XXXXX FARGO FUNDS TRUST
XXXXX FARGO VARIABLE TRUST
EVERGREEN EQUITY TRUST
EVERGREEN FIXED INCOME TRUST
EVERGREEN INTERNATIONAL TRUST
EVERGREEN MONEY MARKET TRUST
EVERGREEN MUNICIPAL TRUST
EVERGREEN SELECT EQUITY TRUST
EVERGREEN SELECT FIXED INCOME TRUST
EVERGREEN SELECT MONEY MARKET TRUST
EVERGREEN VARIABLE ANNUITY TRUST
AGREEMENT AND
PLAN OF
REORGANIZATION
DATED AS OF MARCH 1, 2010
This AGREEMENT AND PLAN OF REORGANIZATION (the "Plan") is made as of this
March 1, 2010, by and among Xxxxx Fargo Funds Trust and Xxxxx Fargo Variable
Trust (each a "WFA Fund Trust"), each a Delaware statutory trust, for itself and
with respect to each of its series that is an Acquiring Fund, as defined below,
or a Target Fund, as defined below, each WFA Fund Trust, Acquiring Fund and
Target Fund acting on its own behalf separately from all of the other parties
hereto and not jointly or jointly and severally with any other party hereto;
Evergreen Equity Trust, Evergreen Fixed Income Trust, Evergreen International
Trust, Evergreen Money Market Trust, Evergreen Municipal Trust, Evergreen Select
Equity Trust, Evergreen Select Fixed Income Trust, Evergreen Select Money Market
Trust and Evergreen Variable Annuity Trust (each an "Evergreen Fund Trust"),
each a Delaware statutory trust, for itself and with respect to each of its
series that is a Target Fund, as defined below, each Evergreen Fund Trust and
Target Fund acting on its own behalf separately from all of the other parties
hereto and not jointly or jointly and severally with any other party hereto; as
to Section 17 of this Plan only, Xxxxx Fargo Funds Management, LLC ("Xxxxx Fargo
Funds Management"), the investment adviser to each series of each WFA Fund
Trust; and as to Section 17 of this Plan only, Evergreen Investment Management
Company, LLC ("EIMC"), the investment adviser to each series of each Evergreen
Fund Trust;
WHEREAS, the WFA Fund Trusts and the Evergreen Fund Trusts are open-end
management investment companies registered with the Securities and Exchange
Commission (the "SEC") under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, Xxxxx Fargo Funds Management and EIMC are "affiliated persons" of
each other under Section 2(a)(3)(C) of the 1940 Act due to their common
ownership;
WHEREAS, the parties desire that each Acquiring Fund acquire all of the
Assets of its Corresponding Target Fund, as defined below, in return for shares
of the Acquiring Fund and the assumption by the Acquiring Fund of all of the
Liabilities of the Corresponding Target Fund; and that such shares of the
Acquiring Fund be distributed to the shareholders of the Corresponding Target
Fund in connection with the liquidation and termination of the Corresponding
Target Fund (each transaction between an Acquiring Fund and its Corresponding
Target Fund, a "Reorganization");
WHEREAS, this Plan contemplates multiple Reorganizations but is intended to
have effect in respect of each Reorganization as a separate agreement and plan
of reorganization between an Acquiring Fund and one Corresponding Target Fund
and is to be read and interpreted accordingly;
WHEREAS, each Acquiring Fund and each WFA Fund Trust acting for itself and
on behalf of such Acquiring Fund, and each Target Fund and each Selling Fund
Trust acting for itself and on behalf of such Target Fund, is acting separately
from all of the other parties and their series, as applicable, and not jointly
or jointly and severally with any other party;
WHEREAS, without limiting the foregoing, references in this Plan to "the
WFA Fund Trust" and "the Selling Fund Trust" or otherwise to parties to this
Plan shall be references only to the WFA Fund Trust or the Selling Fund Trust
whose series are engaged in any specific Reorganization transaction; and
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WHEREAS, the parties intend that each Reorganization qualify as a
"reorganization," within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that each Acquiring Fund and its
Corresponding Target Fund will be a "party to a reorganization," within the
meaning of Section 368(b) of the Code, with respect to the Reorganization;
NOW, THEREFORE, in accordance with the mutual promises described herein,
the parties agree as follows:
1. Definitions.
The following terms shall have the following meanings:
1933 Act .................... The Securities Act of 1933, as amended.
1934 Act .................... The Securities Exchange Act of 1934, as amended.
Acquiring Class ............. The class of shares of an Acquiring Fund that a
WFA Fund Trust will issue to a Target Fund in
respect of the Assets and Liabilities of the
Target Fund attributable to the Corresponding
Target Class, as set forth in Annex A.
Acquiring Fund .............. Each Fund listed in the column entitled
"Acquiring Fund" in Annex A.
Acquiring Fund Financial
Statements .................. The audited financial statements of an
Acquiring Fund for its most recently completed
fiscal year together with the unaudited
financial statements of the Acquiring Fund for
any semi-annual period completed since the end
of the most recently completed fiscal year, in
each case to the extent available.
Active Reorganization ....... Each Reorganization set forth in the Active
Reorganization Table on Annex A.
Annex A ..................... Annex A to this Plan, as it may be amended from
time to time.
Assets ...................... All property and assets of any kind and all
interests, rights, privileges and powers of or
attributable to a Fund, whether or not
determinable at the appropriate Effective Time
and wherever located. Assets include, without
limitation, all cash, cash equivalents,
securities, claims (whether absolute or
contingent, known or unknown, accrued or
unaccrued or conditional or unmatured),
contract rights and receivables (including
dividend and interest receivables and
receivables for shares sold) owned by a Fund
and any deferred or prepaid expense shown as an
asset on such Fund's books.
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Assets List .................. A list of securities and other Assets of or
attributable to a Fund as of the date provided.
Board ........................ The Board of Trustees of a WFA Fund Trust or an
Evergreen Fund Trust.
Closing Date ................. The closing date for each Reorganization listed
in the column entitled "Closing Date" in Annex
A or such other date as the parties may agree
to in writing, including any postponements
described in the definition of Valuation Time.
Corresponding Acquiring The Acquiring Fund share class set forth
Class ........................ opposite a Target Class in Annex A.
Corresponding Acquiring The Acquiring Fund set forth opposite a Target
Fund ......................... Fund in Annex A.
Corresponding Target Class ... The Target Fund share class set forth opposite
an Acquiring Class in Annex A.
Corresponding Target Fund .... The Target Fund set forth opposite an Acquiring
Fund in Annex A.
Effective Time ............... 9:00 a.m. Eastern Time on the business day
following the Closing Date of a Reorganization,
or such other time and date as the parties may
agree to in writing.
Fund ......................... An Acquiring Fund or a Target Fund.
HSR Act ...................... The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
Liabilities .................. All liabilities of, or allocated or
attributable to, a Fund, whether known or
unknown, accrued or unaccrued, absolute or
contingent, conditional or fixed, matured or
unmatured. For clarity and without limitation,
the Liabilities of a Target Fund of an
Evergreen Fund Trust include all of its present
or future obligations (or the obligations of
any Evergreen Fund Trust relating to the Target
Fund) under or in respect of deferred
compensation and as to indemnification
(including without limitation with respect to
any action, suit, or proceeding, whether or not
currently pending or threatened).
Material Agreements .......... The agreements set forth in Schedule A, as it
may be amended from time to time.
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Reorganization Documents .... With respect to an Acquiring Fund, such bills
of sale, assignments, and other instruments of
transfer as the WFA Fund Trust in question
reasonably deems necessary or desirable to
effect any Corresponding Target Fund's transfer
of all of its rights and title to and interest
in its Assets to the Acquiring Fund. With
respect to a Target Fund, such instruments of
assumption, instruments of transfer, and other
documents as the Selling Fund Trust in question
reasonably deems necessary or desirable to
effect the Corresponding Acquiring Fund's
assumption of all of the Target Fund's
Liabilities.
Schedule A .................. Schedule A to this Plan, as it may be amended
from time to time.
Selling Fund Trust .......... Each WFA Fund Trust and Evergreen Fund Trust
that has a Target Fund as a series.
Shell Acquiring Fund ........ Each Acquiring Fund set forth in the "Shell
Reorganization Table" in Annex A.
Shell Reorganization ........ Each Reorganization set forth in the Shell
Reorganization Table in Annex A.
Target Class ................ The Target Fund share class set forth opposite
an Acquiring Class in Annex A.
Target Fund ................. Each Fund listed in the column entitled "Target
Fund" in Annex A.
Target Fund Financial
Statements .................. The audited financial statements of a Target
Fund for its most recently completed fiscal
year together with the unaudited financial
statements of the Target Fund for any
semi-annual period completed since the end of
the most recently completed fiscal year, in
each case to the extent available.
Valuation Time .............. With respect to each Reorganization, the last
time on the Closing Date, or such other time
and date as the parties may agree to in
writing, when a WFA Fund Trust determines the
net asset value of the shares of the Acquiring
Fund as set forth in the Acquiring Fund's
registration statement on Form N-1A. In the
event the New York Stock Exchange or another
primary trading market for portfolio securities
of the Acquiring Fund shall be closed to
trading, or trading thereon shall be restricted
or trading or the reporting of trading on the
New York Stock Exchange or other primary
trading market shall be disrupted so that
accurate appraisal of the value of the net
assets of the Acquiring Fund or any Target Fund
is impracticable, the Valuation Time shall be
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postponed until the first business day after
the day when trading shall have been fully
resumed and reporting shall have been restored.
In such event, the Effective Time shall
automatically be postponed so that it occurs on
the first business day after the Valuation
Time.
2. Regulatory Filings. For each Reorganization, the WFA Fund Trust
whose series is the Acquiring Fund shall prepare and file any required filings
including, without limitation, filings with state or foreign securities
regulatory authorities in connection with the Reorganization, and each Selling
Fund Trust whose series is a Corresponding Target Fund shall assist the WFA Fund
Trust in preparing any such required filings.
3. Transfer of Target Fund Assets. Each Selling Fund Trust, with
respect to each of its series that is a Target Fund, and each WFA Fund Trust,
with respect to each of its series that is an Acquiring Fund, shall take the
following steps with respect to each Reorganization involving that Target Fund
or Acquiring Fund:
(a) Within a reasonable time prior to the Closing Date, the Target
Fund shall provide, if requested, its Assets List to its Corresponding Acquiring
Fund. The Target Fund may sell any investment on the Assets List prior to the
Valuation Time. After the Target Fund provides the Assets List, the Target Fund
will notify its Corresponding Acquiring Fund of its purchase or incurrence of
additional investments or of any additional encumbrances, rights, restrictions
or claims not reflected on the Assets List, within a reasonable time period
after such purchase or incurrence. Within a reasonable time after receipt of the
Assets List and prior to the Closing Date, the Corresponding Acquiring Fund will
advise the Target Fund in writing of any investments shown on the Assets List
that the Corresponding Acquiring Fund has reasonably determined to be
impermissible or inconsistent with the investment objective, policies and
restrictions of the Corresponding Acquiring Fund.
(b) The Selling Fund Trust shall assign, transfer, deliver and convey
the Target Fund's Assets to its Corresponding Acquiring Fund at the
Reorganization's Effective Time. In exchange for the transfer of the Assets,
the Corresponding Acquiring Fund shall simultaneously assume the Target Fund's
Liabilities and issue and deliver to the Target Fund full and fractional shares
of beneficial interest of each Acquiring Class. The Corresponding Acquiring
Fund shall determine the number of shares of each Acquiring Class to issue by
dividing the value of the Assets net of Liabilities attributable to its
Corresponding Target Class by the net asset value of one Acquiring Class share.
Based on this calculation, the Corresponding Acquiring Fund shall issue
shares of beneficial interest of each Acquiring Class with an aggregate net
asset value equal to the value of the Assets net of Liabilities of the
Corresponding Target Class. The Corresponding Acquiring Fund shall then accept
the Target Fund's Assets and assume the Target Fund's Liabilities such that
at and after the Effective Time (i) all of the Target Fund's Assets shall
become and be Assets of its Corresponding Acquiring Fund and (ii)
all of the Target Fund's Liabilities at the Effective Time shall attach to
the Corresponding Acquiring Fund, and be enforceable against the Corresponding
Acquiring Fund to the same extent as if initially incurred by the
Corresponding Acquiring Fund.
5
(c) The parties shall determine the net asset value of the Acquiring
Fund shares to be delivered, and the value of the Assets to be conveyed net of
Liabilities, as of the Valuation Time in accordance with the applicable WFA Fund
Trust's current valuation procedures as described in the then-current prospectus
or prospectuses or statement or statements of additional information of the
Acquiring Fund. For money market funds, the net asset value of the Acquiring
Fund shares to be delivered, and the value of the Assets to be conveyed net of
Liabilities, will be calculated using the amortized cost valuation procedures
approved by the Board of the WFA Fund Trust, as described in the then-current
prospectus or prospectuses or statement or statements of additional information
of the Acquiring Fund. The parties shall make all computations to the fourth
decimal place or such other decimal place as the parties may agree to in
writing.
(d) The Selling Fund Trust shall cause its custodian to transfer the
Target Fund's Assets with good and marketable title to the account of its
Corresponding Acquiring Fund. The Selling Fund Trust shall also cause its
custodian to transfer all cash in the form of immediately available funds.
In addition, the Selling Fund Trust shall cause its custodian to transfer any
Assets that were not transferred to the Acquiring Fund's account at the
Effective Time to the Acquiring Fund's account at the earliest practicable
date thereafter.
4. Liquidation and Termination of Target Funds, Registration of Shares
and Access to Records. Each Selling Fund Trust, with respect to each of its
series that is a Target Fund, and each WFA Fund Trust, with respect to each of
its series that is an Acquiring Fund, shall take the following steps with
respect to each Reorganization involving that Target Fund or Acquiring Fund:
(a) At or as soon as is reasonably practical after the Effective Time,
the Selling Fund Trust shall distribute to shareholders of record of each Target
Class the shares of beneficial interest of its Corresponding Acquiring Class pro
rata on the basis of the shares of the Target Class owned by such shareholders.
Each shareholder also shall have the right to receive, at or as soon as
practicable after the Effective Time, any unpaid dividends or other
distributions that the Selling Fund Trust may have declared with respect to the
Target Class shares. The WFA Fund Trust shall record on its books the ownership
by the Target Fund shareholders of the Corresponding Acquiring Fund shares. The
WFA Fund Trusts do not issue certificates representing the Acquiring Fund
shares, and shall not be responsible for issuing certificates to shareholders of
the Target Funds. The Selling Fund Trust shall wind up the affairs of the Target
Fund and shall take all steps as are necessary and proper to dissolve, liquidate
and terminate the Target Fund and the Selling Fund Trust (to the extent it is an
Evergreen Fund Trust) in accordance with applicable law and regulations and its
Declaration of Trust and By-Laws, as soon as is reasonably practicable after the
Effective Time.
