Exhibit No. EX-99.4(a)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement") is dated as of
March 14, 2003, and is between The Xxxxxxxxxx Funds III, a Delaware statutory
trust ("Xxxxxxxxxx III"), Gartmore Variable Insurance Trust, a Massachusetts
business trust ("GVIT"), Gartmore Global Investments, Inc., a Delaware
corporation ("GGI") (with respect to Sections 5, 11 and 12 and subsection
1(c)(i)(B) only), and Commerzbank AG, a banking corporation organized under the
laws of the Federal Republic of Germany ("Commerzbank") (with respect to Section
5 only).
Background Information
X. Xxxxxxxxxx III is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end investment company of the management
type and has issued and outstanding shares of beneficial interest, $0.01 par
value, and without class designation, of the Xxxxxxxxxx Variable Series Emerging
Markets Fund (the "Acquired Fund").
B. GVIT is registered under the 1940 Act as an open-end investment company
of the management type, and has authorized the issuance of Class I, II and III
shares of beneficial interest, without par value, of the Gartmore GVIT
Developing Markets Fund (the "Acquiring Fund").
C. The Acquiring Fund currently is a shell series, without assets or
liabilities, created for the purpose of acquiring the assets and certain
liabilities of the Acquired Fund.
D. The Acquired Fund plans to transfer all of its assets, and to assign all
of its Stated Liabilities (as defined in Section 1(c)), to the Acquiring Fund,
in exchange solely for Class I shares of beneficial interest, without par value,
of the Acquiring Fund ("Acquiring Fund Shares"), which are voting securities,
followed by the distribution of the Acquiring Fund Shares by the Acquired Fund
to its shareholders in connection with the dissolution of the Acquired Fund, all
upon the terms and provisions of this Agreement (together, the
"Reorganization").
E. The Acquired Fund has elected, and the Acquiring Fund intends to elect,
to be a regulated investment company as described in Section 851 of the United
States Internal Revenue Code of 1986, as amended (the "Code").
F. This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368(a)(1) of the Code for the
Acquired Fund and the Acquiring Fund.
G. The Board of Trustees of Xxxxxxxxxx III has determined that the
Reorganization is in the best interests of Xxxxxxxxxx III and the Acquired Fund
and that the interests of the Acquired Fund's shareholders will not be diluted
as a result thereof.
H. The Board of Trustees of GVIT has determined that the Reorganization is
in the best interests of GVIT and the Acquiring Fund and that the interests of
the Acquiring Fund's shareholders will not be diluted as a result thereof.
Statement of Agreement
In consideration of the mutual promises herein contained, the parties to
this Agreement hereby covenant and agree as follows:
1. Plan of Reorganization
(a) Sale of Assets. Subject to the prior approval of shareholders of
the Acquired Fund and to the other terms and conditions contained herein
(including the condition that the Acquired Fund shall distribute to its
shareholders all of its investment company taxable income and net capital
gain as described in Section 8(h) herein), Xxxxxxxxxx III and the Acquired
Fund agree to assign, convey, transfer and deliver to GVIT and the
Acquiring Fund, and GVIT and the Acquiring Fund agree to acquire from
Xxxxxxxxxx III and the Acquired Fund on the Exchange Date (as defined
below), all of the Investments (as defined below), cash and other assets of
the Acquired Fund (collectively, "Assets"), in exchange for that number of
full and fractional Acquiring Fund Shares having an aggregate net asset
value equal to the value of all Assets of the Acquired Fund transferred to
the Acquiring Fund, as provided in Section 4, less the liabilities of the
Acquired Fund to be assumed by the Acquiring Fund as described below.
(b) Assets Acquired. The Assets to be acquired by the Acquiring Fund
from Xxxxxxxxxx III, on behalf of the Acquired Fund, shall consist of all
of the Acquired Fund's property, including, without limitation, all
Investments (as defined below), cash and dividends or interest receivables
which are owned by the Acquired Fund, and any deferred or prepaid expenses
shown as an asset on the books of the Acquired Fund, as of the Valuation
Time described in Section 4. As used in this Agreement, the term
"Investments" shall mean the Acquired Fund's investments shown on the
statements of assets and liabilities at December 31, 2002 referred to in
Section 2(c) hereof, as supplemented with such changes as Xxxxxxxxxx III,
on behalf of the Acquired Fund, shall make after December 31, 2002 only in
the ordinary course of its business.
(c) Liabilities Assumed. Prior to the Exchange Date, Xxxxxxxxxx III
will discharge or cause to be discharged, or make provision for the payment
of, all of the Acquired Fund's known liabilities, obligations and
unreconciled differences. The Acquiring Fund shall assume (and the Acquired
Fund shall thereupon be relieved of) (i) those liabilities, expenses, costs
and charges of the Acquired Fund reflected in the unaudited statements of
assets and liabilities of the Acquired Fund as of the Valuation Time,
prepared by or on behalf of Xxxxxxxxxx III and the Acquired Fund as of the
Valuation Time (A) in accordance with generally accepted accounting
principles consistently applied from and after December 31, 2002, and (B)
pursuant to an "agreed upon procedures" audit to be conducted by
PricewaterhouseCoopers LLP ("PWC") and paid for by GGI as of the Valuation
Time in accordance with generally accepted accounting principles
consistently applied, such audit to include an independent valuation by PWC
of all Acquired Fund assets; and (ii) normal and reasonable operating
expenses, costs and charges unknown at the Valuation Time, but excluding,
without limitation, liabilities, expenses, costs and charges involving or
relating to any legal, administrative or other enforcement proceedings as
well
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as other extraordinary items ((i) and (ii) collectively referred to
hereafter as the "Stated Liabilities").
(d) Liquidation and Dissolution. Upon consummation of the transactions
described in Sections 1(a), 1(b) and 1(c) above, the Acquired Fund shall
distribute to its shareholders of record as of the Exchange Date the
Acquiring Fund Shares received by it, each Acquired Fund shareholder of
record thereof being entitled to receive that number of Acquiring Fund
Shares equal in aggregate value to the value of the shares of beneficial
interest, $0.01 par value, of the Acquired Fund shares held by such
shareholder on such date. Xxxxxxxxxx III shall take such further action as
may be required, necessary or appropriate under Xxxxxxxxxx III's
Declaration of Trust, Delaware law and the Code to effect the complete
liquidation and dissolution of the Acquired Fund. Xxxxxxxxxx III, through
its administrator, will fulfill all of its reporting and filing
requirements under the 1940 Act, that arise both before and after the
Exchange Date, including without limitation filing final tax returns and a
final Form N-SAR, on behalf of the Acquired Fund.
