Exhibit (9)
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION dated as of February
7, 1989 (the "Agreement") between STATE STREET INVESTMENT CORPORATION, a
Massachusetts corporation (the "Corporation"), and STATE STREET INVESTMENT
TRUST, a Massachusetts business trust (the "Trust"), both with principal offices
at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.
WHEREAS the Corporation is a diversified, open-end management investment
company registered under the Investment Company Act of 1940, as amended;
WHEREAS the Corporation has authorized capital stock consisting of
40,000,000 shares of common stock, $2.50 par value; and
WHEREAS the Trust was organized pursuant to an Agreement and Declaration of
Trust (the "Master Trust Agreement") dated February 7, 1989 and is presently
authorized to issue an unlimited number of shares of beneficial interest, $.001
par value.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. Plan of Reorganization. The Corporation shall, prior to the Effective
Time of the Reorganization, transfer all of its business and assets, and assign
all its liabilities, to the Trust, and the Trust, through a Sub-Trust, shall
acquire all such business and assets, and shall assume all such liabilities of
the Corporation then existing, whether absolute, accrued, contingent or
otherwise, including without limitation all liabilities of the Corporation to
stockholders who elect to dissent from the transaction contemplated hereby and
perfect their appraisal rights under Massachusetts law and all fees and expenses
in connection with the transaction contemplated hereby in exchange for delivery
to the Corporation by the Trust of a number of shares of the Trust (both full
and fractional) equivalent to the number of shares of the Corporation
outstanding immediately prior to the Effective Time of the Reorganization. All
debts, liabilities, obligations and duties of the Corporation, to the extent
that they exist at or after the Effective Time of the Reorganization, shall
after the Effective Time of the Reorganization attach to the Sub-Trust and may
be enforced against the Sub-Trust to the same extent as if the same had been
incurred by the Sub-Trust.
2. Liquidation and Dissolution of the Corporation. At the Effective Time of
the Reorganization, the Corporation will liquidate and the shares of the Trust
(both full and fractional) received by the Corporation will be distributed to
the
stockholders of the Corporation (other than those stockholders who have objected
to the Reorganization so as to be eligible to perfect statutory appraisal
rights) in exchange for their shares of the Corporation, each stockholder to
receive a number of shares of the Trust equal to the number of shares of the
Corporation held by him, provided that a stockholder who has objected to the
Reorganization so as to be eligible to perfect statutory appraisal rights shall
have no rights with respect to Trust shares until such time as he has waived or
otherwise relinquished such statutory appraisal rights. Such liquidation and
distribution will be accompanied by the establishment of an open account on the
share records of the Trust in the name of each stockholder of the Corporation
and representing the respective pro rata number of shares of the Trust due such
stockholder. Certificates for shares of the Corporation issued prior to the
Reorganization shall represent outstanding shares of the Trust after the
Effective Time of the Reorganization. As soon as practicable after the
Effective Time of the Reorganization, the Corporation shall file Articles of
Dissolution for recording with the Secretary of State of the Commonwealth of
Massachusetts, and shall take, in accordance with the Massachusetts Business
Corporation Law, all other steps as shall be necessary and proper to effect a
complete dissolution of the Corporation.
3. Issued Share. Prior to the Effective Time of the Reorganization and
after the Corporation has taken the actions authorized by stockholders of the
Corporation pursuant to Section 4(c) hereof, the single share of the Trust
heretofore held by the Corporation shall be redeemed and canceled by the Trust.
4. Conditions Precedent. The obligations of the Corporation and the Trust
to effectuate the Plan of Reorganization and Liquidation hereunder shall be
subject to the satisfaction of each of the following conditions:
(a) Each party shall have received an opinion of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. that the Trust is duly formed and validly
existing under the laws of the Commonwealth of Massachusetts and that the shares
of the Trust to be issued pursuant to the terms of this Agreement have been duly
authorized, and, when issued and delivered as provided in this Agreement, will
have been validly issued, fully paid and nonassessable.
(b) Each party shall receive an opinion of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. to the effect that the reorganization
contemplated by this Agreement qualifies as a "reorganization" under Section
368(a)(1) of the Internal Revenue Code of 1954, as amended (the "Code").
(c) A vote approving this Agreement and the Reorganization
contemplated hereby shall have been adopted by at least two thirds of the
outstanding shares of common stock of the
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Corporation entitled to vote at an annual or special meeting, such a vote by the
stockholders of the Corporation at such meeting to be deemed to authorize the
Corporation to vote, and the Corporation shall have voted, as the sole
stockholder of the Trust to:
(1) elect Trustees of the Trust;
(2) approve the selection of Coopers & Xxxxxxx as independent
accountants of the Trust;
(3) adopt all other existing contractual agreements of the
Corporation for the Trust.
(d) The Board of Trustees of the Trust shall have taken the following
actions at a meeting duly called for such purposes:
(1) selection of Coopers & Xxxxxxx as independent accountants of the
Trust;
(2) authorization of the issuance by the Trust, prior to the
Effective Time of the Reorganization, of one share of the Trust to the
Corporation in consideration of the payment of $1.00 for the purpose of enabling
the Corporation to vote on the matters referred to in paragraph (c) in this
Section 4;
(3) submission of the matters referred to in paragraph (c) of this
Section 4 to the Corporation as the sole stockholder of the Trust; and
(4) authorization of the issuance by the Trust of shares of the Trust
at the Effective Time of the Reorganization in exchange for the assets of the
Corporation pursuant to the terms and provisions of this Agreement.
At any time prior to the Effective Time of the Reorganization, any of the
foregoing conditions may be waived by the Board of Directors of the Corporation
if, in the judgment of such Board, such waiver shall not have a material adverse
effect on the benefits intended under this Agreement to the stockholders of the
Corporation.
5. Effective Time of the Reorganization. The exchange of the Corporation's
business and assets for shares of the Trust shall be effective as of the opening
of business on May 1, 1989, or at such other time and date as fixed by the
mutual consent of the parties (the "Effective Time of the Reorganization").
6. Amendment. This Agreement may be amended at any time by action of the
Board of Directors of the Corporation or the Trustees of the Trust,
notwithstanding approval thereof by the stockholders of the Corporation,
provided that no amendment shall have a material adverse effect on the interests
of the stockholders of the Corporation.
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7. Termination. This Agreement and the transactions contemplated hereby may
be terminated and abandoned by resolution of the Board of Directors of the
Corporation at any time prior to the Effective Time of the Reorganization, if
circumstances should develop that, in the opinion of the Board, make proceeding
with the Agreement inadvisable.
8. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts.
9. Further Assurances. The Corporation and the Trust shall take such
further action as may be necessary or desirable and proper to consummate the
transaction contemplated hereby.
10. Limitation of Liability. The term "State Street Investment Trust" means
and refers to the Trustees from time to time serving under the Master Trust
Agreement of the Trust dated February 7, 1989, as the same may be subsequently
thereto, or subsequently hereto, amended. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the Trust,
personally, but bind only the assets and property of the Sub-Trust, as provided
in the Master Trust Agreement of the Trust.
STATE STREET INVESTMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Vice President
STATE STREET INVESTMENT TRUST
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Xxxxxxx X. Xxxxx, Xx., Trustee