(b) At and after the Closing Date, the Selling Fund Trust, with
respect to the Target Fund, shall provide the applicable WFA Fund Trust, with
respect to the Corresponding Acquiring Fund, and its transfer agent with
immediate access to: (i) all of its records containing the names, addresses
and taxpayer identification numbers of all of the Target Fund's shareholders
and the number and percentage ownership of the outstanding shares of the Target
Class owned by each shareholder immediately prior to the Effective Time; and
(ii) all original documentation (including all applicable Internal Revenue
Service forms, certificates,
6
certifications and correspondence) in the possession or control of the Selling
Fund Trust relating to the Target Fund shareholders' taxpayer identification
numbers and their liability for or exemption from back-up withholding. Any
payments made to service providers in connection with such direction shall be
borne by both Xxxxx Fargo Funds Management and EIMC pursuant to Section 17 of
this Plan. As soon as practicable following the Reorganization, the Selling Fund
Trust shall deliver all books and records with respect to the Target Fund in its
possession or control, including books and records showing the ownership of all
of the issued and outstanding shares of each Target Class, to the WFA Fund
Trust, and the WFA Fund Trust shall thereafter have the responsibility to
preserve and maintain, or to cause its service providers to preserve and
maintain, all such records received by it in accordance with Section 31 of, and
Rule 31a-1 and 31a-2 under, the 1940 Act.
5. Representations, Warranties and Agreements of a Selling Fund Trust.
Each Selling Fund Trust, for itself and with respect to each of its series that
is a Target Fund, separately and not jointly, represents and warrants to, and
agrees with, the applicable WFA Fund Trust in any Reorganization involving such
Target Fund, as follows:
(a) The Selling Fund Trust is a statutory trust, duly created, validly
existing and in good standing under the laws of the State of Delaware. The Board
of the Selling Fund Trust duly established and designated the Target Fund as a
series of the Selling Fund Trust and each Target Class as a class of the Target
Fund. The Selling Fund Trust is an open-end management investment company
registered with the SEC under the 1940 Act, and such registration is in full
force and effect.
(b) The Selling Fund Trust has the power and all necessary federal,
state and local qualifications and authorizations to own all of its properties
and Assets, to carry on its business as now being conducted and as described in
its currently effective registration statement on Form N-1A as filed with the
SEC, to enter into this Plan and to consummate the transactions
contemplated herein.
(c) The Board of the Selling Fund Trust has duly authorized the
execution and delivery of this Plan and approved the performance of the
transactions contemplated herein. Duly authorized officers of the Selling Fund
Trust have executed and delivered this Plan. This Plan represents a valid
and binding obligation of the Selling Fund Trust with respect to the Target
Fund, enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, arrangement, moratorium and other
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles. The execution and delivery of this Plan do
not, and the consummation of the transactions contemplated by this Plan will
not, violate any law or regulation applicable to the Selling Fund Trust, the
Declaration of Trust or By-Laws of the Selling Fund Trust or any agreement,
indenture, instrument, contract or other undertaking to which the Selling Fund
Trust is a party or by which it is bound. No consent, approval, authorization or
order of any court or governmental authority is required for the consummation by
the Selling Fund Trust of the transactions contemplated by this Plan, except
such as may be required under the 1933 Act, the 1934 Act, the 1940 Act, and
insurance, securities or blue sky laws of any U.S. state or the District of
Columbia or Puerto Rico.
7
(d) The Target Fund has qualified and met the requirements for
treatment as a "regulated investment company" under Part I of Subchapter M of
Subtitle A, Chapter 1, of the Code in respect of each taxable year since the
commencement of its operations, and will continue to so qualify until the
Effective Time and has computed (or will compute) its federal income tax
liability, if any, under Sections 852 and 4982 of the Code.
(e) The Selling Fund Trust has duly authorized and validly issued all
of the issued and outstanding shares of the Target Fund and all of those shares
are, and on the Closing Date will be, validly outstanding, fully paid and
non-assessable, and were and will have been offered for sale and sold in
conformity, in all material respects, with the registration or qualification
requirements of all applicable federal and state securities laws. There are, and
will be as of the Closing Date, no outstanding options, warrants or other rights
to subscribe for or purchase any Target Fund shares, nor are there outstanding
any securities convertible into Target Fund shares.
(f) The Selling Fund Trust with respect to the Target Fund is, and at
the Effective Time will be, in compliance in all material respects with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, the 1933 Act, the 1934 Act and all applicable state securities laws, and
from the date of this Plan through the Closing Date will comply in all material
respects with all newly adopted rules and regulations under the 1940 Act on or
before their compliance dates. The Selling Fund Trust with respect to the Target
Fund is in compliance in all material respects with the investment policies and
restrictions applicable to it set forth in the registration statement on Form
N-1A as currently in effect in respect of it. The value of the net assets of the
Target Fund is determined using portfolio valuation methods that comply in all
material respects with the requirements of the 1940 Act and the policies of such
Target Fund, except as has been disclosed to its Corresponding Acquiring Fund.
(g) Except as otherwise provided herein, the Selling Fund Trust shall
operate the business of the Target Fund in the ordinary course between the date
hereof and the Effective Time, it being agreed that such ordinary course of
business will include, without limitation: (i) the declaration and payment of
dividends and distributions pursuant to standard dividend and distribution
policies approved by such Target Fund's Board prior to the date of this Plan or
otherwise in the ordinary course of business, (ii) the declaration and payment
of any other dividends and distributions deemed advisable by the Target Fund
after consultation with its Corresponding Acquiring Fund in anticipation of the
Reorganization, including the declaration and payment of dividends necessary to
avoid a fund-level tax for the taxable year ending on the Closing Date and, as
applicable, any prior taxable year in respect of which such Target Fund is
eligible as of the Closing Date to declare a "spillback" dividend under Section
855 of the Code, and (iii) the taking of any other commercially reasonable
action in anticipation of the Reorganization (and obtaining such additional "run
off" insurance coverage as the Selling Fund Trust's Board may approve, and
selling assets for purposes of recognizing taxable gains to offset tax-loss
carryforwards).
(h) At the Effective Time, the Selling Fund Trust with respect to the
Target Fund will have good and marketable title to its Assets and full right,
power and authority to assign, transfer, deliver and convey such Assets.
8
(i) The Target Fund Financial Statements fairly present the financial
position of the Target Fund as of the date indicated. The Target Fund Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently applied.
(j) To the knowledge of the Selling Fund Trust, except as has been
disclosed to its Corresponding Acquiring Fund, the Target Fund has no material
Liabilities, whether or not determined or determinable, other than: 1)
Liabilities disclosed or provided for in the Target Fund Financial Statements;
and 2) Liabilities incurred in the ordinary course of business subsequent to the
Target Fund Financial Statements. The Target Fund does not have any Liabilities
to any service provider of the Selling Fund Trust for fees previously waived or
deferred by such service provider.
(k) Except as has been disclosed to its Corresponding Acquiring Fund:
(i) the Selling Fund Trust does not know of any claims, actions, suits,
inquiries, investigations or proceedings of any type pending or threatened
against the Selling Fund Trust in respect of the Target Fund, the Target Fund
or their Assets or businesses, or against any investment adviser or principal
underwriter of the Target Fund relating to the services such adviser or
underwriter provides to the Target Fund; and (ii) the Selling Fund Trust does
not know of any facts that it currently has reason to believe are likely to
form the basis for the institution of any such claim, action, suit, inquiry,
investigation or proceeding against the Selling Fund Trust in respect of the
Target Fund, the Target Fund or their Assets or businesses, or against any
investment adviser or principal underwriter of the Target Fund relating to the
services such adviser or underwriter provides to the Target Fund. For purposes
of this provision, investment underperformance or negative investment
performance shall not be deemed to constitute such facts. Except as has been
disclosed to its Corresponding Acquiring Fund, the Target Fund is not a party to
or subject to the provisions of any order, decree or judgment of any court
or governmental body that adversely affects, or is reasonably likely to
adversely affect in a material manner, its financial condition, results of
operations, business, properties or Assets or the Target Fund's ability to
consummate the transactions contemplated by this Plan.
(l) All contracts and agreements other than an Evergreen Fund Trust's
Agreement and Declaration of Trust and Bylaws, each as amended, that are
material to the Target Fund's business and to which the Selling Fund Trust is a
party or by which it is bound, in each case, in respect of the Target Fund, are
listed on Schedule A. Except as has been disclosed to its Corresponding
Acquiring Fund, no material default has occurred and is continuing in respect of
the Target Fund under any such contract or agreement.
(m) The Selling Fund Trust has timely filed all tax returns in respect
of The Target Fund for all of its taxable years to and including its most recent
taxable year required to be filed on or before the date of this Plan, has paid
all taxes payable pursuant to such returns, and has made available to the
Corresponding Acquiring Fund all of the Target Fund's previously filed tax
returns. To the knowledge of the Selling Fund Trust, no such tax return has been
or is currently under audit, and no assessment has been asserted with respect to
any return. The Selling Fund Trust will file all of the Target Fund's tax
returns (and pay any taxes due thereon) for all of its taxable periods ending on
or before the Closing Date not previously filed on or before their due dates
(taking account of any valid extensions thereof).
9
(n) Since the date of the most recent Target Fund Financial
Statements, there has been no material adverse change in the financial
condition, business, properties or Assets of the Target Fund. For purposes of
this provision, the effects of investment underperformance, negative investment
performance or net redemptions shall not, individually or in the aggregate, be
deemed to give rise to any such change.
(o) The current prospectus and statement of additional information,
each as supplemented, of the Target Fund conform in all material respects to the
applicable requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the SEC thereunder and do not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(p) Any information provided in writing by the Selling Fund Trust in
respect of the Target Fund or by the Target Fund for use, to the extent
applicable, in a WFA Fund Trust's registration statement on Form N-14 relating
to the Reorganization (the "Registration Statement"), does not, and from the
date provided through and until the date of the shareholder meeting 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.
(q) The Target Fund shall issue and deliver or cause its custodian to
issue and deliver to the Secretary of the WFA Fund Trust a certificate
identifying the Assets of the Target Fund held by it as of the Valuation Time.
(r) Subject to the provisions of this Plan, the Target Fund will take,
or cause to be taken, all action, and do or cause to be done, all things
reasonably necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Plan, including any actions required to be
taken after the Closing Date.
6. Representations, Warranties and Agreements of a WFA Fund Trust. Each
WFA Fund Trust, for itself and with respect to each of its series that is an
Acquiring Fund, separately and not jointly, represents and warrants to, and
agrees with the applicable Selling Fund Trust in any Reorganization involving
such Acquiring Fund, as follows:
(a) The WFA Fund Trust is a statutory trust duly created, validly
existing and in good standing under the laws of the State of Delaware. The Board
of the WFA Fund Trust duly established and designated the Acquiring Fund as a
series of the WFA Fund Trust and each Acquiring Class as a class of the
Acquiring Fund. The WFA Fund Trust is an open-end management investment company
registered with the SEC under the 1940 Act, and such registration is in full
force and effect.
(b) The WFA Fund Trust has the power and all necessary federal, state
and local qualifications and authorizations to own all of its properties and
Assets, to carry on its business as now being conducted and as described in its
currently effective registration statement on Form N-1A as filed with the SEC,
to enter into this Plan and to consummate the transactions contemplated herein.
10
(c) The Board of the WFA Fund Trust has duly authorized the execution
and delivery of this Plan and approved the performance of the transactions
contemplated herein. Duly authorized officers of the WFA Fund Trust have
executed and delivered this Plan. This Plan represents a valid and binding
obligation of the WFA Fund Trust with respect to the Acquiring Fund, enforceable
in accordance with its terms, subject as to enforcement to bankruptcy,
insolvency, reorganization, arrangement, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles. The execution and delivery of this Plan do not, and the
consummation of the transactions contemplated by this Plan will not, violate any
law or regulation applicable to the WFA Fund Trust, the Declaration of Trust or
By-Laws of the WFA Fund Trust or any agreement, indenture, instrument, contract
or other undertaking to which the WFA Fund Trust is a party or by which it is
bound. No consent, approval, authorization or order of any court or governmental
authority is required for the consummation by the WFA Fund Trust of the
transactions contemplated by this Plan, except such as may be required under the
1933 Act, the 1934 Act, the 1940 Act, and insurance, securities or blue sky laws
of any U.S. state or the District of Columbia or Puerto Rico.
(d) The Acquiring Fund has qualified and met the requirements for
treatment as a "regulated investment company" under Part I of Subchapter M of
Subtitle A, Chapter 1, of the Code in respect of each taxable year since the
commencement of its operations, and will continue to so qualify until the
Effective Time and has computed (or will compute) its federal income tax
liability, if any, under Sections 852 and 4982 of the Code.
(e) If the Reorganization is a Shell Reorganization, the applicable
Acquiring Fund shall have no Assets or Liabilities as of the Closing Date, and
there shall be no issued and outstanding shares of such Acquiring Fund prior to
or at the Closing Date, other than those acquired, assumed or issued in order to
facilitate the commencement of the operations of such Acquiring Fund.
(f) The WFA Fund Trust has duly authorized and validly issued all of
the issued and outstanding shares of the Acquiring Fund and all of those shares
are, and on the Closing Date will be, validly outstanding, fully paid and
non-assessable, and were and will have been offered for sale and sold in
conformity, in all material respects, with the registration or qualification
requirements of all applicable federal and state securities laws. Before the
Closing Date, the WFA Fund Trust shall have duly authorized the shares of the
Acquiring Fund to be issued and delivered to the Target Fund as of the Effective
Time. When issued and delivered, the shares of the Acquiring Fund shall have
been registered for sale under the 1933 Act and qualified under all applicable
state securities laws and shall be duly and validly issued, fully paid and
non-assessable, and no shareholder of the Acquiring Fund shall have any
preemptive right of subscription or purchase in respect of them. There are, and
will be as of the Closing Date, no outstanding options, warrants or other rights
to subscribe for or purchase any Acquiring Fund shares, nor are there
outstanding any securities convertible into Acquiring Fund shares.
(g) The WFA Fund Trust with respect to the Acquiring Fund is, and at
the Effective Time will be, in compliance in all material respects with all
applicable laws, rules and
11
regulations, including, without limitation, the 1940 Act, the 1933 Act, the 1934
Act, and all applicable state securities laws, and from the date of this Plan
through the Closing Date will comply in all material respects with all newly
adopted rules and regulations under the 1940 Act on or before their compliance
dates. The WFA Fund Trust with respect to the Acquiring Fund is in compliance in
all material respects with the investment policies and restrictions applicable
to it set forth in the registration statement on Form N-1A as currently in
effect in respect of it. The value of the net assets of the Acquiring Fund is
determined using portfolio valuation methods that comply in all material
respects with the requirements of the 1940 Act and the policies of such
Acquiring Fund, except as has been disclosed to its Corresponding Target Fund.
