted and the transactions
contemplated hereby, including the liquidation of Maxus Laureate, shall have
been approved by the shareholders of Maxus Laureate in the manner required by
law.
(b) Fifth Third shall have furnished to Maxus Laureate a statement of
Fifth Third Worldwide'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 Fifth Third's behalf by its President (or any Vice President) and
Treasurer (or any Assistant Treasurer), 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 Fifth Third Worldwide since July 31, 2000, other than changes in its
portfolio securities since that date, changes in the market value of its
portfolio securities, changes due to net redemptions, dividends paid or losses
from operations.
(c) Fifth Third shall have executed and delivered to Maxus Laureate an
Assumption of Liabilities dated as of the Exchange Date pursuant to which Fifth
Third Worldwide will assume all of the liabilities of Maxus Laureate existing at
the Valuation Time in connection with the transactions contemplated by this
Agreement.
(d) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Fifth Third and Fifth Third Worldwide made in
this Agreement are true and correct in all material respects as if made at and
as of such dates, Fifth Third and Fifth Third Worldwide have complied with all
of the agreements and satisfied all of the conditions on their part to be
performed or satisfied at or prior to each of such dates, and Fifth Third shall
have furnished to Maxus Laureate a statement, dated the Exchange Date, signed by
Fifth Third's President (or any Vice President) and Treasurer certifying those
facts as of such dates.
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(e) There shall not be any material litigation pending with respect to the
matters contemplated by this Agreement.
(f) Maxus Laureate shall have received an opinion of Ropes & Xxxx, in form
reasonably satisfactory to Maxus Laureate and dated the Exchange Date, to the
effect that (i) Fifth Third is a business trust and validly existing in
conformity with the laws of The Commonwealth of Massachusetts, and, to the
knowledge of such counsel, neither Fifth Third nor Fifth Third Worldwide is
required to qualify to do business as a foreign association in any jurisdiction,
(ii) the Fifth Third Shares to be delivered to Maxus Laureate as provided for by
this Agreement are duly authorized and upon such delivery will be validly issued
and will be fully paid and nonassessable by Fifth Third and no shareholder of
Fifth Third has any preemptive right to subscription or purchase in respect
thereof, (iii) this Agreement has been duly authorized, executed and delivered
by Fifth Third and, assuming that the Prospectus, the Registration Statement and
the 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 Maxus
Laureate, is a valid and binding obligation of Fifth Third, (iv) the execution
and delivery of this Agreement did not, and the consummation of the transactions
contemplated hereby will not, violate Fifth Third's Declaration of Trust, as
amended, or Bylaws, or any provision of any agreement known to such counsel to
which Fifth Third or Fifth Third Worldwide is a party or by which it is bound,
it being understood that with respect to investment restrictions as contained in
Fifth Third's Declaration of Trust, as amended, Bylaws or then-current
prospectus or statement of additional information of Fifth Third Worldwide, such
counsel may rely upon a certificate of an officer of Fifth Third whose
responsibility it is to advise Fifth Third with respect to such matters, (v) no
consent, approval, authorization or order of any court or governmental authority
is required for the consummation by Fifth Third or Fifth Third Worldwide 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 and the H-S-R Act and it being understood that such
opinion shall not be deemed to apply to Maxus Laureate's compliance obligations
under the 1933 Act, 1934 Act, 1940 Act, state securities or blue sky laws and
the H-S-R Act; and (vi) the Registration Statement has become effective under
the 1933 Act, and to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act.
(g) Maxus Laureate shall have received an opinion of Ropes & Xxxx
addressed to Maxus Laureate in a form reasonably satisfactory to Maxus Laureate
and dated the Exchange Date (which opinion would be based upon certain factual
representations and subject to certain qualifications), with respect to the
matters specified in Section 9(g) of this Agreement.
(h) All proceedings taken by Fifth Third in connection with the
transactions contemplated by this Agreement and all documents incidental thereto
reasonably shall be satisfactory in form and substance to Maxus Laureate.
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(i) The Registration Statement shall have become effective under the 1933
Act and applicable Blue Sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of Fifth Third,
contemplated by the Commission or any state regulatory authority.
(j) At the Exchange Date, Maxus Laureate will have sold such of its
assets, if any, if informed by Fifth Third in writing that such sale is
necessary to assure that, after giving effect to the acquisition of the assets
pursuant to this Agreement, Fifth Third Worldwide designated as a "diversified
company" will remain a "diversified company" within the meaning of Section
5(b)(1) of the 1940 Act and in compliance with such other mandatory investment
restrictions as are set forth in Fifth Third's Prospectus previously furnished
to Maxus Laureate.
11. Indemnification. (a) Maxus Laureate will indemnify and hold harmless
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Fifth Third, its trustees and its officers (for purposes of this subsection, the
"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 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
Indemnified Parties may be involved or with which any one or more of the
Indemnified Parties may be threatened by reason of any untrue statement or
alleged untrue statement of a material fact relating to Maxus Laureate contained
in the Registration Statement, the Prospectus or the 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 Maxus Laureate required to be stated therein or necessary to
make the statements relating to Maxus Laureate therein not misleading,
including, without limitation, any amounts paid by any one or more of the
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 prior consent of Maxus Laureate. The Indemnified Parties will notify
Maxus Laureate in writing within ten days after the receipt by any one or more
of the Indemnified Parties of any notice of legal process or any suit brought
against or claim made against such Indemnified Party as to any matters covered
by this Section 11(a). Maxus Laureate shall be entitled to participate at its
own expense in the defense of any claim, action, suit or proceeding covered by
this Section 11(a), or, if it so elects, to assume at its expense by counsel
satisfactory to the Indemnified Parties the defense of any such claim, action,
suit or proceeding, and if Maxus Laureate elects to assume such defense, the
Indemnified Parties shall be entitled to participate in the defense of any such
claim, action, suit or proceeding at their expense. Maxus Laureate's obligation
under this Section 11(a) to indemnify and hold harmless the Indemnified Parties
shall constitute a guarantee of payment so that Maxus Laureate will pay in the
first instance any expenses, losses, claims, damages and liabilities required to
be paid by them under this Section 11(a) without the necessity of the
Indemnified Parties' first paying the same.