2. Representations, Warranties and Agreements of Xxxxxxxxxx III. Xxxxxxxxxx
III represents and warrants to and agrees with GVIT and the Acquiring Fund
that:
(a) Xxxxxxxxxx III is a statutory trust validly existing and in good
standing under the laws of the State of Delaware and has power to own all
of its properties and assets and to carry out its obligations under this
Agreement. The Acquired Fund is a legally designated, separate series of
Xxxxxxxxxx III.
(b) Xxxxxxxxxx III is registered under the 1940 Act as an open-end
investment company of the management type, and such registration has not
been revoked or rescinded and is in full force and effect. Xxxxxxxxxx III
has elected to qualify and has qualified the Acquired Fund as a regulated
investment company under Part I of Subchapter M of the Code as of and since
the Acquired Fund's first taxable year, and the Acquired Fund is qualified
and intends to continue to qualify as a regulated investment company for
its current taxable year and for its taxable period ending upon its
liquidation.
(c) The statements of assets and liabilities, including the statements
of investments as of December 31, 2002, and the related statements of
operations for the year then ended, and statements of changes in net assets
for each of the two years in the period then ended, for the Acquired Fund,
such statements having been audited by PWC, independent auditors of
Xxxxxxxxxx III, have been furnished to GVIT. Such statements of assets and
liabilities fairly present the financial position of the Acquired Fund as
of such dates and such statements of operations and changes in net assets
fairly reflect the results of operations and changes in net assets for the
periods covered thereby in conformity with generally accepted accounting
principles, and there are no known material liabilities of the Acquired
Fund as of such dates which are not disclosed therein.
(d) The prospectus of the Acquired Fund dated April 30, 2002 and its
related Statement of Additional Information dated April 30, 2002, each as
amended to date and as hereafter may be amended from time to time
(together, the "Xxxxxxxxxx III Prospectus"), in the form filed by or on
behalf of Xxxxxxxxxx III under the Securities Act of 1933, as
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amended (the "1933 Act"), with the U.S. Securities and Exchange Commission
(the "Commission") and previously furnished to GVIT, did not as of their
date, do not as of the date hereof, and will not as of the Exchange Date,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(e) Except as may have been previously disclosed in writing to GVIT,
there are no material legal, administrative or other proceedings pending
or, to the knowledge of Xxxxxxxxxx III, threatened against Xxxxxxxxxx III
or the Acquired Fund. Xxxxxxxxxx III knows of no facts that might form the
basis for the institution of such proceedings and it is not a party to or
subject to the provisions of any order, decree, or judgment of any court or
governmental body that materially and adversely affects its business or its
ability to consummate the transactions contemplated by this Agreement.
(f) There are no material contracts outstanding to which Xxxxxxxxxx
III, on behalf of the Acquired Fund, is a party, other than as disclosed in
the Xxxxxxxxxx III Prospectus or to GVIT in writing, and there are no such
contracts or commitments (other than this Agreement) which will be
terminated with liability to Xxxxxxxxxx III or the Acquired Fund on or
prior to the Exchange Date.
(g) The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those shown as belonging to them on the
statements of assets and liabilities at December 31, 2002, and those
incurred since that date in the ordinary course of Xxxxxxxxxx III's
business as an investment company and of a similar nature to and consistent
with those shown on such statements of assets and liabilities at December
31, 2002. The Acquired Fund has not incurred, and will not incur, any
liability of a material nature, contingent or otherwise, other than those
incurred in the ordinary course of Xxxxxxxxxx III's business as an
investment company and of a similar nature to and consistent with those
shown on such statements of assets and liabilities at December 31, 2002,
from and after December 31, 2002, and through the Exchange Date, without
the prior express written consent of GVIT.
(h) The Investments include, and as of the Exchange Date will include,
only those securities or investments described in the Xxxxxxxxxx III
Prospectus and that are consistent with, and as of the Exchange Date will
be consistent with, the investment objective, policies and restrictions of
the Acquired Fund in all material respects.
(i) Xxxxxxxxxx III and the Acquired Fund have filed or will file all
federal, state and local tax returns which, to the knowledge of Xxxxxxxxxx
III's officers, are required to be filed by Xxxxxxxxxx III and the Acquired
Fund and have paid or will pay all federal, state and local taxes shown to
be due on said returns or on any assessments received by Xxxxxxxxxx III or
the Acquired Fund. All tax liabilities of Xxxxxxxxxx III and the Acquired
Fund have been adequately provided for on their books, and no tax
deficiency or liability of Xxxxxxxxxx III or the Acquired Fund has been
asserted, and no question with respect thereto has been raised, by the
Internal Revenue Service or by any state or local tax authority for taxes
in excess of those already paid.
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(j) As of both the Valuation Time and the Exchange Date and except for
shareholder approval and otherwise as described in Section 2(l), Xxxxxxxxxx
III and the Acquired Fund will have full right, power and authority to
assign, transfer and deliver the Investments and any other of the Assets to
be transferred to GVIT and the Acquiring Fund pursuant to this Agreement.
On the Exchange Date, subject only to the delivery of the Investments and
any such other Assets and the assumption of Stated Liabilities as
contemplated by this Agreement, GVIT and the Acquiring Fund will acquire
the Investments and any such other Assets subject to no encumbrances, liens
or security interests in favor of any third party creditor of Xxxxxxxxxx
III or the Acquired Fund and, except as described in Section 2(k), without
any restrictions upon the transfer thereof.
(k) No registration under the 1933 Act of any of the Investments would
be required if they were, as of the time of such transfer, the subject of a
public distribution by either of Xxxxxxxxxx III or GVIT, except as
previously disclosed to GVIT by Xxxxxxxxxx III prior to the date hereof.
(l) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Xxxxxxxxxx III
or the Acquired Fund of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the 1940 Act, state securities or
Blue Sky laws (which term as used herein shall include the laws of the
District of Columbia and of Puerto Rico) or state laws applicable to
business or statutory trusts.