(h) Except as otherwise provided herein, the WFA Fund Trust shall
operate the business of the Acquiring Fund in the ordinary course between the
date hereof and the Effective Time, it being agreed that such ordinary course of
business will include, without limitation: (i) the declaration and payment of
dividends and distributions pursuant to standard dividend and distribution
policies approved by such Acquiring Fund's Board prior to the date of this Plan,
(ii) the declaration and payment of any other dividends and distributions deemed
advisable by mutual agreement of such Acquiring Fund and its Corresponding
Target Fund in anticipation of the Reorganization, and (iii) the taking of any
other commercially reasonable action in anticipation of the Reorganization.
(i) The Acquiring Fund Financial Statements fairly present the
financial position of the Acquiring Fund as of the date indicated. The Acquiring
Fund Financial Statements have been prepared in accordance with generally
accepted accounting principles consistently applied.
(j) To the knowledge of the WFA Fund Trust, except as has been
disclosed to its Corresponding Target Fund, the Acquiring Fund has no material
Liabilities, whether or not determined or determinable, other than: 1)
Liabilities disclosed or provided for in the Acquiring Fund Financial
Statements, and 2) Liabilities incurred in the ordinary course of business
subsequent to the Acquiring Fund Financial Statements. The Acquiring Fund does
not have any Liabilities to any service provider of the WFA Fund Trust for fees
previously waived or deferred by such service provider.
(k) Except as has been disclosed to its Corresponding Target Fund, (i)
the WFA Fund Trust does not know of any claims, actions, suits, inquiries,
investigations or proceedings of any type pending or threatened against the WFA
Fund Trust in respect of the Acquiring Fund, the Acquiring Fund or their Assets
or businesses, or against any investment adviser or principal underwriter of the
Acquiring Fund relating to the services such adviser or underwriter provides to
the Acquiring Fund; and (ii) the WFA Fund Trust does not know of any facts that
it currently has reason to believe are likely to form the basis for the
institution of any such claim, action, suit, inquiry, investigation or
proceeding against the WFA Fund Trust in respect of the Acquiring Fund, the
Acquiring Fund or any investment adviser or principal underwriter of the
Acquiring Fund relating to the services such adviser or underwriter provides to
the Acquiring Fund. For purposes of this provision, investment underperformance
or negative investment performance shall not be deemed to constitute such facts.
Neither the WFA Fund Trust in respect of the Acquiring Fund, nor to its
knowledge, any investment adviser or principal
12
underwriter of the Acquiring Fund is a party to or subject to the provisions of
any order, decree or judgment of any court or governmental body that adversely
affects, or is reasonably likely to adversely affect in a material manner, its
financial condition, results of operations, business, properties or Assets or
the Acquiring Fund's ability to consummate the transactions contemplated by this
Plan.
(l) All contracts and agreements that are material to the Acquiring
Fund's business are listed on Schedule A. Except as has been disclosed to its
Corresponding Target Fund, no material default has occurred and is continuing in
respect of the Acquiring Fund under any such contract or agreement.
(m) The WFA Fund Trust has timely filed all tax returns in respect
of the Acquiring Fund for all of its taxable years to and including its most
recent taxable year required to be filed on or before the date of this Plan, has
paid all taxes payable pursuant to such returns and has made available to the
Corresponding Target Fund all of the Acquiring Fund's previously filed tax
returns. To the knowledge of the WFA Fund Trust, no such return is currently
under audit and no assessment has been asserted with respect to any return. The
WFA Fund Trust will file all of the Acquiring Fund's tax returns (and pay any
taxes due thereon) for all of its taxable periods ending on or before the
Closing Date not previously filed on or before their due dates (taking account
of any valid extensions thereof).
(n) Since the date of the most recent Acquiring Fund Financial
Statements, there has been no material adverse change in the financial
condition, business, properties or Assets of the Acquiring Fund. For purposes of
this provision, the effects of investment underperformance, negative investment
performance or net redemptions shall not, individually or in the aggregate be
deemed to give rise to any such change.
(o) The current prospectus and statement of additional information and
registration statement on Form N-1A of the Acquiring Fund conform in all
material respects to the applicable requirements of the 1933 Act and the 1940
Act and the rules and regulations of the SEC thereunder and do not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(p) To the extent applicable, as of the effective date of the WFA Fund
Trust's Registration Statement, the date of the meeting of shareholders of the
Target Fund relating to the Reorganization, and the Closing Date, the
Prospectus/Proxy Statement (the "Prospectus/Proxy Statement") which forms a part
of the Registration Statement and the Registration Statement insofar as it
relates to the applicable WFA Fund Trust in respect to the Acquiring Fund or the
Acquiring Fund itself, (i) 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 (ii) 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; provided however, that none of the
representations and warranties in this subsection shall apply to statements in
or omissions from the Registration Statement or the Prospectus/Proxy Statement
made in reliance upon and in conformity with
13
information furnished by the Target Fund to the Acquiring Fund in writing for
use in the Registration Statement or the Prospectus/Proxy Statement.
(q) At the Effective Time, the Acquiring Fund shall issue and deliver
or cause its transfer agent to issue and deliver to the Secretary of the Selling
Fund Trust a confirmation evidencing that the shares of the Acquiring Fund to be
credited at the Effective Time have been credited to the Corresponding Target
Fund's account on the books of the Acquiring Fund.
(r) Subject to the provisions of this Plan, the Acquiring Fund will
take, or cause to be taken, all action, and do or cause to be done, all things
reasonably necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Plan, including any actions required to be
taken after the Closing Date.
(s) Each Acquiring Fund Trust, on behalf of each Acquiring Fund,
agrees that any information regarding the Corresponding Target Fund that is
known, or reasonably should be known, by any of the Selling Fund Trust or the
Selling Fund Trust's investment adviser or any one or more of their officers,
employees or affiliates shall be deemed to have been disclosed to the
Acquiring Fund prior to the date of this Plan or the Valuation Time, whichever
is earlier.
7. Conditions to a Target Fund's Obligations. The obligations of the
Selling Fund Trust with respect to each of its series that is a Target Fund in a
Reorganization shall be subject to satisfaction of the following conditions
precedent, provided however, that Sections 7(e), 7(f) 7(p), 7(q) and 7(r) are
conditions precedent only with respect to Reorganizations involving Target Funds
that are series of an Evergreen Fund Trust:
(a) The shareholders of the Target Fund shall have approved the
Reorganization if and to the extent, and in the manner, required by the Selling
Fund Trust's Declaration of Trust or By-Laws and applicable law, or if
shareholder approval is otherwise sought by the Selling Fund Trust in respect of
the Target Fund. For clarity, the failure of any one Target Fund's shareholders
to satisfy this condition shall release the Selling Fund Trust of its obligation
under this Plan with respect to the Reorganization involving that Target Fund
but not with respect to any other Reorganization.
(b) This Plan and the transactions contemplated by it shall have been
approved by the affirmative vote of (i) at least a majority of the Board of the
WFA Fund Trust (including a majority of those Trustees who are not "interested
persons" of any party to this Plan, as defined in Section 2(a)(19) of the 0000
Xxx) and (ii) at least a majority of the Board of the Selling Fund Trust
(including a majority of those Trustees who are not "interested persons" of any
party to this Plan, as defined in Section 2(a)(19) of the 1940 Act). The WFA
Fund Trust shall have duly executed and delivered to the Target Fund its
Corresponding Acquiring Fund's Reorganization Documents.
(c) All representations and warranties of the WFA Fund Trust made in
this Plan that are not by their terms qualified as to materiality shall be true
and correct in all material respects, and all representations and warranties of
the WFA Fund Trust made in this Plan that by their terms are qualified as to
materiality are true and correct in all respects, in each case as if made at and
as of the Valuation Time and the Effective Time.
14
(d) The WFA Fund Trust shall have delivered to the Selling Fund Trust
a certificate dated as of the Closing Date and executed in its name by its
Secretary or Treasurer (or Assistant Secretary or Assistant Treasurer) stating:
1) that all representations and warranties of the WFA Fund Trust made in this
Plan that by their terms are not qualified as to materiality are true and
correct in all material respects, and all representations and warranties of the
WFA Fund Trust made in this Plan that by their terms are qualified as to
materiality are true and correct in all respects, in each case at and as of the
Valuation Time; 2) that the Target Fund's Assets are consistent with its
Corresponding Acquiring Fund's investment objectives, policies and restrictions
and that the Target Fund's Assets may be lawfully acquired by its Corresponding
Acquiring Fund and the Target Fund's Liabilities may be lawfully assumed by its
Corresponding Acquiring Fund; and 3) that the WFA Fund Trust with respect to the
Target Fund has complied with all of the agreements and covenants to be
performed or satisfied by it under this Plan in respect of the Acquiring Fund.
(e) The Selling Fund Trust shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., as special Delaware counsel to the WFA Fund Trust, in
form and substance reasonably satisfactory to the Selling Fund Trust and dated
as of the Closing Date, addressed to the Selling Fund Trust, with respect to the
Target Fund, to the effect that:
(1) The WFA Fund Trust has been duly formed and is validly
existing in good standing as a statutory trust under the Delaware Statutory
Trust Act, 12 Del. C. Section 3801, et seq. (the "Act"), and has the power
and authority under its Declaration of Trust and the Act to execute,
deliver and perform its obligations under this Plan. Under the Act and its
Declaration of Trust, the WFA Fund Trust has the requisite trust power and
authority to own all of its properties and conduct its business all as
described in its Declaration of Trust;
(2) The execution and delivery of this Plan and the consummation
by the WFA Fund Trust of the applicable transactions contemplated thereby
have been duly authorized by all requisite statutory trust action on the
part of the WFA Fund Trust under its Declaration of Trust and the Act.
Assuming execution and delivery by duly authorized officers of the WFA Fund
Trust, this Plan has been duly executed and delivered by the WFA Fund
Trust;
(3) The WFA Fund Trust has the power to execute, deliver and
perform its obligations under this Plan
(4) This Plan constitutes a legal, valid and binding agreement
of the WFA Fund Trust, enforceable against the WFA Fund Trust, in
accordance with its terms;
(5) The Acquiring Fund that is a series of the WFA Fund Trust
has been duly established as a separate series under the WFA Fund Trust's
Declaration of Trust and Section 3806(b)(2) of the Act;
15
(6) Each Acquiring Class of the Acquiring Fund has been duly
established as a class of beneficial interests of the Acquiring Fund under
the WFA Fund Trust's Declaration of Trust and Section 3806(b)
(1) of the Act;
(7) The shares of the Acquiring Fund to be delivered as provided
for by this Plan are duly authorized and upon delivery will be validly
issued, fully paid and, subject to any shareholder payments set forth in a
specified section of the WFA Fund Trust's Declaration of Trust, if any,
non-assessable beneficial interests in the Acquiring Fund, and under the
governing instruments of WFA Fund Trust, no shareholder of the Acquiring
Fund has any preemptive right or similar rights thereof;
(8) Neither the execution, delivery and performance by the WFA
Fund Trust of this Plan, nor the consummation by the WFA Fund Trust of
the applicable transactions contemplated thereby, violates (i) the
Declaration of Trust of the WFA Fund Trust or (ii) any law, rule, or
regulation of the State of Delaware applicable to the WFA Fund Trust; and
(9) Neither the execution, delivery and performance by the WFA
Fund Trust of this Plan, nor the consummation by such WFA Fund Trust of
any of the applicable transactions contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification with, or
the taking of any other action in respect of any governmental authority or
agency of the State of Delaware.
In rendering such opinion, such counsel may assume all conditions precedent set
forth in this Plan have been satisfied and such counsel may include other
customary assumptions and qualifications for opinions of this type, including
without limitation, customary enforceability assumptions (including the effect
of principles of equity, including principles of commercial reasonableness and
good faith and fair dealing) and that the Trustees of the WFA Fund Trust have
complied with their fiduciary duties in approving this Plan and that the
Reorganizations are fair in all respects. In addition, such counsel need not
express an opinion with respect to any provisions of this Plan that purport to
obligate the WFA Fund Trust to cause other persons or entities to take certain
actions or act in a certain way insofar as such opinion would relate to the
actions of such other persons or entities, any provisions of this Plan to the
extent that such provisions purport to bind the Trustees of the WFA Fund Trust
in the exercise of their fiduciary duties or to bind parties not a signatory to
this Plan and any provision of this Plan to the extent such provision relates to
the dissolution or liquidation of the WFA Fund Trust or series thereof.
(f) The Selling Fund Trust shall have received an opinion of Xxxxxxx
Procter LLP, as counsel to the WFA Fund Trust, in form and substance reasonably
satisfactory to the Selling Fund Trust and dated as of the Closing Date,
addressed to the Selling Fund Trust, with respect to the Target Fund that:
(1) The WFA Fund Trust is an open-end, management investment
company registered under the 1940 Act;
16
(2) The execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate any Material Agreement
or any law, rule or regulation to which the WFA Fund Trust is a party or
by which it is bound;
(3) 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
by the SEC and no proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act; and
(4) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the WFA Fund
Trust of the Reorganization, except those that have been obtained under the
1933 Act, the 1934 Act, the 1940 Act and the rules and regulations under
those acts, or that may be required under state securities or blue sky
laws.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and Delaware law, (iv) rely on certificates (reasonably acceptable to
the Selling Fund Trust) of officers or Trustees of the WFA Fund Trust, (v)
assume that each of this Plan and each Material Agreement is governed by the
laws of the State of Delaware or the Commonwealth of Massachusetts.
(g) The Selling Fund Trust shall have received an opinion, dated as of
the Closing Date, of Proskauer Rose LLP, upon which each Target Fund and its
shareholders may rely based upon factual representations required by Proskauer
Rose LLP made in certificates provided to Proskauer Rose LLP by the WFA Fund
Trust and Selling Fund Trust and in a form reasonably satisfactory to the
Selling Fund Trust substantially to the effect that, on the basis of existing
provisions of the Code, Treasury regulations promulgated thereunder, current
administrative rules, pronouncements and court decisions, for federal income tax
purposes, the Reorganization will constitute a "reorganization," within the
meaning of Section 368(a) of the Code.
(h) There shall not be in effect on the Closing Date any order,
judgment, injunction or other decree of any court of competent jurisdiction
restraining, enjoining, or otherwise prohibiting or making illegal the
consummation of the transactions contemplated by this Plan. No action, suit or
other proceeding shall be threatened or pending before any court or governmental
agency in which it is sought to restrain or prohibit or obtain damages or other
relief in connection with the Reorganization.