(b) Fifth Third will indemnify and hold harmless Maxus Laureate, its
trustees and its officers (for purposes of this subparagraph, the "Indemnified
Parties") against any and all
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expenses, losses, claims, damages and liabilities at any time imposed upon or
reasonably incurred by any one or more of the 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 Indemnified Parties may be involved or with which
any one or more of the Indemnified Parties may be threatened by reason of any
untrue statement or alleged untrue statement of a material fact relating to
Fifth Third or Fifth Third Worldwide contained in the Registration Statement,
the Prospectus or the 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 Fifth Third or
Fifth Third Worldwide required to be stated therein or necessary to make the
statements relating to Fifth Third or Fifth Third Worldwide therein not
misleading, including, without limitation, any amounts paid by any one or more
of the 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 prior consent of Fifth Third. The Indemnified Parties
will notify Fifth Third in writing within ten days after the receipt by any one
or more of the Indemnified Parties of any notice of legal process or any suit
brought against or claim made against such Indemnified Party as to any matters
covered by this Section 11(b). Fifth Third shall be entitled to participate at
its own expense in the defense of any claim, action, suit or proceeding covered
by this Section 11(b), or, if it so elects, to assume at its expense by counsel
satisfactory to the Indemnified Parties the defense of any such claim, action,
suit or proceeding, and, if Fifth Third elects to assume such defense, the
Indemnified Parties shall be entitled to participate in the defense of any such
claim, action, suit or proceeding at their own expense. Fifth Third Worldwide's
obligation under this Section 11(b) to indemnify and hold harmless the
Indemnified Parties shall constitute a guarantee of payment so that Fifth Third
Worldwide will pay in the first instance any expenses, losses, claims, damages
and liabilities required to be paid by them under this Section 11(b) without the
necessity of the Indemnified Parties' first paying the same.
12. No Broker, etc. Each of Fifth Third and Maxus Laureate represents
--------------
that there is no person who has dealt with it who by reason of such dealings is
entitled to any broker's or finder's or other similar fee or commission arising
out of the transactions contemplated by this Agreement.
13. Termination. Fifth Third and Maxus Laureate may, by mutual consent of
-----------
their respective trustees, terminate this Agreement, and Fifth Third or Maxus
Laureate, after consultation with counsel and by consent of their respective
trustees and directors or an officer authorized by such trustees or directors,
may waive any condition to their respective obligations hereunder. If the
transactions contemplated by this Agreement have not been substantially
completed by December 31, 2001, this Agreement shall automatically terminate on
that date unless a later date is agreed to by Fifth Third and Maxus Laureate.
14. Covenants, etc. Deemed Material. All covenants, agreements,
-------------------------------
representations and warranties made under this Agreement and any certificates
delivered
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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.
15. Sole Agreement; Amendments. 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, and shall be construed in accordance with and governed by the laws of
The Commonwealth of Massachusetts.
16. Fifth Third Agreement and Declaration of Trust Fifth Third is a
----------------------------------------------
business trust organized under Massachusetts law and under a Declaration of
Trust, to which reference is hereby made and a copy of which is on file at the
office of the Secretary of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "Fifth Third Funds" entered into in the name or on
behalf thereof by any of the Trustees, officers, employees or agents are made
not individually, but in such capacities, and are not binding upon any of the
Trustees, officers, employees, agents or shareholders of Fifth Third personally,
but bind only the assets of Fifth Third and all persons dealing with any series
or funds of Fifth Third, such as Fifth Third Worldwide, must look solely to the
assets of Fifth Third belonging to such series or funds for the enforcement of
any claims against Fifth Third.
17. Maxus Laureate Agreement and Declaration of Trust Maxus Laureate is a
-------------------------------------------------
business trust organized under Ohio law and under a Declaration of Trust, to
which reference is hereby made and a copy of which is on file at the office of
the Secretary of Ohio and elsewhere as required by law, and to any and all
amendments thereto so filed or hereafter filed. The obligations of "Fifth
Third/Maxus Laureate Fund" entered into in the name or on behalf thereof by any
of the Trustees, officers, employees or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, officers,
employees, agents or shareholders of Maxus Laureate personally, but bind only
the assets of Maxus Laureate and all persons dealing with any series or funds of
Maxus Laureate, such as Maxus Laureate, must look solely to the assets of Maxus
Laureate belonging to such series or funds for the enforcement of any claims
against Maxus Laureate.
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This Agreement may be executed in any number of counter-parts, each of
which, when executed and delivered, shall be deemed to be an original.
FIFTH THIRD/MAXUS LAUREATE FUND
By:___________________________
FIFTH THIRD FUNDS
On Behalf of its Fifth Third Worldwide Fund
By:____________________________
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