(m) The registration statement (the "N-14 Registration Statement") to
be filed with the Commission by GVIT on Form N-14 relating to the Acquiring
Fund Shares issuable hereunder, and the proxy statement of Xxxxxxxxxx III
included therein (the "Proxy Statement"), on the effective date of the N-14
Registration Statement and insofar as they relate to Xxxxxxxxxx III and the
Acquired Fund, (i) will comply in all material respects with the provisions
of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at
the time of the shareholders' meeting referred to in Section 6 below and on
the Exchange Date, the prospectus contained in the N-14 Registration
Statement of which the Proxy Statement is a part, as amended or
supplemented by any amendments or supplements filed with the Commission by
GVIT (together, the "N-14 Prospectus"), insofar as it relates to Xxxxxxxxxx
III and the Acquired Fund, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(n) Xxxxxxxxxx III is aware of no information that would indicate that
(i) the Acquired Fund has, or has ever had, any shareholder that is not a
segregated asset account within the meaning of Section 1.817-5(f)(2)(i)(A)
of the regulations under the Code, or any entity referred to in (and
holding its shares in compliance with the terms of) Section
1.817-5(f)(3)(i), (ii) or (iii) of such regulations; (ii) any public
investor is participating or has ever participated in the Acquired Fund
through such a segregated asset account other than through purchase of a
variable contract within the meaning of Section 1.817-5(f)(2)(i)(B) of
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such regulations; and (iii) the Acquired Fund satisfies, and at all times
during its existence has satisfied, the percentage diversification tests
contained in Section 1.817-5(b)(1)(i) and (ii) of such regulations.
3. Representations, Warranties and Agreements of GVIT. GVIT represents and
warrants to and agrees with Xxxxxxxxxx III and the Acquired Fund that:
(a) GVIT is a business trust validly existing under the laws of the
Commonwealth of Massachusetts and has power to carry on its business as it
is now being conducted and to carry out its obligations under this
Agreement. The Acquiring Fund is a legally designated, separate series of
GVIT.
(b) GVIT is registered under the 1940 Act as an open-end investment
company of the management type, and such registration has not been revoked
or rescinded and is in full force and effect. The Acquiring Fund expects to
qualify as a regulated investment company under Part I of Subchapter M of
the Code.
(c) The Acquiring Fund will have no assets or liabilities as of the
Valuation Time.
(d) The prospectus of the Acquiring Fund is expected to be dated as of
a date in April 2003, and the related Statement of Additional Information
to be dated as of such date in the form to be filed by or on behalf of GVIT
with the Commission (together, the "Acquiring Fund Prospectus"), will be
furnished to Xxxxxxxxxx III promptly upon the completion thereof and will
not as of their date or as of the Exchange Date contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(e) Except as may have been previously disclosed to Xxxxxxxxxx III,
there are no material legal, administrative or other proceedings pending
or, to the knowledge of GVIT, threatened against GVIT or the Acquiring
Fund. GVIT knows of no facts that might form the basis for the institution
of such proceedings and it is not a party to or subject to the provisions
of any order, decree, or judgment of any court or governmental body that
materially and adversely affects its business or its ability to consummate
the transactions contemplated by this Agreement.
(f) There are no material contracts outstanding to which GVIT, on
behalf of the Acquiring Fund, is a party, other than as disclosed in the
Acquiring Fund Prospectus or to Xxxxxxxxxx III in writing.
(g) No consent, approval, authorization or order of any governmental
authority is required for the consummation by GVIT or the Acquiring Fund of
the transactions contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1934 Act, the 1940 Act, state securities
or Blue Sky laws or state laws applicable to business trusts.
(h) As of both the Valuation Time and the Exchange Date and otherwise
as described in Section 3(g), GVIT and the Acquiring Fund will have full
right, power and
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authority to acquire the Investments and any other Assets of the Acquired
Fund and to assume the Stated Liabilities to be transferred to the
Acquiring Fund pursuant to this Agreement.
(i) The N-14 Registration Statement, the N-14 Prospectus and the Proxy
Statement, on the effective date of the N-14 Registration Statement and
insofar as they relate to GVIT and the Acquiring Fund: (i) will comply in
all material respects with the provisions of the 1933 Act, the 1934 Act and
the 1940 Act and the rules and regulations thereunder, and (ii) will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and at the time of the shareholders' meeting
referred to in Section 6 and on the Exchange Date, the N-14 Prospectus and
the Proxy Statement, insofar as they relate to GVIT and the Acquiring Fund,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to statements
in or omissions from the N-14 Registration Statement, the N-14 Prospectus
or the Proxy Statement made in reasonable reliance upon and in conformity
with information furnished by Xxxxxxxxxx III or the Acquired Fund to GVIT
for use in the N-14 Registration Statement, the N-14 Prospectus or the
Proxy Statement.
(j) GVIT has no plan or intention to issue additional shares of the
Acquiring Fund following the Reorganization except for shares issued in the
ordinary course of GVIT's business as an open-end investment company, nor
does GVIT have any plan or intention to redeem or otherwise reacquire any
of the Acquiring Fund Shares issued to Acquired Fund shareholders pursuant
to the Reorganization, other than through redemptions arising in the
ordinary course of that business. GVIT will actively continue the Acquired
Fund's business in the same manner that the Acquired Fund conducted it
immediately before the Reorganization, and GVIT has no plan or intention to
sell or otherwise dispose of a substantial portion of the Investments to be
acquired by the Acquiring Fund in the Reorganization, except for
dispositions made in the ordinary course of its business and dispositions
necessary to maintain the status of the Acquiring Fund as a regulated
investment company under Subchapter M of the Code.
(k) The Acquiring Fund Shares to be issued by GVIT have been duly
authorized and, when issued and delivered by GVIT to Xxxxxxxxxx III
pursuant to this Agreement and in accordance with the N-14 Registration
Statement, will be legally and validly issued by GVIT and will be fully
paid and nonassessable and no shareholder of the Acquiring Fund will have
any preemptive right of subscription or purchase in respect thereof. There
are no outstanding options, warrants or other rights to subscribe for or
purchase the Acquiring Fund Shares, nor are there securities convertible
into Acquiring Fund Shares.
(l) The issuance of Acquiring Fund Shares pursuant to this Agreement
will be in compliance with all applicable federal and state securities
laws, including the 1933 Act.
4. Exchange Date; Valuation Time. On the Exchange Date (as defined below),
GVIT will deliver to Xxxxxxxxxx III a number of corresponding Acquiring
Fund Shares having an aggregate net asset value equal to the value of the
Assets of the Acquired Fund acquired by
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the Acquiring Fund, less the value of the Stated Liabilities of the
Acquired Fund assumed, determined as hereafter provided in this Section 4.