(i) If applicable, the Registration Statement shall have
become effective under the 1933 Act, and no stop order suspending the
effectiveness of the Registration Statement shall have been issued by the SEC
and, to the best knowledge of the parties hereto, no investigation or proceeding
for that purpose shall have been instituted or be pending, threatened or
contemplated under the 0000 Xxx. The SEC has not issued any unfavorable
advisory report
17
under Section 25(b) of the 1940 Act relating to, or instituted
any proceeding seeking to enjoin consummation of, the Reorganization under
Section 25(c) of the 1940 Act.
(j) The WFA Fund Trust shall have performed and complied in
all material respects with each of its agreements and covenants required by this
Plan to be performed or complied with by it prior to or at the Reorganization's
Valuation Time and Closing Date.
(k) The Selling Fund Trust shall have received from the WFA Fund
Trust a duly executed instrument reasonably acceptable to it whereby the
Acquiring Fund assumes its Corresponding Target Fund's Liabilities.
(l) Xxxxx Fargo Funds Management, EIMC and the Board of each
WFA Fund Trust and each Evergreen Fund Trust (collectively, the "Addressees")
shall have received a letter dated as of the effective date of the Registration
Statement from KPMG LLP ("KPMG") addressed to the Addressees with respect to
each Target Fund and each Acquiring Fund (that is not a Shell Acquiring Fund)
for which KPMG serves as the independent registered public accounting firm
in form and substance reasonably satisfactory to the Addressees, that, on the
basis of limited procedures reasonably agreed to by the Addressees and described
in such letter (but not an examination in accordance with generally accepted
auditing standards), describes KPMG's determinations as to whether:
(1) The unaudited pro forma financial statements and pro forma
adjustments included in the Registration Statement materially agree to the
underlying accounting records or with written estimates provided by the
Addressees in respect of the Target Fund and the Acquiring Fund;
(2) The data utilized in the calculations of the pro forma
expense ratios appearing in the Registration Statement materially agree to
the underlying accounting records or with written estimates provided by
the Addressees in respect of the Target Fund and the Acquiring Fund; and
(3) The pro forma capitalization tables appearing in the
Registration Statement agree to the information set forth in item (1) of
this Section 7(l) for the Target Fund and the Acquiring Fund.
(m) With respect to each Shell Reorganization, the Addressees shall
have received a letter dated as of the effective date of the Registration
Statement from KPMG addressed to them with respect to each Shell Acquiring Fund
and its Corresponding Target Fund for which KPMG serves as the independent
registered public accounting firm in form and substance reasonably satisfactory
to the Addressees, that, on the basis of limited procedures reasonably agreed to
by the Addressees and described in such letter (but not an examination in
accordance with generally accepted auditing standards), describes KPMG's
determinations as to whether:
(1) The data utilized in the calculations of the pro forma
expense ratios appearing in the Registration Statement materially agree
to the underlying accounting records or with written estimates provided
by the
18
Addressees in respect of the Shell Acquiring Fund and its
Corresponding Target Fund; and
(2) The pro forma capitalization tables appearing in the
Registration Statement materially agree to the underlying accounting
records or with written estimates provided by Xxxxx Fargo Funds Management
in respect of a Shell Acquiring Fund and EIMC in respect of its
Corresponding Target Fund.
(n) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
(o) The Selling Fund Trust shall have taken all steps required to
terminate any agreements with its service providers with respect to the Target
Fund and shall have discharged in the normal course of business any and all
payment obligations under such agreements prior to or simultaneously with the
Reorganization.
(p) In connection with its evaluation of qualified candidates and its
independent determination to nominate Xxxxxxx X. Xxxxxxxx and K. Dun Xxxxxxx to
the Board of each WFA Fund Trust and Xxxxx Fargo Master Trust ("WFA Master
Trust"), the Board of each WFA Fund Trust and WFA Master Trust shall have taken
all action necessary or appropriate to appoint and constitute such nominees duly
appointed members of the Board of each such Trust, their service as such to
become effective at the Effective Time of any Reorganization with a Closing Date
of July 9, 2010 as listed in Annex A, and such action shall be in full force and
effect. Simultaneously with the effectiveness of his appointment as a member of
the Board of a WFA Fund Trust or WFA Master Trust, each of Messrs. Xxxxxxxx and
Xxxxxxx shall resign his service as a member of the Board of all Evergreen Fund
Trusts that are open-end management investment companies (for the avoidance of
doubt, excluding Asset Allocation Trust).
(q) The Advisory Committee of the Trustees of the Legacy Evergreen
Funds shall have been duly established in accordance with the "Charter of the
Advisory Committee of the Trustees of the Legacy Evergreen Funds," and the
related letter agreement of Xxxxx Fargo Funds Management shall be in full force
and effect.
(r) Arrangements reasonably satisfactory to the Board of the Selling
Fund Trust shall have been implemented in respect of insurance; deferred
compensation; indemnity; pending or threatened litigation, actions, claims, or
proceedings of any kind in respect of any of the Evergreen Funds or any of their
Trustees or officers; and such other matters as the Board may reasonably
determine.
8. Conditions to an Acquiring Fund's Obligations. The obligations of
each WFA Fund Trust with respect to each of its series that is an Acquiring Fund
in a Reorganization shall be subject to satisfaction of the following conditions
precedent, provided however, that Sections 8(e) and 8(f) are conditions
precedent only with respect to Reorganizations involving Target Funds that are
series of an Evergreen Fund Trust:
(a) The shareholders of the Target Fund shall have approved the
Reorganization if and to the extent, and in the manner, required by the Selling
Fund Trust's Declaration of Trust or By-Laws and applicable law, or if
shareholder approval is otherwise
19
sought by the Selling Fund Trust in respect of the Target Fund. For clarity,
the failure of any one Target Fund's shareholders to satisfy this condition
shall release the WFA Fund Trust of its obligation under this Plan with respect
to the Reorganization involving that Target Fund but not with respect to any
other Reorganization.
(b) This Plan and the transactions contemplated by it shall have been
approved by the affirmative vote of (i) at least a majority of the Board of the
WFA Fund Trust (including a majority of those Trustees who are not "interested
persons" of any party to this Plan, as defined in Section 2(a)(19) of the 0000
Xxx) and (ii) at least a majority of the Board of the Selling Fund Trust
(including a majority of those Trustees who are not "interested persons" of any
party to this Plan, as defined in Section 2(a)(19) of the 1940 Act). The
Selling Fund Trust shall have duly executed and delivered to the Acquiring Fund
its Corresponding Target Fund's Reorganization Documents.
(c) All representations and warranties of the Selling Fund Trust made
in this Plan that are not by their terms qualified as to materiality shall be
true and correct in all material respects, and all representations and
warranties of the Selling Fund Trust made in this Plan that by their terms are
qualified as to materiality are true and correct in all respects, in each case
as if made at and as of the Valuation Time and the Effective Time.
(d) The Selling Fund Trust shall have delivered to the WFA Fund Trust
a certificate dated as of the Closing Date and executed in its name by its
Secretary or Treasurer (or Assistant Secretary or Assistant Treasurer) stating:
1) that all representations and warranties of the Selling Fund Trust made in
this Plan that by their terms are not qualified as to materiality are true and
correct in all material respects, and all representations and warranties of the
Selling Fund Trust in this Plan that by their terms are qualified as to
materiality are true and correct in all respects, in each case at and as of the
Valuation Time; and 2) that the Selling Fund Trust with respect to the Target
Fund has complied with all of the agreements and covenants to be performed or
satisfied by it under this Plan.
(e) The WFA Fund Trust shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., as special Delaware counsel to the Evergreen Fund Trust,
in form and substance reasonably satisfactory to the WFA Fund Trust and dated
as of the Closing Date, addressed to the WFA Fund Trust, with respect to the
Acquiring Fund, substantially to the effect that:
(1) The Evergreen Fund Trust has been duly formed and is validly
existing in good standing as a statutory trust under 12 Del. C. Section
3801, et seq. of the Act, and has the power and authority under its
Declaration of Trust and the Act to execute, deliver and perform its
obligations under this Plan. Under the Act and its Declaration of Trust,
the Evergreen Fund Trust has the requisite trust power and authority to own
all of its properties and conduct its business all as described in its
Declaration of Trust;
(2) Assuming that the shareholders of the Target Fund have duly
approved the Reorganization, the execution and delivery of this Plan and
the consummation by the Evergreen Fund Trust of the applicable transactions
contemplated thereby have been duly authorized by all requisite statutory
trust
20
action on the part of the Evergreen Fund Trust under its Declaration
of Trust and the Act. Assuming execution and delivery by duly authorized
officers of the Evergreen Fund Trust, this Plan has been duly executed and
delivered by the Evergreen Fund Trust;
(3) The Evergreen Fund Trust has the power to execute, deliver
and perform its obligations under this Plan;
(4) This Plan constitutes a legal, valid and binding agreement of
the Evergreen Fund Trust, enforceable against the Evergreen Fund Trust, in
accordance with its terms;
(5) The Target Fund that is a series of the Evergreen Fund Trust
has been duly established as a separate series under the Evergreen Fund
Trust's Declaration of Trust and Section 3806(b)(2) of the Act;
(6) Each Target Class of the Target Fund that is a series of the
Evergreen Fund Trust has been duly established as a class of beneficial
interests of the Target Fund under the Evergreen Fund Trust's Declaration
of Trust and Section 3806(b)(1) of the Act;
(7) Assuming that the shareholders of the Target Fund have duly
approved the Reorganization, neither the execution, delivery and
performance by the Evergreen Fund Trust of this Plan, nor the consummation
by the Evergreen Fund Trust of the applicable transactions contemplated
thereby, violates (i)the Declaration of Trust or By-Laws of the Evergreen
Fund Trust or (ii) any law, rule or regulation of the State of Delaware
applicable to the Evergreen Fund Trust; and
(8) Neither the execution, delivery and performance by Evergreen
Fund Trust of this Plan, nor the consummation by such Evergreen Fund Trust
of any of the applicable transactions contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification with, or the
taking of any other action in respect of, any governmental authority or
agency of the State of Delaware.
In rendering such opinion, such counsel may assume all conditions precedent set
forth in this Plan have been satisfied and such counsel may include other
customary assumptions and qualifications for opinions of this type, including
without limitation, customary enforceability assumptions (including the effect
of principles of equity, including principles of commercial reasonableness and
good faith and fair dealing) and that that the Trustees of the Evergreen Fund
Trust have complied with their fiduciary duties in approving this Plan and that
the Reorganizations are fair in all respects. In addition, such counsel need
not express an opinion with respect to any provisions of this Plan that purport
to obligate the Evergreen Fund Trust to cause other persons or entities to take
certain actions or act in a certain way insofar as such opinion would relate to
the actions of such other persons or entities, any provisions of this Plan to
the extent that such provisions purport to bind the Trustees of the Evergreen
Fund Trust in the exercise of their fiduciary duties or to bind parties not a
signatory to this Plan and any provision
21
of this Plan to the extent such provision relates to the dissolution or
liquidation of the Evergreen Fund Trust or series thereof.
(f) The WFA Fund Trust shall have received an opinion of Ropes & Xxxx
LLP, as counsel to the Evergreen Fund Trust, in form and substance reasonably
satisfactory to the WFA Fund Trust and dated as of the Closing Date, addressed
to the WFA Fund Trust, with respect to the Acquiring Fund, substantially to the
effect that:
(1) The Evergreen Fund Trust is an open-end, management
investment company registered under the 1940 Act;
(2) The execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate any Material Agreement
or any law, rule or regulation to which the Evergreen Fund Trust is a party
or by which it is bound; and
(3) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Evergreen
Fund Trust of the Reorganization, except those that have been obtained
under the 1933 Act, the 1934 Act, the 1940 Act and the rules and
regulations under those acts, or that may be required under state
securities or blue sky laws, or the HSR Act.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and Massachusetts law, (iv) rely on certificates (reasonably acceptable
to the WFA Fund Trust) of officers or Trustees of the Evergreen Fund Trust, and
(v) assume that each Material Agreement is governed by the laws of the
Commonwealth of Massachusetts.
(g) The WFA Fund Trust shall have received an opinion, dated as of the
Closing Date, of Proskauer Rose LLP, upon which each Acquiring Fund and its
shareholders may rely, based upon factual representations required by Proskauer
Rose LLP made in certificates provided to Proskauer Rose LLP by the WFA Fund
Trust and the Selling Fund Trust and in a form reasonably satisfactory to the
WFA Fund Trust substantially to the effect that, on the basis of existing
provisions of the Code, Treasury regulations promulgated thereunder, current
administrative rules, pronouncements and court decisions, for federal income tax
purposes, the Reorganization will constitute a "reorganization," within the
meaning of Section 368(a) of the Code.
(h) There shall not be in effect on the Closing Date any order,
judgment, injunction or other decree of any court of competent jurisdiction
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of the transactions contemplated by this Plan. No action, suit or
other proceeding shall be threatened or pending before any court or governmental
agency in which it is sought to restrain or prohibit or obtain damages or other
relief in connection with the Reorganization.
22
(i) If applicable, the Registration Statement shall have become
effective under the 1933 Act, and no stop order suspending the effectiveness of
the Registration Statement shall have been issued by the SEC and, to the best
knowledge of the parties hereto, no investigation or proceeding for that purpose
shall have been instituted or be pending, threatened or contemplated under the
0000 Xxx. The SEC has not issued any unfavorable advisory report under Section
25(b) of the 1940 Act relating to, or instituted any proceeding seeking to
enjoin consummation of, the Reorganization under Section 25(c) of the 1940 Act.
(j) The Selling Fund Trust shall have performed and complied in all
material respects with each of its agreements and covenants required by this
Plan to be performed or complied with by it prior to or at the Reorganization's
Valuation Time and Closing Date.
(k) The Addressees shall have received a letter dated as of the
effective date of the Registration Statement from KPMG addressed to the
Addressees with respect to each Target Fund and each Acquiring Fund (that is not
a Shell Acquiring Fund) for which KPMG serves as the independent registered
public accounting firm in form and substance reasonably satisfactory to the
Addressees, that, on the basis of limited procedures reasonably agreed to by the
Addressees and described in such letter (but not an examination in accordance
with generally accepted auditing standards), describes KPMG's determinations as
to whether:
(1) The unaudited pro forma financial statements and pro forma
adjustments included in the Registration Statement materially agree to the
underlying accounting records or with written estimates provided by the
Addressees in respect of the Target Fund and the Acquiring Fund;
(2) The data utilized in the calculations of the pro forma
expense ratios appearing in the Registration Statement materially agree to
the underlying accounting records or with written estimates provided by the
Addressees in respect of the Target Fund and the Acquiring Fund; and
(3) The pro forma capitalization tables appearing in the
Registration Statement agree to the information set forth in item (1) of
this Section 8(k) for the Target Fund and the Acquiring Fund.
