AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made this 9th day of August, 1999, between Xxxx Xxxxxxx
Investment Trust, a Massachusetts business trust (the "Existing
Trust"), on behalf of Xxxx Xxxxxxx Real Estate Fund (the "Fund"),
and Xxxx Xxxxxxx Series Trust, a Massachusetts business trust
(the "Successor Trust"), each with principal offices at 000
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
1. Plan of Reorganization and Liquidation
(a) The Existing Trust, on behalf of the Fund, shall
assign, sell, convey, transfer and deliver to a new
series of the Successor Trust (the "Successor Fund") at
the Closing provided for in Section 2 (hereinafter
called the "Closing") all of its then existing assets
of every kind and nature. In consideration therefor,
the Successor Trust, on behalf of the Successor Fund,
agrees that at the Closing (i) the Successor Fund shall
assume all of the Fund's obligations and liabilities
then existing, whether absolute, accrued, contingent or
otherwise, including all unpaid fees and expenses of
the Fund in connection with the transactions
contemplated hereby and (ii) the Successor Trust shall
issue and deliver to the Fund a number of full and
fractional shares of each class of shares of beneficial
interest of the Successor Fund (the "Successor Fund
Shares"), which is equal to the number of full and
fractional shares of the corresponding class of shares
of the Fund then outstanding.
(b) Upon consummation of the transactions described in
paragraph (a) of this Section 1, the Existing Trust, on
behalf of the Fund, shall distribute in complete
liquidation pro rata to its shareholders of record as
of the Closing Date the Successor Fund Shares received
by the Fund. This distribution shall be accomplished
by establishing an account on the share record books of
the Successor Fund in the name of each shareholder of
each class of shares of the Fund, representing with
respect to each class of shares of the Successor Fund
the number of full and fractional Successor Fund Shares
equal to the number of shares of the corresponding
class of shares of the Fund owned of record by the
shareholder at the Closing Date.
(c) As promptly as practicable after the above liquidation
of the Fund, the legal existence of the Fund shall be
terminated.
2. Closing and Closing Date. The Closing shall occur at the
end of the day on October 29, 1999 or at such later time and date
as the parties may mutually agree (the "Closing Date").
3. Conditions Precedent. The obligations of the Existing
Trust, the Fund, the Successor Trust and the Successor Fund to
effect the transactions contemplated hereunder (the
"Reorganization") shall be subject to the satisfaction of each of
the following conditions:
(a) All such filings shall have been made with, and all
such authorizations and orders shall have been received
from, the Securities and Exchange Commission (the
"SEC") and state securities commissions as may be
necessary to permit the parties to carry out the
transactions contemplated by this Agreement.
(b) Each party shall have received an opinion of counsel
substantially to the effect that for federal income tax
purposes: (1) the acquisition of the assets and
assumption of the liabilities of the Fund by the
Successor Fund in return for Successor Fund Shares, the
distribution of such Successor Fund Shares to the
shareholders of the Fund in complete liquidation of the
Fund, and the termination of the Fund will constitute a
"reorganization" within the meaning of Section
368(a)(1) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the Successor Fund and the
Fund will each be "a party to a reorganization" within
the meaning of Section 368(b) of the Code; (2) no gain
or loss will be recognized by the Fund upon the
transfer of all of its assets to the Successor Fund
solely in exchange for the Successor Fund Shares and
the assumption by the Successor Fund of the liabilities
of the Fund and the distribution by the Fund of such
Successor Fund Shares to the shareholders of the Fund;
(3) no gain or loss will be recognized by the Successor
Fund upon the receipt of all of the assets of the Fund
in exchange solely for Successor Fund Shares and the
assumption by the Successor Fund of the liabilities of
the Fund; (4) the tax basis of the Successor Fund in
assets received from the Fund will be the same as the
tax basis of such assets in the hands of the Fund
immediately prior to the transfer of such assets to the
Successor Fund; (5) the Successor Fund's tax holding
period for the assets acquired from the Fund will
include, in each instance, the Fund's tax holding
period for those assets; (6) no gain or loss will be
recognized by the Fund's shareholders upon the exchange
of their shares of the Fund solely for Successor Fund
Shares as part of the reorganization; (7) the tax basis
of the Successor Fund Shares received by the Fund's
shareholders in the transaction will be, for each
shareholder, the same as the tax basis of the shares of
the Fund exchanged therefor; and (8) the tax holding
period of the Successor Fund Shares received by the
Fund's shareholders will include, for each shareholder,
the shareholder's tax holding period for the shares of
the Fund surrendered therefor, provided that the
surrendered shares were held as capital assets in the
hands of the Fund's shareholders on the date of the
exchange. The opinion may cover any additional matters
deemed material by such counsel.
(c) This Agreement and the Reorganization shall have been
adopted and approved by the affirmative vote of the
holders of a majority of the shares of the Fund
outstanding and entitled to vote (as defined by the
Investment Company Act of 1940, as amended (the "1940
Act")). All shares of the Fund will be voted together
as a single class.