(a) Delivery of the Assets of the Acquired Fund to be transferred,
assumption of the Stated Liabilities of the Acquired Fund to be assumed
hereunder, and the delivery of Acquiring Fund Shares to be issued shall be
made at the offices of GVIT, at 9:00 A.M. on June 23, 2003, or at such
other time, date, and location agreed to by Xxxxxxxxxx III and GVIT, the
date and time upon which such delivery is to take place being referred to
herein as the "Exchange Date."
(b) The Assets of the Acquired Fund, less the Stated Liabilities to be
assumed hereunder, will be computed as of the Valuation Time, using the
valuation procedures set forth in the Xxxxxxxxxx III Prospectus.
(c) The net asset value of each of the Acquiring Fund Shares will be
equal to the net asset value per share of the Acquired Fund, determined to
the nearest full cent as of the Valuation Time, using the valuation
procedures set forth in the Acquiring Fund prospectus. The Valuation Time
shall be 4:00 P.M., Eastern time, on June 20, 2003, or such earlier or
later day and time as may be mutually agreed upon in writing by the parties
hereto (the "Valuation Time"). In the event that at the Valuation Time
either: (i) the New York Stock Exchange ("NYSE") or another primary
exchange on which the portfolio securities of the Acquiring Fund or the
Acquired Fund are purchased or sold, shall be closed to trading or trading
on such exchange shall be restricted; or (ii) trading or the reporting of
trading on the NYSE or elsewhere shall be disrupted so that accurate
appraisal of the value of the net assets of the Acquiring Fund or the
Acquired Fund is impracticable, the Valuation Time shall be postponed until
the first business day after the day when trading is fully resumed and
reporting is restored.
(d) The Acquiring Fund shall issue its Acquiring Fund Shares to
Xxxxxxxxxx III on a share deposit receipt registered in the name of
Xxxxxxxxxx III. Xxxxxxxxxx III shall distribute in liquidation the
Acquiring Fund Shares received by it hereunder pro rata to the shareholders
of the Acquired Fund by redelivering such share deposit receipt to GVIT's
transfer agent, which will as soon as practicable make such modifications
to the accounts for each former Acquired Fund shareholder as may be
necessary and appropriate. On the Exchange Date, each party shall deliver
to the other such bills of sale, checks, assignments, share certificates,
receipts and other documents, if any, as such other party or its counsel
may reasonably request.
(e) The Acquiring Fund shall assume all Stated Liabilities of the
Acquired Fund, in connection with the acquisition of Assets except that
recourse for assumed Stated Liabilities related to the Acquired Fund shall
be limited to the Acquiring Fund. Other than the Stated Liabilities,
neither GVIT nor the Acquiring Fund shall assume any other liabilities of
Xxxxxxxxxx III or the Acquired Fund, whether accrued or contingent in
connection with the acquisition of Assets and subsequent dissolution of the
Acquired Fund or Xxxxxxxxxx III or otherwise.
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5. Expenses, Fees, etc.
(a) Except as set forth below, each of Xxxxxxxxxx III and GVIT shall
be responsible for its respective fees and expenses of the Reorganization.
Notwithstanding the foregoing, GGI, an affiliate of the investment adviser
of the Acquiring Fund, will be responsible for all of Xxxxxxxxxx III's and
GVIT's fees, costs and expenses relating to the Reorganization, including,
but not limited to, the N-14 Registration Statement, all of Xxxxxxxxxx
III's proxy solicitation costs (including the costs of preparing, printing
and mailing proxy materials, the Special Shareholders Meeting, preparing
this Agreement and associated legal fees), consultants retained by the
Board of Trustees of Xxxxxxxxxx III to assist the Board in evaluating the
terms of the Reorganization, and any and all special meetings of the Board
of Trustees of Xxxxxxxxxx III as such meetings relate to the Reorganization
and the Acquired Fund, including, but not limited to, special meetings held
on December 16, 2002, January 14, 2003, February 11, 2003, February 19,
2003 and March 5, 2003 (collectively, the "Reorganization Expenses"), and
(ii) the cost of run-off errors and omission insurance for the Trustees and
officers of Xxxxxxxxxx III (limited only to matters related to the Acquired
Fund and in a form reasonably acceptable to Xxxxxxxxxx III and as described
in Section 11 hereto).
(b) Each of Xxxxxxxxxx III, GVIT, GGI and Commerzbank agrees to use
its commercially reasonable best efforts to complete the Reorganization.
This agreement notwithstanding:
(i) Should either Xxxxxxxxxx III or GVIT, in good faith, choose
for commercially reasonable reasons to abandon the Reorganization prior to
its completion, or if such Reorganization cannot be completed other than
for a reason set forth in (ii), (iii), or (iv) below (the "Abandoned
Reorganization"), then the aggregate Reorganization Expenses shall be paid
equally by each of GGI and Commerzbank.
(ii) Should GVIT (or GGI, as the case may be) breach or cause to
be breached a material provision of this Agreement resulting in a failure
to complete the Reorganization, then GGI will bear 100% of the
Reorganization Expenses.
(iii) Should Xxxxxxxxxx III breach or cause to be breached a
material provision of this Agreement resulting in a failure to complete the
Reorganization, then Commerzbank will bear 100% of the Reorganization
Expenses.
(iv) Should the Reorganization not receive the requisite vote of
shareholders to approve the Reorganization, then GGI will bear 100% of the
Reorganization Expenses.
(c) In no event will GGI or GVIT be responsible for or pay for any
fees, expenses or costs associated with terminating any contracts to which
Xxxxxxxxxx III or the Acquired Fund is a party.
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6. Special Meeting of Shareholders; Dissolution
(a) Xxxxxxxxxx III agrees to call a special meeting of shareholders of
the Acquired Fund as soon as is practicable for the purpose of considering
the transfer of all of the Assets, subject to Stated Liabilities, of the
Acquired Fund to the Acquiring Fund as herein provided, authorizing and
approving this Agreement, and authorizing and approving the liquidation and
dissolution of the Acquired Fund, and it shall be a condition to the
obligations of each of the parties hereto that the holders of shares of
beneficial interest, $0.01 par value, of the Acquired Fund shall have
approved this Agreement, and the transactions contemplated herein,
including the liquidation and dissolution of the Acquired Fund, in the
manner required by law and Xxxxxxxxxx III's Declaration of Trust at such a
meeting on or before the Valuation Time. Certified copies of the
resolutions evidencing such approval shall be promptly delivered to GVIT
after such special meeting.