(l) With respect to each Shell Reorganization, the Addressees shall
have received a letter dated as of the effective date of the Registration
Statement from KPMG addressed to them with respect to each Shell Acquiring Fund
and its Corresponding Target Fund for which KPMG serves as the independent
registered public accounting firm in form and substance reasonably satisfactory
to the Addressees, that, on the basis of limited procedures reasonably agreed to
by the Addressees and described in such letter (but not an examination in
accordance with generally accepted auditing standards), describes KPMG's
determinations as to whether:
(1) The data utilized in the calculations of the pro forma
expense ratios appearing in the Registration Statement materially agree to
the underlying accounting records or with written estimates provided by the
23
Addressees in respect of the Shell Acquiring Fund and its Corresponding
Target Fund; and
(2) The pro forma capitalization tables appearing in the
Registration Statement materially agree to the underlying accounting
records or with written estimates provided by Xxxxx Fargo Funds Management
in respect of a Shell Acquiring Fund and EIMC in respect of its
Corresponding Target Fund.
(m) Except to the extent prohibited by law, and unless, in the
opinion of Proskauer Rose LLP, a Target Fund's Reorganization constitutes a
"reorganization" within the meaning of Section 368(a)(1)(F) of the Code prior
to the Valuation Time, each Target Fund shall have declared a dividend or
dividends, with a record date and ex-dividend date prior to the Valuation Time,
which, together with all previous dividends, shall have the effect of
distributing to the Target Fund shareholders, with respect to taxable periods
or years ending on or before the Effective Time for which the Target Fund is
eligible to take a deduction for dividends paid, all of its previously
undistributed (i) "investment company taxable income" within the meaning of
Section 852(b) of the Code (determined without regard to Section 852(b)(2)(D)
of the Code), (ii) amounts constituting the excess of (A) the amount specified
in Section 852(a)(1)(B)(i) of the Code over (B) the amount specified in Section
852(a)(1)(B)(ii) of the Code, and (iii) net capital gain (within the meaning of
Section 1222(11) of the Code), if any.
(n) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
(o) The Selling Fund Trust shall have taken all steps required to
terminate any agreements with its service providers with respect to the Target
Fund and shall have discharged in the normal course of business any and all
payment obligations under such agreements prior to or simultaneously with the
Reorganization.
(p) The Selling Fund Trust shall have delivered to the WFA Fund Trust,
or shall have made provision for delivery as promptly as practicable after the
Effective Time of, a statement, accurate and complete in all material respects,
of (i) Assets of the Target Fund, showing the tax basis of such Assets for
federal income tax purposes by lot and the holding periods of such Assets for
such purposes, as of the Valuation Time; (ii) the capital loss carryforwards for
each Target Fund for federal income tax purposes and the taxable year(s) of the
Target Fund (or its predecessors) in which such capital losses were recognized;
(iii) any limitations on the use of such losses imposed under Section 382 of the
Code (determined without regard to the transactions contemplated by this Plan);
(iv) any unrealized gain or loss in such Assets (as determined as of the
Valuation Time) for federal income tax purposes; (v) the tax books and records
of each Target Fund for preparing any tax returns required by law to be filed
after the Closing Date; and (vi) such other tax information reasonably requested
by the WFA Fund Trust.
9. Tax Matters. Except where otherwise required by law, the parties
shall not take a position on any tax returns inconsistent with the treatment of
each Reorganization for tax purposes as a "reorganization," within the meaning
of Section 368(a) of the Code and each Acquiring Fund and the Corresponding
Target Fund will comply with the record keeping and
24
information filing requirements of Section 1.368-3 of the Treasury Regulation
in accordance therewith.
10. Termination of Plan. The Board of either a Selling Fund Trust or a WFA
Fund Trust, as the case may be, may terminate this Plan with respect to any
Reorganization, by majority vote, upon notice to the other party, if: (i) the
conditions precedent set forth in Sections 7 or 8, as the case may be, are not
satisfied on the Closing Date; (ii) it becomes reasonably apparent to such Board
that such conditions precedent will not be satisfied by the Effective Time; or
(iii) it determines that the consummation of the Reorganization is not in the
best interests of the shareholders of any of its participating Funds. The
termination of this Plan with respect to any Reorganization shall not affect the
continued effectiveness of this Plan with respect to any other Reorganization.
No Trust or Fund or any Trustee, officer, or agent of any thereof shall incur
any liability or other obligation, by way of damages or otherwise, for any
determination by its Board not to consummate any Reorganization for any reason
or for any breach of any provision of this Agreement that results in such
Reorganization not being consummated.
11. Governing Law. This Plan and the transactions contemplated hereby shall
be governed, construed and enforced in accordance with the laws of the State of
Delaware, except to the extent preempted by federal law, without regard to
conflicts of law principles.
12. Amendments. The parties may, by written agreement, amend this Plan or
any annex or schedule to this Plan with respect to any Reorganization at any
time, including, with respect to any Target Fund whose shareholders are being
asked to approve the Reorganization, before or after such Target Fund's
shareholders approve of the Reorganization; provided, however, that, after
approval of this Plan by shareholders of the Target Fund, the parties may not
amend this Plan in a manner that the Board of the Selling Fund Trust determines
materially adversely affects the interests of the Target Fund's shareholders
with respect to that Reorganization. This section shall not preclude the parties
from changing the Valuation Time, Closing Date or the Effective Time of a
Reorganization.
13. Waivers. At any time prior to the Effective Time, a WFA Fund Trust
or a Selling Fund Trust may by written instrument signed by it (i) waive the
effect of any inaccuracies in the representations and warranties made to it
herein or (ii) waive compliance with any of the agreements, covenants or
conditions made for its benefit contained herein. Each WFA Fund Trust and
Selling Fund Trust agree that any waiver shall apply only to the particular
inaccuracy or requirement for compliance waived, and not any other or future
inaccuracy or lack of compliance.
14. Limitation on Liabilities. The obligations of a WFA Fund Trust or a
Selling Fund Trust shall not bind any of the Trustees, shareholders, nominees,
officers, agents, or employees of the WFA Fund Trust or the Selling Fund Trust
personally, but shall bind only the Assets and property of the particular Fund
in respect of which the obligations arise. The execution and delivery of this
Plan by the parties' officers shall not be 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 Assets and the property of the Acquiring Fund or the Target
Fund, as appropriate.
25
Each of the parties hereby acknowledges that use of this form of agreement,
governing multiple Reorganizations by various Funds, is for ease of
administration only, and it is hereby acknowledged and agreed that by executing
this Plan each WFA Fund Trust and each Selling Fund Trust shall be deemed to
have entered into and executed a separate agreement with respect to each of its
Funds separately with the other Fund(s) (and only such other Fund(s)) with which
this Plan contemplates it will enter into a Reorganization, Xxxxx Fargo Funds
Management, and EIMC, each such agreement containing terms and provisions
identical to those contained in this Plan, and without reference to any other
entity. Notwithstanding any other provision of this Plan, each Reorganization
shall for all purposes be and be deemed to be entered into between the entities
named on Annex A as parties to such Reorganization, Xxxxx Fargo Funds
Management, and EIMC, and no other person or entity, whether listed on Annex A
or not, shall have any obligation or incur any liability in respect of such
Reorganization. For clarity and without limiting the foregoing, where a series
of shares of a Trust is a party to a Reorganization, the obligations under this
Plan of such series (or of the Trust with respect to such series) in respect of
such Reorganization shall be those of such series alone, and shall not be
obligations of or binding on (or satisfied out of the assets of) the Trust
generally or any other series of the Trust.
15. Indemnification. Each WFA Fund Trust with respect to each of its
series that is an Acquiring Fund agrees to indemnify and hold harmless each of
the Corresponding Target Funds of an Evergreen Fund Trust, the Trustees of the
Evergreen Fund Trust of which it is a series, and the officers and agents of
such Evergreen Fund Trust (each, an "Indemnified Party" and collectively, the
"Indemnified Parties") against any and all losses, claims, damages, liabilities,
and reasonable expenses 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 action, suit, or other proceeding, whether civil,
administrative, regulatory, or criminal, before any court or administrative or
legislative body, 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 contained in the Registration Statement, the Prospectus/Proxy
Statement, the Acquiring Fund's prospectus or statement of additional
information, 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 Indemnified Parties in a compromise or settlement of
any such claim, action, suit, or proceeding, or threatened claim, action, suit,
or proceeding made with the consent of Acquiring Fund, such consent not to be
unreasonably withheld; unless such statement or omission was made based on and
in accordance with information furnished by the Indemnified Party in respect of
a Target Fund in writing (including by any electronic communication) for use in
the Registration Statement. An Indemnified Party will notify the Acquiring Fund
in writing within thirty days after the receipt by such Indemnified Party 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 15. Each WFA Fund
Trust with respect to each of its series that is an Acquiring Fund shall be
entitled to participate at its own expense in the defense of any action, suit,
or other proceeding covered by this Section 15, or, if it so elects, to assume
at its expense by counsel satisfactory to the Indemnified Parties in question
the defense of any such action, suit, or other proceeding, and, if the WFA Fund
Trust with respect to the Acquiring Fund elects to assume such defense, the
Indemnified Parties shall be entitled to participate in the defense of any such
action, suit, or other
26
proceeding at their own expense (except as provided below
in this paragraph). Notwithstanding the foregoing, counsel selected by an
Indemnified Party shall conduct the defense of such Indemnified Party to the
extent reasonably determined by such counsel to be necessary to protect the
interests of the Indemnified Party, and the WFA Fund Trust shall indemnify the
Indemnified Party for the expenses of such defense, if (1) the Indemnified Party
reasonably determines that there may be a conflict between the positions of the
Indemnified Party and the positions of any other Indemnified Party or other
parties to the action, suit or other proceeding that are indemnified by the WFA
Fund Trust or any of its affiliates and not represented by separate counsel, or
the Indemnified Party otherwise reasonably concludes that representation of both
the Indemnified Party and any such other Indemnified Parties or other parties by
the same counsel would not be appropriate, or (2) the action, suit or proceeding
involves the Indemnified Party, but not the WFA Fund Trust nor any such other
Indemnified Party or other party who is indemnified by the WFA Fund Trust or any
of its affiliates, and the Indemnified Party reasonably withholds consent to
being represented by counsel selected by the WFA Fund Trust. If the WFA Fund
Trust shall not have elected to assume the defense of any such action, suit or
proceeding for an Indemnified Party within thirty days after receiving written
notice thereof from the Indemnified Party, the WFA Fund Trust shall be deemed to
have waived any right it might otherwise have to assume such defense.
Each WFA Fund Trust's obligation with respect to any of its series that is an
Acquiring Fund under this Section 15 to indemnify and hold harmless the
Indemnified Parties constitutes a guarantee of payment so that the WFA Fund
Trust with respect to that Acquiring Fund will pay in the first instance any
losses, claims, damages, liabilities, and reasonable expenses required to be
paid by it under this Section 15 without the necessity of the Indemnified
Parties' first paying the same. Each WFA Fund Trust with respect to each of its
series that is an Acquiring Fund will promptly pay all expenses, including
without limitation accountants' and counsel fees, incurred by an Indemnified
Party from time to time in the defense or investigation of any action, suit, or
other proceeding, whether civil, administrative, regulatory, or criminal, before
any court or administrative or legislative body, upon demand by such Indemnified
Party in advance of the final disposition of any such action, suit, or other
proceeding; provided that the Indemnified Party shall have undertaken to repay
the amounts so paid to him or her if it is ultimately determined by a court of
competent jurisdiction upon a final, non-appealable adjudication that
indemnification of such expenses is not authorized under this Section 15. The
phrase "action, suit, or other proceeding, whether civil, administrative,
regulatory, or criminal, before any court or administrative or legislative
body," wherever used in this Section 15, includes without limitation any
threatened, pending, or completed claim, demand, threat, discovery request,
request for testimony or information, action, suit, arbitration, alternative
dispute mechanism, review, hearing, or any formal or informal inquiry, exam,
inspection, audit, or investigation, or any other proceeding, including any
appeal from any of the foregoing, whether civil, criminal, administrative,
regulatory, or investigative, and whether by or on behalf of any court, the SEC,
or any other federal, state, or other governmental, regulatory, or
administrative body, authority, or agency, or any self-regulatory organization,
of any kind.
Notwithstanding the foregoing, nothing contained within this section or
elsewhere in this Plan shall permit the payment of any indemnification of any
Indemnified Party in respect of any matter as to which (and then only to the
extent that) such Indemnified Party shall have been finally adjudicated in such
action, suit, or other proceeding (such adjudication not being subject
27
to appeal) to be liable to the Evergreen Fund in question or its shareholders by
reason of such Indemnified Party's willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of such
Indemnified Party's office.
16. Notices. Any notice, report, statement, certificate or demand required
or permitted by any provision of this Plan shall be in writing and shall be sent
by a reputable overnight express carrier, or by registered or certified mail,
postage prepaid, addressed as follows or to such other address of which the
parties may have given notice:
For each Evergreen Fund Trust with respect to any Target Fund of an Evergreen
Fund Trust:
Evergreen Investment Management Company
000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn.: Legal Department
With a copy (which will not constitute notice) sent at the same time and by the
same means to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
For each WFA Fund Trust with respect to any Acquiring Fund and any Target Fund
of a WFA Fund Trust:
Xxxxx X. Xxxxxxx, President
Xxxxx Fargo Funds Trust
Xxxxx Fargo Variable Trust
000 Xxxxxx Xxxxxx, 00(xx) Xxxxx
Xxx Xxxxxxxxx, XX 00000
With a copy (which will not constitute notice) sent at the same time and by the
same means to:
C. Xxxxx Xxxxxxx, Secretary
Xxxxx Fargo Funds Trust
Xxxxx Fargo Variable Trust
00 Xxxxxxx Xxxxxx, 00(xx) Xxxxx
Xxx Xxxxxxxxx, XX 00000
17. Expenses. EIMC and Xxxxx Fargo Funds Management hereby agree, jointly
and severally, to bear all expenses incurred by any party hereto that are not
otherwise borne by an affiliated person of EIMC or Xxxxx Fargo Funds Management
(which affiliated persons do not include any Fund of a WFA Fund Trust or an
Evergreen Fund Trust) in connection with the
28
Reorganization and with this Plan (other than any brokerage or other
transaction costs associated with the sale or purchase of portfolio securities
in connection with the Reorganization), whether or not the Reorganization is
consummated. Notwithstanding the foregoing, 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 Section 851
of the Code.