(d) The Successor Trust, on behalf of the Successor Fund,
shall have entered into an Investment Management
Contract with Xxxx Xxxxxxx Advisers, Inc. which shall
be substantially identical in form and substance to the
Investment Management Contract in effect at the Closing
Date between the Fund and Xxxx Xxxxxxx Advisers, Inc.
The Investment Management Contract shall have been
approved by the Trustees of the Successor Trust,
including, to the extent required by law, the Trustees
of the Successor Trust who are not "interested persons"
of the Trust as defined in the 1940 Act.
(e) The Successor Trust, on behalf of the Successor Fund,
shall have entered into a Transfer Agency Agreement
with Xxxx Xxxxxxx Signature Services, Inc. and a
Distribution Agreement with Xxxx Xxxxxxx Funds, Inc.
These agreements shall be in each case substantially
identical in form and substance to those respective
agreements in effect at the Closing Date between the
Fund and said other parties. These agreements shall
have been approved by the Trustees of the Successor
Trust and, to the extent required by law, by the
Trustees of the Successor Trust who are not "interested
persons" of the Trust as defined in the 1940 Act.
(f) The Trustees of the Successor Trust, including those
Trustees of the Successor Trust who are not "interested
persons" of the Successor Trust as defined in the 1940
Act, shall have selected as auditors for the Successor
Fund such auditors as shall have been selected and
ratified for the Fund. This selection shall have been
ratified by the Fund as the sole shareholder of the
Successor Fund prior to the consummation of the
Reorganization.
(g) The Successor Trust, on behalf of the Successor Fund,
shall have adopted a Class A Shares Distribution Plan
and a Class B Shares Distribution Plan pursuant to Rule
12b-1 under the 1940 Act substantially identical in
form and substance to the Fund's Class A Shares
Distribution Plan and Class B Shares Distribution Plan,
respectively, in effect on the Closing Date. Each of
the Successor Fund's Distribution Plans shall be
approved by the Trustees of the Successor Trust in
accordance with Rule 12b-1 and by the Fund, as the sole
shareholder of the Successor Fund, prior to the
consummation of the Reorganization.
At any time prior to the Closing, any of the foregoing conditions
except 3(c) may be waived by the Board of Trustees of the
Existing Trust or the Board of Trustees of the Successor Trust
if, in their judgment, the waiver will not have a material
adverse effect on the interests of the shareholders of the Fund.
4. Amendment. This Agreement may be amended at any time by
action of the Trustees of the Existing Trust and the Trustees of
the Successor Trust, notwithstanding approval thereof by the
shareholders of the Fund, provided that no amendment shall have a
material adverse effect on the interests of the shareholders of
the Fund.
5. Termination. The Board of Trustees of the Existing Trust or
the Board of Trustees of the Successor Trust may terminate this
Agreement and abandon the Reorganization, notwithstanding
approval thereof by the shareholders of the Fund, at any time
prior to the Closing, if circumstances should develop that, in
their judgment, make proceeding with the Reorganization
inadvisable.
6. Limitation of Liability of the Trustees and the
Shareholders. Copies of the Declaration of Trust of the Existing
Trust and the Successor Trust, as each may be amended from time
to time, are on file with the Secretary of State of the
Commonwealth of Massachusetts, and notice is hereby given of the
limitation of shareholder liability as set forth in each
instrument. The obligations assumed by the Existing Trust on
behalf of the Fund and the Successor Trust on behalf of the
Successor Fund pursuant to this Agreement shall be limited in all
cases to the Existing Trust on behalf of the Fund and the
Successor Trust on behalf of the Successor Fund and their
respective assets. None of the other series of the Existing
Trust or the Successor Trust shall be liable for any obligations
assumed by the Fund or the Successor Fund hereunder. No party
named herein shall seek satisfaction of any obligation hereunder
from the shareholders or any shareholder of the Existing Trust,
the Fund, the Successor Trust or the Successor Fund. No party
named herein shall seek satisfaction of any such obligation from
the Trustees of the Successor Trust or the Trustees of the
Existing Trust or any individual Trustee.
This Agreement shall be executed in any number of counterparts
each of which shall be deemed to be an original, but all
counterparts together shall constitute only one instrument.
IN WITNESS WHEREOF, the parties have hereunto caused this
Agreement to be executed and delivered by their duly authorized
officers as of the day and year first above written.
XXXX XXXXXXX INVESTMENT TRUST, on behalf
of
its series Xxxx Xxxxxxx Real Estate Fund
Attest: By:
Secretary President
XXXX XXXXXXX SERIES TRUST,
on behalf of its series Xxxx Xxxxxxx Real
Estate Fund
Attest: By:
Secretary President
s:\agrcont\agreemnt\reorg\f_reorg\99realestate
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