(b) Xxxxxxxxxx III agrees that the liquidation and dissolution of the
Acquired Fund will be effected in the manner provided in Xxxxxxxxxx III's
Declaration of Trust and in accordance with applicable law, and that it
will not make any distribution of any Acquiring Fund Shares to the
shareholders of the Acquired Fund without first paying or adequately
providing for the payment of all of the Acquired Fund's known debts,
obligations and liabilities.
(c) Each of Xxxxxxxxxx III and GVIT will cooperate with the other and
will use its reasonable best efforts to complete and file the N-14
Registration Statement and otherwise to consummate the Reorganization, and
each will furnish to the other the information relating to itself required
by the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder to be set forth in the N-14 Registration Statement,
including the N-14 Prospectus and the Proxy Statement included therein.
7. Conditions of Xxxxxxxxxx III's Obligations. The obligations of Xxxxxxxxxx
III hereunder shall be subject to the following conditions:
(a) This Agreement shall have been authorized and the transactions
contemplated hereby, including the liquidation and dissolution of the
Acquired Fund, shall have been approved by the Board of Trustees of GVIT
and the shareholders of the Acquired Fund in the manner required by law.
(b) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of GVIT made in this Agreement are true and
correct in all material respects as if made at and as of such dates, GVIT
and the Acquiring Fund have complied with all of the agreements and
satisfied all of the conditions on their part to be performed or satisfied
at or prior to each of such dates, and GVIT shall have furnished to
Xxxxxxxxxx III a statement, dated the Exchange Date, signed by GVIT's
Secretary and Treasurer (or other financial officer) certifying
satisfaction of this condition 7(b) as of such dates.
(c) There shall not be any material litigation or administrative
proceeding pending or overtly threatened with respect to the matters
contemplated by this Agreement.
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(d) Xxxxxxxxxx III shall have received an opinion of Xxxxxxxx Ronon
Xxxxxxx & Young LLP in form reasonably satisfactory to Xxxxxxxxxx III, and
dated the Exchange Date, to the effect that (i) GVIT is a business trust
validly existing under the laws of the Commonwealth of Massachusetts, (ii)
the Acquiring Fund is a legally designated, separate series of GVIT, (iii)
GVIT is registered as an open-end management investment company under the
1940 Act, and, to the knowledge of such counsel, GVIT's registration with
the Commission as an investment company is in full force and effect, (iv)
the Acquiring Fund Shares to be delivered to Xxxxxxxxxx III as provided for
by this Agreement are duly authorized and upon such delivery will be
validly issued and will be fully paid and nonassessable by GVIT and no
shareholder of GVIT has any preemptive right to subscription or purchase in
respect thereof, (v) this Agreement has been duly authorized, executed and
delivered by GVIT, and assuming due authorization, execution and delivery
of this Agreement by Xxxxxxxxxx III, is a valid and binding obligation of
GVIT, enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and other
equitable principles, (vi) the execution and delivery of this Agreement did
not, and the consummation of the transactions contemplated hereby will not,
violate GVIT's Amended Declaration of Trust or its By-Laws or any provision
of any agreement known to such counsel to which GVIT or the Acquiring Fund
is a party or by which it is bound, (vii) the N-14 Registration Statement
has been declared effective by the Commission and, to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by GVIT or the
Acquiring Fund of the transactions contemplated herein, except such as have
been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as
may be required under state securities or Blue Sky laws, or as may be
required under state laws applicable to business trusts, (viii) in the
ordinary course of such counsel's representation of GVIT and the Acquiring
Fund, and without having made any investigation, such counsel does not know
of any legal or governmental proceedings (only insofar as they relate to
the Acquiring Fund) existing on or before the date(s) of mailing of the
Proxy Statement or the Exchange Date, which are required to be described in
the Proxy Statement or to be filed as an exhibit thereto that are not
described or filed as required, (ix) in the ordinary course of such
counsel's representation of GVIT and the Acquiring Fund, and without having
made any investigation, and except as otherwise disclosed, such counsel is
not aware of any litigation or administrative proceeding or investigation
before any court or governmental body that is presently pending or
threatened as to the Acquiring Fund or any of its properties or assets, and
to the knowledge of such counsel, GVIT and the Acquiring Fund are not a
party to or subject to the provisions of any order, decree or judgment of
any court or governmental body, which materially and adversely affects
GVIT's and the Acquiring Fund's business, and (x) based on a review of the
N-14 Prospectus and Proxy Statement (including any supplement or amendments
thereto) in the form then most recently filed with the Commission and
without making any other investigation, such counsel is not aware that
those documents, as they relate to GVIT and the Acquiring Fund, contain any
untrue statement of a material fact or omit to state a material fact
required to be started therein or necessary to make the statements therein
not misleading. In rendering such opinion Xxxxxxxx Ronon Xxxxxxx & Xxxxx
LLP may incorporate certain reasonable and customary exclusions
-11-
and limitations and may rely on certain reasonable assumptions and
certifications of fact received from GVIT and its officers.
(e) Xxxxxxxxxx III shall have received an opinion of Xxxxxxxx Ronon
Xxxxxxx & Young LLP addressed to Xxxxxxxxxx III and GVIT and in a form
reasonably satisfactory to Xxxxxxxxxx III dated the Exchange Date, with
respect to the matters specified in Section 8(e) of this Agreement. In
rendering such opinion Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP may rely on
certain reasonable assumptions and certifications of fact received from
GVIT and Xxxxxxxxxx III.
(f) All necessary proceedings taken by GVIT in connection with the
transactions contemplated by this Agreement and all documents incidental
thereto reasonably shall be satisfactory in form and substance to
Xxxxxxxxxx III, Paul, Hasting, Xxxxxxxx & Xxxxxx LLP and Xxxxxxxx Ronon
Xxxxxxx & Xxxxx LLP.
(g) The N-14 Registration Statement shall have become effective under
the 1933 Act and any applicable Blue Sky provisions, and no stop order
suspending such effectiveness shall have been instituted or, to the
knowledge of Xxxxxxxxxx III, contemplated by the Commission or any state
regulatory authority.