18. General. This Plan supersedes all prior agreements between the parties
(written or oral), is intended as a complete and exclusive statement of the
terms of the agreement between the parties and may not be changed or terminated
orally. The parties may execute this Plan in counterparts, which shall be
considered one and the same agreement and shall become effective when the
counterparts have been executed by and delivered to all the parties. The
headings contained in this Plan are for reference only and shall not affect in
any way the meaning or interpretation of this Plan. Nothing in this Plan,
expressed or implied, confers upon any other person any rights or remedies under
or by reason of this Plan. Neither party may assign or transfer any right or
obligation under this Plan without the written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers designated below to execute this Plan as of the date first written
above.
XXXXX FARGO FUNDS TRUST
XXXXX FARGO VARIABLE TRUST
for themselves and with respect to the Acquiring
Funds and the Target Funds that are their series as
listed in Annex A:
ATTEST:
By:
------------------------- -------------------------
Name: C. Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxxx
Title: Secretary Title: Treasurer
29
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers designated below to execute this Plan as of the date first written
above.
EVERGREEN FUND TRUST,
EVERGREEN EQUITY TRUST
EVERGREEN FIXED INCOME TRUST
EVERGREEN INTERNATIONAL TRUST
EVERGREEN MONEY MARKET TRUST
EVERGREEN MUNICIPAL TRUST
EVERGREEN SELECT EQUITY TRUST
EVERGREEN SELECT FIXED INCOME TRUST
EVERGREEN SELECT MONEY MARKET TRUST
EVERGREEN VARIABLE ANNUITY TRUST
for themselves and with respect to the
Target Funds that are their series as
listed in Annex A:
ATTEST:
By:
----------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxx Name: W. Xxxxxxx Xxxx
Title: Secretary Title: President
30
XXXXX FARGO FUNDS MANAGEMENT, LLC
(a party to this Plan as to Section 17
only)
ATTEST:
By:
----------------------------------- ----------------------------------
Name: C. Xxxxx Xxxxxxx Name: Erdem Cimen
Title: Secretary Title: Senior Vice President
31
EVERGREEN INVESTMENT MANAGEMENT COMPANY,
LLC
(a party to this Plan as to Section 17
only)
ATTEST:
By:
----------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxx Name: W. Xxxxxxx Xxxx
Title: Secretary Title: Executive Managing Director
32
ANNEX A
ACTIVE REORGANIZATION TABLE
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
EVERGREEN FUNDAMENTAL MID CAP MID CAP DISCIPLINED FUND (TO BE July 16, 2010
VALUE FUND RENAMED SPECIAL MID CAP VALUE FUND)
Class A Class A
Class B Class A
Class C Class C
Class I Institutional Class
EVERGREEN MID CAP GROWTH FUND MID CAP GROWTH FUND July 16, 2010
Class A Class A
Class B Class B
Class C Class C
Class I Institutional Class
EVERGREEN INTERNATIONAL EQUITY INTERNATIONAL CORE FUND (TO BE RENAMED July 16, 2010
FUND INTERNATIONAL EQUITY FUND)
Class A Class A
Class B Class B
Class C Class C
Class I Institutional Class (new class)
Class R Class R (new class)
EVERGREEN SHORT-INTERMEDIATE SHORT-TERM MUNICIPAL BOND FUND July 9, 2010
MUNICIPAL BOND FUND
Class A Class A
Class B Class A
Class C Class C
Class I Class A
EVERGREEN INTERMEDIATE MUNICIPAL INTERMEDIATE TAX/AMT-FREE FUND July 9, 2010
BOND FUND
Class A Class A
Class B Class A
Class C Class C
Class I Administrator Class
Class IS Class A
33
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
EVERGREEN HIGH INCOME MUNICIPAL MUNICIPAL BOND FUND July 9, 2010
BOND FUND
Class A Class A
Class B Class B
Class C Class C
Class I Administrator Class
EVERGREEN MUNICIPAL BOND FUND MUNICIPAL BOND FUND July 9, 2010
Class A Class A
Class B Class B
Class C Class C
Class I Institutional Class
EVERGREEN CALIFORNIA MUNICIPAL CALIFORNIA TAX-FREE FUND July 9, 2010
BOND FUND
Class A Class A
Class B Class B
Class C Class C
Class I Administrator Class
WFA STRATEGIC INCOME FUND HIGH INCOME FUND July 9, 2010
Class A Class A
Class B Class B
Class C Class C
EVERGREEN CORE PLUS BOND FUND INCOME PLUS FUND July 9, 2010
Class A Class A
Class B Class B
Class C Class C
Class I Institutional Class
EVERGREEN U.S. GOVERNMENT FUND GOVERNMENT SECURITIES FUND July 9, 2010
Class A Class A
Class B Class B
Class C Class C
Class I Administrator Class
34
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
EVERGREEN MUNICIPAL MONEY MUNICIPAL MONEY MARKET FUND July 9, 2010
MARKET FUND
Class A Class A (new class)
Class I Service Class (new class)
Class S Sweep Class (new class)
EVERGREEN INSTITUTIONAL 100% 100% TREASURY MONEY MARKET FUND July 9, 2010
TREASURY MONEY MARKET FUND
Institutional Class Administrator Class (new class)
Institutional Service Class Service Class
EVERGREEN TREASURY MONEY TREASURY PLUS MONEY MARKET FUND July 9, 2010
MARKET FUND
Class A Class A
Class I Service Class
Class S Sweep Class (new class)
EVERGREEN INSTITUTIONAL TREASURY TREASURY PLUS MONEY MARKET FUND July 9, 2010
MONEY MARKET FUND
Administrative Class Institutional Class
Institutional Class Institutional Class
Institutional Service Class Service Class
Investor Class Institutional Class
Participant Service Class
EVERGREEN U.S. GOVERNMENT GOVERNMENT MONEY MARKET FUND July 9, 2010
MONEY MARKET FUND
Class A Class A
Class S Sweep Class (new class)
EVERGREEN INSTITUTIONAL U.S. GOVERNMENT MONEY MARKET FUND July 9, 2010
GOVERNMENT MONEY MARKET FUND
Institutional Class Institutional Class
Institutional Service Class Service Class
Investor Class Institutional Class
Participant Class Service Class
EVERGREEN PRIME CASH HERITAGE MONEY MARKET FUND July 9, 2010
MANAGEMENT MONEY MARKET FUND
Administrative Class Institutional Class
Institutional Class Institutional Class
Institutional Service Class Service Class (new class)
Investor Class Institutional Class
Participant Class Service Class (new class)
EVERGREEN INSTITUTIONAL MONEY HERITAGE MONEY MARKET FUND July 9, 2010
MARKET FUND
Administrative Class Institutional Class
Institutional Class Institutional Class
Institutional Services Class Service Class (new class)
Investor Class Institutional Class
Participant Class Service Class (new class)
EVERGREEN MONEY MARKET FUND MONEY MARKET FUND July 9, 2010
Class A Class A
Class B Class B
Class C Class C (new class)
35
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
Class I Service Class (new class)
Class S Daily Class (new class)
WFA OVERLAND EXPRESS SWEEP MONEY MARKET FUND July 9, 2010
Unnamed Class Daily Class (new class)
EVERGREEN VA CORE BOND FUND VT TOTAL RETURN BOND FUND July 16, 2010
Class 1 (will be liquidated) N/A
Class 2 Class 2 (formerly unnamed class)
EVERGREEN VA SPECIAL VALUES VT SMALL /MID CAP VALUE FUND (TO BE July 16, 2010
FUND RENAMED VT SMALL CAP VALUE FUND)
Class 1 Class 1 (new class)
Class 2 Class 2 (formerly unnamed class)
EVERGREEN VA GROWTH FUND VT SMALL CAP GROWTH FUND July 16, 2010
Class 1 Class 1 (new class)
Class 2 Class 2 (formerly unnamed class)
EVERGREEN VA INTERNATIONAL VT INTERNATIONAL CORE FUND (TO BE July 16, 2010
EQUITY FUND RENAMED VT INTERNATIONAL EQUITY FUND)
Class 1 Class 1 (new class)
Class 2 Class 2 (formerly unnamed class)
WFA DIVERSIFIED BOND FUND TOTAL RETURN BOND FUND July 9, 2010
Administrator Class Administrator Class
WFA AGGRESSIVE ALLOCATION FUND GROWTH BALANCED FUND July 16, 2010
Administrator Class Administrator Class
WFA GROWTH EQUITY FUND DIVERSIFIED EQUITY FUND July 16, 2010
Class A Class A
Class B Class B
Class C Class C
Administrator Class Administrator Class
Institutional Class Administrator Class
WFA LARGE CAP APPRECIATION FUND CAPITAL GROWTH FUND July 16, 2010
Class A Class A
Class B Class A
Class C Class C
Administrator Class Administrator Class
Institutional Class Institutional Class
WFA STABLE INCOME FUND ULTRA SHORT-TERM INCOME FUND July 9, 2010
Class A Class A
Class B Class A
Class C Class C
Administrator Class Administrator Class
EVERGREEN CALIFORNIA MUNICIPAL CALIFORNIA MUNICIPAL MONEY MARKET July 9, 2010
MONEY MARKET FUND FUND
Class A Class A
Class I Service Class
Class S Sweep Class (new class)
36
SHELL REORGANIZATION TABLE
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
EVERGREEN EQUITY INCOME FUND CLASSIC VALUE FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
Class R Class R (new class)
WFA SPECIALIZED FINANCIAL CLASSIC VALUE FUND (NEW SHELL) July 16, 2010
SERVICES FUND
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
EVERGREEN DISCIPLINED VALUE DISCIPLINED VALUE FUND (NEW SHELL) July 16, 2010
FUND
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
WFA EQUITY INCOME FUND DISCIPLINED VALUE FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Administrator Class Administrator Class (new class)
WFA U.S. VALUE FUND DISCIPLINED VALUE FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Administrator Class Administrator Class (new class)
Investor Class Investor Class (new class)
EVERGREEN GOLDEN LARGE CAP LARGE CAP CORE FUND (NEW SHELL) July 16, 2010
CORE FUND
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
WFA LARGE COMPANY CORE FUND LARGE CAP CORE FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Administrator Class Administrator Class (new class)
Investor Class Investor Class (new class)
Institutional Class Institutional Class (new class)
EVERGREEN LARGE COMPANY PREMIER LARGE COMPANY GROWTH FUND July 16, 2010
GROWTH FUND (NEW SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
37
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
WFA LARGE COMPANY GROWTH PREMIER LARGE COMPANY GROWTH FUND July 16, 2010
FUND (NEW SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Administrator Class Administrator Class (new class)
Investor Class Investor Class (new class)
Institutional Class Institutional Class (new class)
EVERGREEN SPECIAL VALUES FUND SPECIAL SMALL CAP VALUE FUND (NEW July 16, 2010
SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C(new class)
Class I Administrator Class (new class)
Class R Class A (new class)
EVERGREEN SMALL CAP VALUE FUND SPECIAL SMALL CAP VALUE FUND (NEW July 16, 2010
SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN EMERGING MARKETS EMERGING MARKETS EQUITY FUND II (NEW July 16, 2010
GROWTH FUND SHELL) (TO BE RENAMED EMERGING MARKETS
EQUITY FUND)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
WFA EMERGING MARKETS EQUITY EMERGING MARKETS EQUITY FUND II (NEW July 16, 2010
FUND SHELL) (TO BE RENAMED EMERGING MARKETS
EQUITY FUND)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Administrator Class Administrator Class (new class)
EVERGREEN VA OMEGA FUND VT OMEGA GROWTH FUND (NEW SHELL) July 16, 2010
Class 1 Class 1 (new class)
Class 2 Class 2 (new class)
WFA VT LARGE COMPANY VT OMEGA GROWTH FUND (NEW SHELL) July 16, 2010
GROWTH FUND
Unnamed share class/ Class 2 (new class)
Class 2
EVERGREEN VA FUNDAMENTAL VT CORE EQUITY FUND (NEW SHELL) July 16, 2010
LARGE CAP FUND
Class 1 Class 1 (new class)
Class 2 Class 2 (new class)
WFA VT LARGE COMPANY CORE VT CORE EQUITY FUND (NEW SHELL) July 16, 2010
FUND
Unnamed share class/ Class 2 (new class)
Class 2
38
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
WFA VT EQUITY INCOME FUND VT INTRINSIC VALUE FUND (NEW SHELL) July 16, 2010
Unnamed share class/ Class 2 (new class)
Class 2
WFA VT C&B LARGE CAP VALUE VT INTRINSIC VALUE (NEW SHELL) July 16, 2010
Unnamed Class/Class 2 Class 2 (new class)
EVERGREEN INTRINSIC VALUE FUND INTRINSIC VALUE FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
EVERGREEN ENHANCED S&P 500 DISCIPLINED U.S. CORE FUND (NEW SHELL) July 16, 2010
FUND
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
Class IS Class A (new class)
EVERGREEN FUNDAMENTAL LARGE CORE EQUITY FUND (NEW SHELL) July 16, 2010
CAP FUND
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN OMEGA FUND OMEGA GROWTH FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
Class R Class R (new class)
EVERGREEN GOLDEN CORE SMALL/MID CAP CORE FUND (NEW SHELL) July 16, 2010
OPPORTUNITIES FUND
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN GLOBAL LARGE CAP DISCIPLINED GLOBAL EQUITY FUND (NEW July 16, 2010
EQUITY FUND SHELL)
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN GLOBAL OPPORTUNITIES GLOBAL OPPORTUNITIES FUND (NEW SHELL) July 16, 2010
FUND
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN INTRINSIC WORLD INTRINSIC WORLD EQUITY FUND (NEW SHELL) July 16, 2010
EQUITY FUND
39
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN STRATEGIC MUNICIPAL STRATEGIC MUNICIPAL BOND FUND (NEW July 9, 2010
BOND FUND SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN NORTH CAROLINA NORTH CAROLINA TAX-FREE FUND (NEW July 9, 2010
MUNICIPAL BOND FUND SHELL)
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
EVERGREEN PENNSYLVANIA PENNSYLVANIA TAX-FREE FUND (NEW SHELL) July 9, 2010
MUNICIPAL BOND FUND
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
EVERGREEN ADJUSTABLE RATE FUND ADJUSTABLE RATE GOVERNMENT FUND (NEW July 9, 2010
SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
Class IS Class A (new class)
EVERGREEN INTERNATIONAL BOND INTERNATIONAL BOND FUND (NEW SHELL) July 9, 2010
FUND
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
Class IS Class A (new class)
EVERGREEN NEW JERSEY MUNICIPAL NEW JERSEY MUNICIPAL MONEY MARKET July 9, 2010
MONEY MARKET FUND FUND (NEW SHELL)
Class A Class A (new class)
Class I Service Class (new class)
Class S Sweep Class (new class)
EVERGREEN NEW YORK MUNICIPAL NEW YORK MUNICIPAL MONEY MARKET July 9, 2010
MONEY MARKET FUND FUND (NEW SHELL)
Class A Class A (new class)
Class I Service Class (new class)
Class S Sweep Class (new class)
EVERGREEN PENNSYLVANIA PENNSYLVANIA MUNICIPAL MONEY MARKET July 9, 2010
MUNICIPAL MONEY MARKET FUND FUND (NEW SHELL)
Class A Class A (new class)
40
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
Class I Service Class (new class)
Class S Sweep Class (new class)
EVERGREEN HEALTH CARE FUND HEALTH CARE FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
EVERGREEN PRECIOUS METALS FUND PRECIOUS METALS FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
EVERGREEN UTILITY & UTILITY & TELECOMMUNICATIONS FUND (NEW July 16, 2010
TELECOMMUNICATIONS FUND SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
EVERGREEN ASSET ALLOCATION FUND ASSET ALLOCATION FUND (NEW SHELL) July 16, 2010
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
Class R Class R (new class)
EVERGREEN DIVERSIFIED CAPITAL DIVERSIFIED CAPITAL BUILDER FUND (NEW July 9, 2010
BUILDER FUND SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
EVERGREEN DIVERSIFIED INCOME DIVERSIFIED INCOME BUILDER FUND (NEW July 9, 2010
BUILDER FUND SHELL)
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Institutional Class (new class)
EVERGREEN STRATEGIC GROWTH STRATEGIC LARGE CAP GROWTH FUND (NEW July 16, 2010
FUND SHELL)
Class A Class A (new class)
Class B Class A (new class)
Class C Class C (new class)
Class R Class R (new class)
Class I Institutional Class (new class)
Class IS Class A(new class)
41
TARGET FUND ACQUIRING FUND CLOSING DATE
------------------------------- -------------------------------------- -------------
EVERGREEN INSTITUTIONAL MUNICIPAL CASH MANAGEMENT MONEY July 9, 2010
MUNICIPAL MONEY MARKET FUND MARKET FUND (NEW SHELL)
Administrative Class Institutional Class (new class)
Institutional Class Institutional Class (new class)
Institutional Service Class Service Class (new class)
Investor Class Institutional Class (new class)
Participant Class Service Class (new class)
EVERGREEN GROWTH FUND TRADITIONAL SMALL CAP GROWTH FUND July 16, 2010
(NEW SHELL)
Class A Class A (new class)
Class B Class A (new class)
Class C Class A (new class)
Class I Institutional Class (new class)
EVERGREEN SMALL-MID GROWTH GROWTH OPPORTUNITIES FUND (NEW SHELL) July 16, 2010
FUND
Class A Class A (new class)
Class I Institutional Class (new class)
EVERGREEN HIGH INCOME FUND HIGH YIELD BOND FUND (NEW SHELL) July 9, 2010
Class A Class A (new class)
Class B Class B (new class)
Class C Class C (new class)
Class I Administrator Class (new class)
42
SCHEDULE A
MATERIAL AGREEMENTS
The following agreements shall be Material Agreements:
FOR THE WFA FUND TRUSTS:
Amended and Restated Declaration of Trust of the Xxxxx Fargo Funds Trust dated
March 10, 1999, and amended and restated on March 26, 1999, August 19, 1999,
November 5, 2002 and February 8, 2005.