(h) GVIT and Xxxxxxxxxx III shall have received from the Commission or
other parties all required consents, orders and permits with respect to the
Reorganization.
(i) As of the Exchange Date, there shall have been no material change
in the investment objective, policies and restrictions of the Acquiring
Fund or any material change in the investment management fees, other fees
payable for services provided to the Acquiring Fund, or any fee waiver or
expense reimbursement undertakings of the Acquiring Fund from those
objectives, policies, restrictions, fee amounts and undertakings of the
Acquiring Fund described in the Proxy Statement.
(j) As of the Exchange Date, GVIT's fidelity bond for the Acquiring
Fund shall meet all applicable requirements under the 1940 Act based on the
level of the Acquiring Fund's assets immediately after the Exchange Date.
(k) GVIT shall have executed and delivered to Xxxxxxxxxx III an
Assumption of Liabilities dated as of the Exchange Date pursuant to which
the Acquiring Fund will assume all of the Stated Liabilities of the
Acquired Fund as described in Section 1(c) hereof in connection with the
transactions contemplated by this Agreement; provided that recourse for
Stated Liabilities relating to the Acquired Fund shall be limited to the
Acquiring Fund.
(l) Xxxxxxxxxx III shall have received a memorandum addressed to
Xxxxxxxxxx III and GVIT, in form and substance reasonably satisfactory to
them, prepared by BISYS Fund Services, Inc. concerning compliance with each
relevant state's securities laws in connection with GVIT's issuance of the
Acquiring Fund Shares.
(m) GGI has procured for the Trustees and officers of Xxxxxxxxxx III
the insurance coverage as described in Sections 5 and 11 of this Agreement.
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(n) GGI shall have, pursuant to Section 5 of this Agreement, paid or
reimbursed Xxxxxxxxxx III for all Reorganization Expenses reasonably
incurred by Xxxxxxxxxx III and that have been promptly submitted to GGI a
reasonable period of time prior to the Exchange Date.
8. Conditions of GVIT's Obligations. The obligations of GVIT and the Acquiring
Fund hereunder shall be subject to the following conditions:
(a) This Agreement shall have been authorized and the transactions
contemplated hereby, including the liquidation and dissolution of the
Acquired Fund, shall have been approved by the Board of Trustees of
Xxxxxxxxxx III and shareholders of the Acquired Fund in the manner required
by law.
(b) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Xxxxxxxxxx III made in this Agreement are
true and correct in all material respects as if made at and as of such
dates, Xxxxxxxxxx III and the Acquired Fund have complied with all the
agreements and satisfied all the conditions on their part to be performed
or satisfied at or prior to each of such dates, and Xxxxxxxxxx III shall
have furnished to GVIT a statement, dated the Exchange Date, signed by
Xxxxxxxxxx III's Chairman and Treasurer (or other financial officer)
certifying satisfaction of this condition 8(b) as of such dates.
(c) There shall not be any material litigation or administrative
proceeding pending or overtly threatened with respect to the matters
contemplated by this Agreement.
(d) GVIT shall have received an opinion of Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP, in form reasonably satisfactory to GVIT and dated the Exchange
Date, to the effect that (i) Xxxxxxxxxx III is a statutory trust validly
existing and in good standing under the laws of the State of Delaware, (ii)
the Acquired Fund is a legally designated, separate series of Xxxxxxxxxx
III, (iii) Xxxxxxxxxx III is registered as an open-end management
investment company under the 1940 Act, and, to the knowledge of such
counsel, Xxxxxxxxxx III's registration with the Commission as an investment
company is in full force and effect, (iv) this Agreement has been duly
authorized, executed and delivered by Xxxxxxxxxx III and, assuming due
authorization, execution and delivery of this Agreement by GVIT, is a valid
and binding obligation of Xxxxxxxxxx III, enforceable in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and other equitable principles, (v) Xxxxxxxxxx
III has power to assign, convey, transfer and deliver the Investments and
other Assets contemplated hereby, (vi) the execution and delivery of this
Agreement did not and the consummation of the transactions contemplated
hereby will not, violate Xxxxxxxxxx III's Declaration of Trust or By-Laws,
as amended, or any provision of any agreement known to such counsel to
which Xxxxxxxxxx III is a party or by which it is bound, (vii) to the
knowledge of such counsel, no consent, approval, authorization or order of
any court or governmental authority is required for the consummation by
Xxxxxxxxxx III of the transactions contemplated herein, except such as have
been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as
may be required under state securities or Blue Sky laws or state laws
applicable to business or
-13-
statutory trusts, (viii) in the ordinary course of such counsel's
representation of Xxxxxxxxxx III and the Acquired Fund, and without having
made any investigation, such counsel does not know of any legal or
governmental proceedings (only insofar as they relate to the Acquired Fund)
existing on or before the date(s) of mailing of the Proxy Statement or the
Exchange Date, which are required to be described in the Proxy Statement or
to be filed as an exhibit thereto that are not described or filed as
required, (ix) in the ordinary course of such counsel's representation of
Xxxxxxxxxx III and the Acquired Fund, and without having made any
investigation, and except as otherwise disclosed, such counsel is not aware
of any litigation or administrative proceeding or investigation before any
court or governmental body that is presently pending or threatened as to
Xxxxxxxxxx III or the Acquired Fund or any of its properties or assets, and
to the knowledge of such counsel, Xxxxxxxxxx III and the Acquired Fund are
not a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body, which materially and adversely
affects Xxxxxxxxxx III's and the Acquired Fund's business, and (x) based on
a review of the N-14 Prospectus and Proxy Statement (including any
supplement or amendments thereto) in the form then most recently filed with
the Commission and without making any other investigation, such counsel is
not aware that those documents, as they related to Xxxxxxxxxx III and the
Acquired Fund, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. In rendering such opinion, Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP may incorporate certain reasonable and
customary exclusions and limitations and may rely upon certain reasonable
and customary assumptions and certifications of fact received from
Xxxxxxxxxx III and its officers, and such opinion shall be limited to
matters of federal and California law and the statutory trust law of the
State of Delaware.
(e) GVIT, on behalf of the Acquiring Fund, shall have received an
opinion of Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP, addressed to GVIT and
Xxxxxxxxxx III, in form reasonably satisfactory to GVIT and dated the
Exchange Date, to the effect that for federal income tax purposes (i) the
acquisition by the Acquiring Fund of all of the assets of the Acquired Fund
as provided for in the Agreement in exchange for the Acquiring Fund Shares
and the assumption by the Acquiring Fund of all of the Stated Liabilities
of the Acquired Fund, followed by the distribution by the Acquired Fund to
its shareholders of the Acquiring Fund Shares in complete liquidation of
the Acquired Fund, will qualify as a reorganization within the meaning of
Section 368(a)(1)(F) of the Code, and the Acquired Fund and the Acquiring
Fund each will be a "party to the reorganization" within the meaning of
Section 368(b) of the Code: (ii) no gain or loss will be recognized by the
Acquired Fund upon the transfer of all of its assets to the Acquiring Fund
in exchange solely for the Acquiring Fund Shares and Acquiring Fund's
assumption of Acquired Fund's Stated Liabilities pursuant to Section 361(a)
and Section 357(a) of the Code; (iii) no gain or loss will be recognized by
the Acquiring Fund upon the receipt by it of all of the assets of the
Acquired Fund in exchange for the Acquiring Fund Shares pursuant to Section
1032(a) of the Code; (iv) no gain or loss will be recognized by the
Acquired Fund upon the distribution of the Acquiring Fund Shares to its
shareholders in complete liquidation of the Acquired Fund (in pursuance of
the Agreement) pursuant to Section 361(c)(1) of the Code; (v) the basis of
the assets of the Acquired Fund received by the Acquiring Fund will be the
same as the basis of these assets to the Acquired Fund immediately prior to
the exchange pursuant to
-14-
Section 362(b) of the Code; (vi) the holding period of the assets of the
Acquired Fund received by the Acquiring Fund will include the period during
which such assets were held by the Acquired Fund pursuant to Section
1223(2) of the Code; (vii) no gain or loss will be recognized by the
shareholders of the Acquired Fund upon the exchange of their Acquired Fund
Shares for Acquiring Fund Shares (including fractional shares to which they
may be entitled) pursuant to Section 354(a) of the Code; (viii) the basis
of the Acquiring Fund Shares received by the shareholders of the Acquired
Fund (including fractional shares to which they may be entitled) will be
the same as the basis of the Acquired Fund Shares exchanged therefor
pursuant to Section 358(a)(1) of the Code; (ix) the holding period of the
Acquiring Fund Shares received by the shareholders of the Acquired Fund
(including fractional shares to which they may be entitled) will include
the holding period of the Acquired Fund Shares surrendered in exchange
therefor, provided that the Acquired Fund Shares were held as a capital
asset pursuant to Section 1223(1) of the Code on the Closing Date; (x) the
Acquiring Fund will succeed to and take into account, as of the date of the
transfer as defined in Section 1.381(b)-1(b) of the income tax regulations
issued by the United States Department of the Treasury (the "Treasury
Regulations"), the items of the Acquired Fund described in Section 381(c)
of the Code. In rendering such opinion, Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP
may assume that the Reorganization is carried out in accordance with the
terms of this Agreement, the laws of the State of Delaware and the
Commonwealth of Massachusetts, and rely upon certain reasonable and
customary assumptions and certifications of fact received from GVIT and
Xxxxxxxxxx III.
(f) The N-14 Registration Statement shall have become effective under
the 1933 Act and any applicable Blue Sky provisions, and no stop order
suspending such effectiveness shall have been instituted or, to the
knowledge of GVIT, contemplated by the Commission or any state regulatory
authority.
(g) All necessary proceedings taken by Xxxxxxxxxx III in connection
with the transactions contemplated by this Agreement and all documents
incidental thereto reasonably shall be satisfactory in form and substance
to GVIT, Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP and Xxxxxxxx Ronon Xxxxxxx
& Young LLP.
(h) Prior to the Exchange Date, the Acquired Fund shall have declared
a dividend or dividends which, together with all previous such dividends,
shall have the effect of distributing to its shareholders all of its
investment company taxable income for its taxable year ended December 31,
2002 and the short taxable year beginning on January 1, 2003 and ending on
the Valuation Time (computed without regard to any deduction for dividends
paid), and all of its net capital gain realized in its taxable year ended
December 31, 2002 and the short taxable year beginning January 1, 2003 and
ending on the Valuation Time (after reduction for any capital loss
carryover).
(i) Xxxxxxxxxx III shall have duly executed and delivered to GVIT a
xxxx of sale, assignment, certificate and other instruments of transfer
("Transfer Documents") as GVIT reasonably may deem necessary or desirable
to transfer all of Xxxxxxxxxx III's entire right, title and interest in and
to the Investments and all other Assets of the Acquired Fund to the
Acquiring Fund.
-15-
(j) Xxxxxxxxxx III shall have delivered, or caused to be delivered, to
GVIT, on behalf of the Acquiring Fund, information, in a form reasonably
satisfactory to GVIT, concerning the tax basis of the Acquired Fund in all
Investments transferred to the Acquiring Fund, together with shareholder
information including (A) the names, addresses and taxpayer identification
number of shareholders of the Acquired Fund as of the Exchange Date, and
(B) the number of shares in the Acquired Fund owned by each shareholder.
(k) GVIT and Xxxxxxxxxx III shall have received from the Commission or
other parties all required consents, orders and permits with respect to the
Reorganization.
(l) As of the Exchange Date, there shall have been no material change
in the investment objective, policies and restrictions of the Acquired Fund
nor any material change in the investment management fees, other fees
payable for services provided to the Acquired Fund, or any fee waiver or
expense reimbursement undertakings of the Acquired Fund from those
objectives, policies, restrictions, fee amounts and undertakings of the
Acquired Fund described in the Proxy Statement.
9. Termination.
(a) A majority of a party's Board of Trustees may terminate this
Agreement with respect to the Acquiring Fund or the Acquired Fund, as
appropriate, if: (i) the party's conditions precedent set forth in Sections
7 or 8, as appropriate, are not satisfied on the Exchange Date; (ii) it
becomes reasonably apparent to the party's Board of Trustees that the other
party will not be able to satisfy such conditions precedent on the Exchange
Date; or (iii) the party's Board of Trustees determines that the
consummation of the Reorganization is not in the best interests of its
shareholders and gives notice to the other party.
(b) GVIT and Xxxxxxxxxx III may also, by mutual consent of their
respective Trustees, terminate this Agreement, and GVIT or Xxxxxxxxxx III,
after consultation with counsel and by consent of their respective Trustees
or an officer authorized by such Trustees may, subject to Section 10 of
this Agreement, waive any condition to their respective obligations
hereunder.