Amended and Restated Declaration of Trust of the Xxxxx Fargo Variable Trust
dated March 10, 1999, and amended and restated on March 26, 1999, August 19,
1999, November 5, 2002 and February 8, 2005.
Amended and Restated Investment Advisory Agreement between Xxxxx Fargo Funds
Management, LLC ("Xxxxx Fargo Funds Management") and Xxxxx Fargo Funds Trust,
dated August 6, 2003, and amended October 1, 2005 and March 27, 2009, with
Schedule A amended March 27, 2009.
Amended and Restated Investment Advisory Agreement between Xxxxx Fargo Funds
Management and Xxxxx Fargo Variable Trust, dated August 6, 2003, and amended
October 1, 2005, with Schedule A amended March 28, 2008.
Amended and Restated Investment Sub-Advisory Contract among Xxxxx Capital
Management Incorporated, Xxxxx Fargo Funds Management and Xxxxx Fargo Funds
Trust, dated March 1, 2001, with Schedule A amended August 12, 2009.
Amended and Restated Investment Sub-Advisory Contract among Xxxxx Capital
Management Incorporated, Xxxxx Fargo Funds Management and Xxxxx Fargo Variable
Trust, dated March 1, 2001, with Schedule A amended February 8, 2006.
Investment Sub-Advisory Contract among Artisan Partners Limited Partnership,
Xxxxx Fargo Funds Management and Xxxxx Fargo Funds Trust, dated February 1,
2005, with Appendix A dated February 1, 2005 and Appendix B amended on November
8, 2005.
Investment Sub-Advisory Contract among Xxxxx & Xxxxxx, X.X., Xxxxx Fargo Funds
Management and Xxxxx Fargo Funds Trust, dated March 24, 2004, with Appendix A
amended July 18, 2008.
Investment Sub-Advisory Contract among Xxxxx & Xxxxxx, X.X., Xxxxx Fargo Funds
Management and Xxxxx Fargo Variable Trust, dated February 1, 2005, with Appendix
A and Appendix B amended February 8, 2006.
Investment Sub-Advisory Contract among Evergreen Investment Management Company,
LLC, Xxxxx Fargo Funds Management and Xxxxx Fargo Funds Trust, dated March 2,
2009, with Appendix A and Appendix B dated March 2, 2009.
Investment Sub-Advisory Contract among Evergreen Investment Management Company,
LLC, Xxxxx Fargo Funds Management and Xxxxx Fargo Variable Trust, dated March 2,
2009, with Appendix A and Appendix B dated March 2, 2009.
Investment Sub-Advisory Contract among Global Index Advisors, Inc., Xxxxx Fargo
Funds Management and Xxxxx Fargo Funds Trust, dated June 26, 2006, with Appendix
A amended February 7, 2007 and Appendix B amended August 12, 2009.
Investment Sub-Advisory Contract among LSV Asset Management, Xxxxx Fargo Funds
Management and Xxxxx Fargo Funds Trust, dated February 1, 2005, with Appendix A
and Appendix B dated February 1, 2005.
Investment Sub-Advisory Contract among Matrix Asset Advisors, Inc., Xxxxx Fargo
Funds Management and Xxxxx Fargo Funds Trust, dated April 11, 2005, with
Appendix A amended December 1, 2007 and Schedule A amended December 1, 2007.
Investment Sub-Advisory Contract among Matrix Asset Advisors, Inc., Xxxxx Fargo
Funds Management and Xxxxx Fargo Variable Trust, dated February 1, 2005, with
Appendix A amended February 8, 2006 and Schedule A amended February 8, 2006.
Investment Sub-Advisory Contract among Xxxxxx Capital Management, Xxxxx Fargo
Funds Management and Xxxxx Fargo Funds Trust, dated October 1, 2008, with
Appendix A and Appendix B dated October 1, 2008.
Investment Sub-Advisory Contract among Peregrine Capital Management, Inc., Xxxxx
Fargo Funds Management and Xxxxx Fargo Variable Trust, dated March 1, 2001, with
Appendix A amended February 8, 2006 and Schedule A amended May 9, 2007.
Investment Sub-Advisory Contract among Phocas Financial Corporation, Xxxxx Fargo
Funds Management and Xxxxx Fargo Funds Trust, dated March 21, 2008, with
Appendix A and Appendix B dated March 21, 2008.
Investment Sub-Advisory Contract among Dresdner RCM Global Investors LLC, Xxxxx
Fargo Funds Management and Xxxxx Fargo Funds Trust, dated October 29, 2001, with
Appendix A amended January 26, 2008 and Schedule A dated January 26, 2008.
Investment Sub-Advisory Contract among Xxxxxxxx Investment Management North
America, Inc., Xxxxx Fargo Funds Management and Xxxxx Fargo Funds Trust, dated
March 1, 2001, with Appendix A and Schedule A dated May 1, 2003.
Amended and Restated Accounting Services Agreement and Amended and Restated
Letter Agreement among Xxxxx Fargo Funds Trust, Xxxxx Fargo Master Trust, Xxxxx
Fargo Variable Trust and PFPC, Inc., each dated May 10, 2006, including Exhibit
A amended June 2, 2009 and Exhibit B.
Administration Agreement between Xxxxx Fargo Funds Management and Xxxxx Fargo
Funds Trust dated March 1, 2003, with Appendix A amended August 6, 2008 and
Schedule A amended August 12, 2009.
Administration Agreement between Xxxxx Fargo Funds Management and Xxxxx Fargo
Variable Fund Trust dated March 1, 2003, with Appendix A amended February 8,
2006.
Master Custodian Agreement among State Street Bank, N.A. and Xxxxx Fargo Funds
Trust, Xxxxx Fargo Master Trust and Xxxxx Fargo Variable Trust dated August 10,
2009, with Appendix A and Schedules A, B, C and D.
44
Distribution Agreement between Xxxxx Fargo Funds Distributor, LLC and Xxxxx
Fargo Funds Trust, dated April 8, 2005, with Schedule I amended August 12, 2009.
Distribution Agreement between Xxxxx Fargo Funds Distributor, LLC and Xxxxx
Fargo Variable Trust, dated April 8, 2005, with Schedule I amended February 8,
2006.
Distribution Plan adopted pursuant to Rule 12b-1 under the Investment Company
Act of 1940 approved by the Xxxxx Fargo Funds Trust Board on March 28, 2008,
with Appendix A amended June 2, 2009.
Distribution Plan adopted pursuant to Rule 12b-1 under the Investment Company
Act of 1940 approved by the Xxxxx Fargo Variable Trust Board on March 28, 2008,
with Appendix A amended February 8, 2006.
Expense Assumption Agreement between Xxxxx Fargo Funds Trust and Xxxxx Fargo
Funds Management dated February 29, 2008, with Schedule A.
Amended and Restated Fee and Expense Agreement among Xxxxx Fargo Funds Trust,
Xxxxx Fargo Master Trust and Xxxxx Fargo Funds Management, dated October 3,
2008, with Schedule A amended August 12, 2009.
Amended and Restated Fee and Expense Agreement between Xxxxx Fargo Variable
Trust and Xxxxx Fargo Funds Management, dated October 3, 2008, with Schedule A.
Shareholder Servicing Plan approved by the Board of Xxxxx Fargo Fund Trust on
March 27, 2009, with Appendix A amended June 2, 2009.
Amended and Restated Joint Fidelity Bond Allocation Agreement between Xxxxx
Fargo Funds Trust, Xxxxx Fargo Master Trust, Xxxxx Fargo Variable Trust amended
and restated on May 1, 2006, with Appendix A amended November 14, 2008.
Rule 18f-3 Multi-Class Plan approved by the Board of Xxxxx Fargo Funds Trust on
March 26, 1999 and amended August 6, 2008, with Appendix A amended June 2, 2009
and Appendix B amended March 28, 2008.
Amended and Restated Securities Lending Agreement between Xxxxx Fargo Funds
Trust, Xxxxx Fargo Master Trust, Xxxxx Fargo Variable Trust, Xxxxx Fargo Funds
Management and Xxxxx Fargo Bank, N.A. amended and restated on November 1, 2008,
with accompanying schedules and Letter regarding Account Revenues dated
September 1, 2007.
Transfer Agency and Service Agreement among Boston Financial Data Services,
Inc., Xxxxx Fargo Funds Trust and Xxxxx Fargo Variable Trust, dated April 11,
2005, amended on December 18, 2007 and Schedule A amended December 1, 2009.
45
FOR THE EVERGREEN FUND TRUSTS:
EVERGREEN EQUITY TRUST
WITH RESPECT TO EVERGREEN ASSET ALLOCATION FUND, EVERGREEN DISCIPLINED VALUE
FUND, EVERGREEN DIVERSIFIED CAPITAL BUILDER FUND, EVERGREEN ENHANCED S&P 500
FUND, EVERGREEN EQUITY INCOME FUND, EVERGREEN FUNDAMENTAL LARGE CAP FUND,
EVERGREEN FUNDAMENTAL MID CAP VALUE FUND, EVERGREEN GOLDEN CORE OPPORTUNITIES
FUND, EVERGREEN GOLDEN LARGE CAP CORE FUND, EVERGREEN GROWTH FUND, EVERGREEN
HEALTH CARE FUND, EVERGREEN INTRINSIC VALUE FUND, EVERGREEN LARGE COMPANY GROWTH
FUND, EVERGREEN MID CAP GROWTH FUND, EVERGREEN OMEGA FUND, EVERGREEN SMALL CAP
VALUE FUND, EVERGREEN SMALL-MID GROWTH FUND, EVERGREEN SPECIAL VALUES FUND, AND
EVERGREEN UTILITY & TELECOMMUNICATION FUND
ADVISORY AGREEMENTS
Investment Advisory and Management Agreement between Evergreen Equity Trust and
Evergreen Investment Management Company, LLC (dated 2/12/2009, with respect to
Evergreen Asset Allocation Fund, Evergreen Diversified Capital Builder Fund,
Evergreen Disciplined Value Fund, Evergreen Enhanced S&P 500(R) Fund, Evergreen
Equity Income Fund, Evergreen Fundamental Large Cap Fund, Evergreen Growth Fund,
Evergreen Health Care Fund, Evergreen Large Company Growth Fund, Evergreen Mid
Cap Growth Fund, Evergreen Omega Fund, Evergreen Small Cap Value Fund, Evergreen
Special Values Fund and Evergreen Utility & Telecommunications Fund)
Investment Advisory and Management Agreement between Evergreen Equity Trust and
Evergreen Investment Management Company, LLC (dated 2/12/2009, with respect to
Evergreen Small-Mid Growth Fund, Evergreen Intrinsic Value Fund, Evergreen
Fundamental Mid Cap Value Fund, Evergreen Golden Core Opportunities Fund, and
Evergreen Golden Large Cap Core Fund)
UNDERWRITING AGREEMENTS
Principal Underwriting Agreement between Evergreen Equity Trust and Xxxxx Fargo
Funds Distributor, LLC (dated 1/4/2010)
Principal Underwriting Agreement between Evergreen Equity Trust and Kokusai
Securities Company Limited (dated 1/23/1998)
Principal Underwriting Agreement between Evergreen Equity Trust and Nomura
Securities Company (dated 1/23/1998)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (dated 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Equity Trust and State Street Bank and
Trust Company (dated 9/18/1997, as amended 10/18/1999 (with respect to Evergreen
Growth Fund), 7/6/2000, 6/29/2001, 6/14/2002 (with respect to Evergreen Special
Values Fund), 9/11/2002 (with respect to Evergreen Asset Allocation Fund),
3/7/2005 (with respect to Evergreen Disciplined Value Fund), 10/1/2005 (with
respect to Evergreen Small-Mid Growth Fund), 10/12/2005 (with respect to
Evergreen Small-Mid Growth Fund), 1/19/2006, 12/7/2006, 7/16/2007 (with respect
to Evergreen Fundamental Mid Cap Value Fund), and 12/10/2007 (with respect to
Evergreen Golden Core Opportunities Fund and Evergreen Golden Large Cap Core
Fund))
Amended Pricing Schedule to Custodian Agreement (dated 12/19/2006)
46
Remote Access Services Agreement between Evergreen Equity Trust and State Street
Bank and Trust Company (dated 4/4/2007)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Equity Trust and
Evergreen Investment Services, Inc. (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Equity Trust, Evergreen Investment Management Company, LLC, and
Evergreen Investment Services, Inc. (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Equity Trust and Evergreen Service Company, LLC (dated 9/21/2006)
DISTRIBUTION PLANS
Distribution Plan for Class A Shares (dated 12/31/2008)
Distribution Plan for Class B Shares (dated 12/31/2008)
Distribution Plan for Class C Shares (dated 12/31/2008)
Distribution Plan for Class R Shares (dated 12/31/2008)
Distribution Plan for Class IS Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
47
EVERGREEN SELECT EQUITY TRUST
WITH RESPECT TO EVERGREEN STRATEGIC GROWTH FUND
ADVISORY AGREEMENT
Investment Advisory and Management Agreement between Evergreen Select Equity
Trust and Evergreen Investment Management Company, LLC (dated 2/12/2009)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen Select Equity Trust and Xxxxx
Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (dated 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Select Equity Trust and State Street Bank
and Trust Company (dated 9/18/1997, as amended 7/6/2000, 6/29/2001, 1/19/2006,
and 12/7/2006)
Amended Pricing Schedule to Custodian Agreement (dated 1/1/2007)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Select Equity Trust
and Evergreen Investment Services, Inc. (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Investment Management Company LLC, Evergreen Investment Services,
Inc., and Evergreen Select Equity Trust (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Select Equity Trust and Evergreen Service Company, LLC (dated
9/21/2006)
DISTRIBUTION PLANS
Distribution Plan for Class A Shares (dated 12/31/2008)
Distribution Plan for Class B Shares (dated 12/31/2008)
Distribution Plan for Class C Shares (dated 12/31/2008)
Distribution Plan for Class R Shares (dated 12/31/2008)
Distribution Plan for Class IS Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
48
EVERGREEN FIXED INCOME TRUST
WITH RESPECT TO EVERGREEN CORE PLUS BOND FUND, EVERGREEN DIVERSIFIED INCOME
BUILDER FUND, EVERGREEN HIGH INCOME FUND AND EVERGREEN U.S. GOVERNMENT FUND
ADVISORY AGREEMENT
Investment Advisory and Management Agreement between Evergreen Fixed Income
Trust and Evergreen Investment Management Company, LLC (dated 2/12/2009)
Letter Amendment to the Investment Advisory and Management Agreement between
Evergreen Fixed Income Trust and Evergreen Investment Management Company, LLC
(dated 9/19/2008, with respect to Evergreen High Income Fund)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen Fixed Income Trust and Xxxxx
Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (as of 9/18/1997)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Fixed Income Trust and State Street Bank
and Trust Company (dated 9/18/1997, as amended 7/6/2000, 6/29/2001, 1/19/2006,
and 12/7/2006)
Amended Pricing Schedule to Custodian Agreement (dated 1/1/2007)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Fixed Income Trust
and Evergreen Investment Services, Inc. (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Fixed Income Trust, Evergreen Investment Management Company, LLC, and
Evergreen Investment Services, Inc. (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Fixed Income Trust and Evergreen Service Company, LLC (dated
9/21/2006)
DISTRIBUTION PLANS
Distribution Plan for Class A Shares (dated 12/31/2008)
Distribution Plan for Class B Shares (dated 12/31/2008)
Distribution Plan for Class C Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
49
EVERGREEN SELECT FIXED INCOME TRUST
WITH RESPECT TO EVERGREEN ADJUSTABLE RATE FUND, EVERGREEN INTERMEDIATE MUNICIPAL
BOND FUND, AND EVERGREEN INTERNATIONAL BOND FUND
ADVISORY AGREEMENT
Investment Advisory and Management Agreement between Evergreen Select Fixed
Income Trust and Evergreen Investment Management Company, LLC (dated 2/12/2009)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen Select Fixed Income Trust and
Xxxxx Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (dated 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Select Fixed Income Trust and State Street
Bank and Trust Company (dated 11/18/1997, as amended 7/6/2000, 6/29/2001,
1/19/2006, and 12/7/2006)
Amended Pricing Schedule to Custodian Agreement (dated 1/1/2007)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Select Fixed Income
Trust and Evergreen Investment Services, Inc. (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Select Fixed Income Trust, Evergreen Investment Management Company,
LLC, and Evergreen Investment Services, Inc. (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Select Fixed Income Trust and Evergreen Service Company, LLC (dated
9/21/2006)
DISTRIBUTION PLANS
Distribution Plan for Institutional Service Class Shares (dated 12/31/2008)
Distribution Plan for Class A Shares (dated 12/31/2008)
Distribution Plan for Class B Shares (dated 12/31/2008)
Distribution Plan for Class C Shares (dated 12/31/2008)
Distribution Plan for Class R Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
50
EVERGREEN MUNICIPAL TRUST
WITH RESPECT TO EVERGREEN CALIFORNIA MUNICIPAL BOND FUND, EVERGREEN HIGH INCOME
MUNICIPAL BOND FUND, EVERGREEN MUNICIPAL BOND FUND, EVERGREEN NORTH CAROLINA
MUNICIPAL BOND FUND, EVERGREEN PENNSYLVANIA MUNICIPAL BOND FUND, EVERGREEN
SHORT-INTERMEDIATE MUNICIPAL BOND FUND AND EVERGREEN STRATEGIC MUNICIPAL BOND
FUND
ADVISORY AGREEMENT
Investment Advisory and Management Agreement between Evergreen Municipal Trust
and Evergreen Investment Management Company, LLC (dated 2/12/2009)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen Municipal Trust and Xxxxx
Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (dated 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Municipal Trust and State Street Bank and
Trust Company (dated 9/18/1997, as amended 7/6/2000, 6/29/2001, 1/19/2006, and
12/7/2006)
Amended Pricing Schedule to Custodian Agreement (dated 12/7/2006)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Municipal Trust and
Evergreen Investment Services, Inc. (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement (dated
1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Municipal Trust and Evergreen Service Company, LLC (dated 9/21/2006)
DISTRIBUTION PLANS
Distribution Plan for Class A Shares (dated 12/31/2008)
Distribution Plan for Class B Shares (dated 12/31/2008)
Distribution Plan for Class C Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
51
EVERGREEN VARIABLE ANNUITY TRUST
WITH RESPECT TO EVERGREEN VA CORE BOND FUND, EVERGREEN VA FUNDAMENTAL LARGE CAP
FUND, EVERGREEN VA GROWTH FUND, EVERGREEN VA INTERNATIONAL EQUITY FUND,
EVERGREEN VA OMEGA FUND AND EVERGREEN VA SPECIAL VALUES FUND
ADVISORY AGREEMENT
Investment Advisory and Management Agreement between Evergreen Variable Annuity
Trust and Evergreen Investment Management Company, LLC (dated 2/12/2009)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen Variable Annuity Trust and
Xxxxx Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (dated 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Variable Annuity Trust and State Street
Bank and Trust Company (dated 5/1/1998, as amended 8/10/1998 (with respect to
Evergreen VA International Equity Fund), 2/1/2000 (with respect to Evergreen VA
Growth Fund), 7/6/2000, 6/29/2001, 8/1/2002 (with respect to Evergreen VA Core
Bond Fund), 1/19/2006, and 12/7/2006)
Amended Pricing Schedule to Custodian Agreement (dated 12/15/2006)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Variable Annuity
Trust and Evergreen Investment Services, Inc. (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Variable Annuity Trust, Evergreen Investment Management Company, LLC,
and Evergreen Investment Services, Inc. (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Variable Annuity Trust and Evergreen Service Company, LLC (dated
9/21/2006)
DISTRIBUTION PLAN
Distribution Plan for Class 2 Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
52
EVERGREEN MONEY MARKET TRUST
WITH RESPECT TO EVERGREEN CALIFORNIA MUNICIPAL MONEY MARKET FUND, EVERGREEN
MONEY MARKET FUND, EVERGREEN MUNICIPAL MONEY MARKET FUND, EVERGREEN NEW JERSEY
MUNICIPAL MONEY MARKET FUND, EVERGREEN NEW YORK MUNICIPAL MONEY MARKET FUND,
EVERGREEN PENNSYLVANIA MUNICIPAL MONEY MARKET FUND, EVERGREEN TREASURY MONEY
MARKET FUND AND EVERGREEN U.S. GOVERNMENT MONEY MARKET FUND
ADVISORY AGREEMENT
Investment Advisory and Management Agreement between Evergreen Money Market
Trust and Evergreen Investment Management Company, LLC (dated 3/12/2009)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen Money Market Trust and Xxxxx
Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (dated 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Money Market Trust and State Street Bank
and Trust Company (dated 9/18/1997, as amended in 1998 (as filed with the
Securities and Exchange Commission 5/31/2007, with respect to Evergreen New
Jersey Municipal Money Market Fund), 7/27/1999 (with respect to Evergreen
California Municipal Money Market Fund and Evergreen U.S. Government Money
Market Fund), 7/6/2000, 6/19/2001, 7/1/2001 (with respect to Evergreen New York
Municipal Money Market Fund), 1/19/2006, and 12/7/2006)
Amended Pricing Schedule to Custodian Agreement (dated 1/1/2007)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Investment Services,
Inc. and Evergreen Money Market Trust (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Money Market Trust, Evergreen Investment Management Company, LLC, and
Evergreen Investment Services, Inc. (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Money Market Trust and Evergreen Service Company, LLC (dated
9/21/2006)
DISTRIBUTION PLANS
Distribution Plan for Class A Shares (dated 12/31/2008)
Distribution Plan for Class B Shares (dated 12/31/2008)
Distribution Plan for Class C Shares (dated 12/31/2008)
Distribution Plan for Class S Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
53
EVERGREEN SELECT MONEY MARKET TRUST
WITH RESPECT TO EVERGREEN INSTITUTIONAL 100% TREASURY MONEY MARKET FUND,
EVERGREEN INSTITUTIONAL MONEY MARKET FUND, EVERGREEN INSTITUTIONAL MUNICIPAL
MONEY MARKET FUND, EVERGREEN INSTITUTIONAL TREASURY MONEY MARKET FUND, EVERGREEN
INSTITUTIONAL U.S. GOVERNMENT MONEY MARKET FUND AND EVERGREEN PRIME CASH
MANAGEMENT MONEY MARKET FUND
ADVISORY AGREEMENT
Investment Advisory and Management Agreement between Evergreen Select Money
Market Trust and Evergreen Investment Management Company, LLC (dated 2/12/2009)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen Select Money Market Trust and
Xxxxx Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (restated as of 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen Select Money Market Trust and State Street
Bank and Trust Company (dated 9/18/1997, as amended 7/27/1999 (with respect to
Evergreen Institutional U.S. Government Money Market Fund), 7/6/2000, 6/29/2001,
2/15/2002 (with respect to Evergreen Prime Cash Management Money Market Fund),
1/19/2006, and 12/7/2006)
Amended Pricing Schedule to Custodian Agreement (dated 12/15/2006)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen Investment Services,
Inc. and Evergreen Select Money Market Trust (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Investment Management Company, LLC, Evergreen Investment Services,
Inc. and Evergreen Select Money Market Trust (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen Select Money Market Trust and Evergreen Service Company, LLC (dated
9/21/2006)
DISTRIBUTION PLANS
Distribution Plan for Administrative Class Shares (dated 12/31/2008)
Distribution Plan for Investor Class Shares (dated 12/31/2008)
Distribution Plan for Institutional Service Class Shares (dated 12/31/2008)
Distribution Plan for Participant Class Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
54
EVERGREEN INTERNATIONAL TRUST
WITH RESPECT TO EVERGREEN EMERGING MARKETS GROWTH FUND, EVERGREEN GLOBAL LARGE
CAP EQUITY FUND, EVERGREEN GLOBAL OPPORTUNITIES FUND, EVERGREEN INTERNATIONAL
EQUITY FUND, EVERGREEN INTRINSIC WORLD EQUITY FUND AND EVERGREEN PRECIOUS METALS
FUND
ADVISORY AGREEMENTS
Investment Advisory and Management Agreement between Evergreen International
Trust and Evergreen Investment Management Company, LLC (dated 2/12/2009, with
respect to Evergreen Emerging Markets Growth Fund, Evergreen Global Large Cap
Equity Fund, Evergreen Global Opportunities Fund, Evergreen International Equity
Fund and Evergreen Precious Metals Fund)
Investment Advisory and Management Agreement between Evergreen International
Trust and Evergreen Investment Management Company, LLC (dated 3/12/2009, with
respect to the Evergreen Intrinsic World Equity Fund)
UNDERWRITING AGREEMENT
Principal Underwriting Agreement between Evergreen International Trust and Xxxxx
Fargo Funds Distributor, LLC (dated 1/4/2010)
DEFERRED COMPENSATION PLAN
Deferred Compensation Plan (dated 1/1/2005)
CUSTODIAN AGREEMENT
Custodian Agreement between Evergreen International Trust and State Street Bank
and Trust Company (dated 6/29/2001, as amended 1/19/2006, 12/7/2006, and
12/7/2006 (with respect to Evergreen Intrinsic World Equity Fund)
Amended Pricing Schedule to Custodian Agreement (dated 12/15/2006)
ADMINISTRATIVE SERVICES AGREEMENT
Master Administrative Services Agreement between Evergreen International Trust
and Evergreen Investment Services, Inc. (dated 1/2/2002)
Transfer and Assumption of Master Administrative Services Agreement between
Evergreen Investment Management Company, LLC, Evergreen Investment Services
Inc., and Evergreen International Trust (dated 1/1/2008)
Amended and Restated Master Transfer and Recordkeeping Agreement between
Evergreen International Trust and Evergreen Service Company, LLC (dated
9/21/2006)
Letter Amendment to Master Transfer and Recordkeeping Agreement between
Evergreen International Trust and Evergreen Service Company, LLC (dated
12/7/2006, with respect to Evergreen Intrinsic World Equity Fund)
DISTRIBUTION PLANS
Distribution Plan for Class A Shares (dated 12/31/2008)
Distribution Plan for Class B Shares (dated 12/31/2008)
Distribution Plan for Class C Shares (dated 12/31/2008)
55
Distribution Plan for Class R Shares (dated 12/31/2008)
MULTIPLE CLASS PLAN
Multiple Class Plan (dated 10/7/2003)
56