10. Sole Agreement; Governing Law; Amendments. This Agreement supersedes all
previous correspondence and oral communications between the parties
regarding the subject matter hereof, constitutes the only understanding
with respect to such subject matter and shall be construed in accordance
with and governed by the laws of the Commonwealth of Pennsylvania.
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officer of GVIT
and Xxxxxxxxxx III; provided, however, that following the special meeting
of the Acquired Fund's shareholders called by Xxxxxxxxxx III pursuant to
Section 7 of this Agreement, no such amendment may have the effect of
altering or changing the amount or kind of shares received by Xxxxxxxxxx
III, or altering or changing to any material extent the amount or kind of
liabilities assumed by GVIT and the Acquiring Fund, or altering or changing
any other terms and conditions of the Reorganization if any of the
alterations or changes, alone or in the
-16-
aggregate, would materially adversely affect the Acquired Fund's
shareholders without their further approval.
This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
11. Insurance. GGI shall provide, for a period of not less than five years from
the Exchange Date, errors and omissions insurance coverage covering
Trustees and officers of Xxxxxxxxxx III (limited only to matters related to
the Acquired Fund). Such errors and omissions insurance policy shall
contain terms and shall provide coverage that are no less favorable than
those contained in or provided by the errors and omissions insurance policy
currently in effect covering the Trustees and officers of Xxxxxxxxxx III.
12. Indemnification. GGI agrees that it, or a corporate affiliate that it may
designate ("Gartmore"), shall indemnify, defend and hold harmless
Xxxxxxxxxx III's Trustees and the following officers of Xxxxxxxxxx III (and
any duly appointed replacement of any such officers) (collectively, the
"officers" and each, an "officer"): R. Xxxxxxx Xxxxx (Chairman), Xxxxxxx
Xxxxxx (Assistant Secretary) and Xxxxxx Xxx (Assistant Secretary) against
and from all losses, claims, demands, liabilities and expenses, including,
without limitation, reasonable legal and other expenses incurred in
defending claims of liabilities, arising out of or based upon actions or
failures to act or omissions by the Trustees and such officers, as the case
may be, with respect to the Acquired Fund as part of the Reorganization,
but only to the extent that such losses, claims, demands, liabilities and
expenses are not covered by the liability insurance that Gartmore is
required to obtain on behalf of and for the benefit of the Trustees and
officers as set forth in Sections 5 and 11 above (but including the
expenses, if any, of resolving any coverage issue under such liability
insurance policy); provided, however, such indemnity shall not extend to
losses, claims, demands, liabilities and expenses arising out of or based
upon actions or omissions of the Trustees or the officers, as the case may
be, that constitute willful misconduct, bad faith, gross negligence or
reckless disregard by the Trustees or the officers, as the case may be, of
their duties involved in the conduct of their respective offices.
13. Updating of Form N-14 Registration Statement. If, at any time prior to the
effective time of the Reorganization, a party becomes aware of any untrue
statement of material fact or omission to state a material fact required to
be stated therein or necessary to make the statements made not misleading
in light of the circumstances under which these were made in the N-14
Registration Statement, the party discovering the item shall notify the
other parties, and the parties shall cooperate in promptly preparing,
filing and clearing with the SEC and, if appropriate, distributing to
shareholders appropriate disclosure with respect to the item.
14. Notices. Any notice, report, statement, certificate or demand required or
permitted by any provision of this Agreement shall be in writing and shall
be given by prepaid telecopy, certified mail or overnight express courier
to:
For the Acquired Fund:
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Xxxx Xxxxxxx, President
Xxxxxxxxxx Asset Management, LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
With a copy to:
Xxxxx Xxxxxxx
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
For the Acquiring Fund:
Xxxxx Xxxxxxx, Director of Strategic Planning
Gartmore Global Investments, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
With copies to:
Xxxxxx Xxxxxx, Director, Product Development
Gartmore Global Investments, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxxx Xxxx
Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
15. GVIT, Xxxxxxxxxx III and their Trustees. The terms "Garmore Variable
Insurance Trust," "The Xxxxxxxxxx Funds III," the "Trustees of Gartmore
Variable Insurance Trust" and the "Trustees of The Xxxxxxxxxx Funds III"
refer respectively to the Trusts created and the Trustees, as trustees but
not individually or personally, acting from time to time under a
Declaration of Trust dated as of June 30, 1981 (with respect to Gartmore
Variable Insurance Trust) or under a Declaration of Trust dated as of
August 24, 1994 (with respect to Xxxxxxxxxx Funds III), as such have been
or may be amended from time to time, and to which reference is hereby made
and copies of which are on file at the office of the Secretary of State of
the Commonwealth of Massachusetts and the Secretary of State of the State
of Delaware, respectively, and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of GVIT
entered into in the name or on behalf thereof by any of GVIT's Trustees,
representatives, or agents are not made individually, but only in their
capacities with respect to Gartmore Variable Insurance Trust. Such
obligations are not binding upon any of the Trustees, shareholders, or
representatives of GVIT personally, but bind only the assets of the
Acquiring Fund of GVIT. The obligations of Xxxxxxxxxx III entered into in
the name or on behalf thereof by any of
-18-
Xxxxxxxxxx III Trustees, representatives, or agents are not made
individually, but only in their capacities with respect to Xxxxxxxxxx III.
Such obligations are not binding upon any of the Trustees, shareholders, or
representatives of Xxxxxxxxxx III personally, but bind only the assets of
the Acquired Fund of Xxxxxxxxxx III. All persons dealing with any series of
shares of GVIT or Xxxxxxxxxx III must look solely to the assets of GVIT or
Xxxxxxxxxx III, as the case may be, belonging to such series for the
enforcement of any claims against such trust.
THE XXXXXXXXXX FUNDS III
By /s/ R. Xxxxxxx Xxxxx
-------------------------------------------------
R. Xxxxxxx Xxxxx
Chairman, Board of Trustees
GARTMORE VARIABLE INSURANCE TRUST
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx Treasurer - CFO
GARTMORE GLOBAL INVESTMENTS, INC.
(With respect to Sections 5, 11 and 12 and subsection
1(c)(i)(B) of this Agreement only)
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx XX. V.P. - CAO
COMMERZBANK AG
(With respect to Section 5 of this Agreement only)
By
-------------------------------------------------
(Name) (Title)
-19-
