FORM OF
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this __ day of _____, 2000 by and between Nations Fund, Inc. (the "Company"),
a Maryland corporation, for itself and on behalf of its Nations International
Growth Fund, and Nations Reserves ("Reserves"), a Massachusetts business trust,
for itself and on behalf of its Nations International Equity Fund.
WHEREAS, the Company and Reserves 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, the parties desire that the Fund Assets and Liabilities (as
defined below) of the Company's Nations International Growth Fund (the "Acquired
Fund") be conveyed to and be acquired and assumed, by Reserves's Nations
International Equity Fund (the "Acquiring Fund") in exchange for shares of equal
U.S. dollar value of such Acquiring Fund which shall thereafter promptly be
distributed to the shareholders of the Acquired Fund in connection with its
liquidation as described in this Agreement and set forth in Schedule A attached
hereto (the "Reorganization"); and
WHEREAS, the parties intend that the 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 the Acquiring Fund and the
Acquired Fund will each 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 terms and conditions described
herein, the Acquired Fund and Acquiring Fund shall be consolidated as follows:
1. Conveyance of Fund Assets and Liabilities of the Acquired Fund.
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(a) Except as provided below, at the Effective Time of the
Reorganization (as defined in Section 8) all assets of every
kind, and all interests, rights, privileges and powers of the
Acquired Fund (the "Fund Assets"), subject to all liabilities
of the Acquired Fund existing as of the Effective Time of the
Reorganization (the "Liabilities"), shall be transferred by
the Acquired Fund to the Acquiring Fund and shall be accepted
and assumed by the Acquiring Fund, as more particularly set
forth in this Agreement, such that at and after the Effective
Time of the Reorganization: (i) all Fund Assets of the
Acquired Fund shall become the assets of the Acquiring Fund;
and (ii) all Liabilities of the Acquired Fund shall attach to
the Acquiring Fund, enforceable against the Acquiring Fund to
the same extent as if originally incurred by it.
(b) It is understood and agreed that the Fund Assets shall include
all property and assets of any nature whatsoever, including,
without limitation, all cash, cash equivalents, securities,
claims (whether absolute or contingent, known or unknown,
accrued or unaccrued) and receivables (including dividend and
interest receivables) owned or exercisable by the Acquired
Fund, and any deferred or prepaid expenses shown as an asset
on the Acquired Fund's books, that the Liabilities of the
Acquired Fund shall include all liabilities, whether known or
unknown, accrued or unaccrued, absolute or contingent, in all
cases, existing at the Effective Time of the Reorganization.
(c) At least fifteen (15) business days prior to the Closing Date
(as defined in Section 8), the Acquired Fund will provide to,
or cause to be provided to, the Acquiring Fund, a schedule of
its securities, other assets and its known liabilities. It is
understood and agreed that the Acquired Fund may sell any of
the securities or other assets shown on such schedule prior to
the Effective Time of the Reorganization but will not, without
the prior approval of the Acquiring Fund, acquire any
additional securities other than securities that the Acquiring
Fund is permitted to purchase in accordance with its stated
investment objective and policies. At least ten (10) business
days prior to the Closing Date, the Acquiring Fund will advise
the Acquired Fund of any investments of the Acquired Fund
shown on such schedule that the Acquiring Fund would not be
permitted to hold, pursuant to its stated investment objective
and policies or otherwise. The Acquired Fund, if requested by
the Acquiring Fund, will dispose of any such securities prior
to the Closing Date to the extent practicable and consistent
with applicable legal requirements. In addition, if it is
determined that the investment portfolios of the Acquired Fund
and Acquiring Fund, when aggregated, would contain investments
exceeding certain percentage limitations applicable to the
Acquiring Fund, the Acquired Fund, if requested by the
Acquiring Fund, will dispose of a sufficient amount of such
investments as may be necessary to avoid violating such
limitations as of the Effective Time of the Reorganization.
(d) The Fund Assets shall be transferred and conveyed to the
Acquiring Fund on the following basis:
(1) In exchange for the transfer of the Fund Assets, the
Acquiring Fund shall simultaneously issue to the Acquired
Fund at the Effective Time of the Reorganization full and
fractional Shares of the Acquiring Fund, as set forth in
Schedule A attached hereto, having an aggregate net asset
value equal to the net value of the Fund Assets minus
Liabilities so conveyed and assumed, all determined in
accordance with this Agreement. In this regard, the number
of full and fractional shares of the Acquiring Fund
delivered to the Acquired Fund shall be determined by
dividing the value of the Fund Assets minus Liabilities,
computed in the manner and as of the time and date set
forth in this Agreement, by the net asset value of one
Acquiring Fund share of such designated class, computed in
the manner and as of the time and date set forth in this
Agreement.
(2) The net asset value of shares to be delivered by the
Acquiring Fund, and the net value of the Fund Assets minus
Liabilities to be conveyed by the Acquired Fund and
assumed by the Acquiring Fund, shall, in each case, be
determined as of the Valuation Time as defined in Section
3. The net asset value of Shares of the Acquiring Fund
shall be computed in accordance with its then current
valuation procedures. In determining the value of the Fund
Assets, each security to be included in the Fund Assets
shall be priced in accordance with the Acquiring Fund's
then current valuation procedures.
2. Liquidation of the Acquired Fund. At the Effective Time of the
Reorganization, the Acquired Fund shall make a liquidating
distribution to its shareholders as follows: Shareholders of
record of the Acquired Fund shall be credited with full and
fractional shares of the respective Shares that are issued by the
Acquiring Fund in connection with the Reorganization corresponding
to the Acquired Fund shares that are held of record by the
shareholder at the Effective Time of the Reorganization. Each such
shareholder also shall have the right to receive any unpaid
dividends or other distributions which were declared before the
Effective Time of the Reorganization with respect to the Acquired
Fund shares that are held of record by the shareholder at the
Effective Time of the Reorganization, and Reserves shall record on
its books the ownership of the respective Acquiring Fund shares by
such shareholders (the "Transferor Record Holders"). All of the
issued and outstanding shares of the Acquired Fund at the
Effective Time of the Reorganization shall be redeemed and
canceled on the books of Reserves at such time. As soon as
reasonably possible after the Effective Time of the
Reorganization, the Company shall wind up the affairs of the
Acquired Fund and shall file any final regulatory reports,
including but not limited to any Form N-SAR and Rule 24f-2
filings, with respect to the Acquired Fund, and also shall take
all other steps as are necessary
and proper to effect the termination or declassification of the
Acquired Fund in accordance with all applicable laws.
3. Valuation Time. The "Valuation Time" shall be the time as of which
the net asset value of each class of shares of the Acquired Fund
and the Acquiring Fund is determined pursuant to their respective
valuation procedures on the Closing Date or such earlier or later
time as may be mutually agreed to in writing by the parties
hereto.
4. Certain Representations, Warranties and Agreements of the Company
on behalf of its Acquired Fund. The Company, on behalf of itself
and, where appropriate, its Acquired Fund, represents and warrants
to, and agrees with, Reserves on behalf of the Acquiring Fund as
follows, with such representations, warranties and agreements made
on behalf of the Acquired Fund on a several (and not joint, or
joint and several) basis:
(a) The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the state of
Maryland. The Company is registered with the SEC as an
open-end management investment company under the 1940 Act, and
such registration is in full force and effect.
(b) The Company has the power to own all of its properties and
assets and to consummate the transactions contemplated herein,
and has all necessary federal, state and local authorizations
to carry on its business as now being conducted and to
consummate the transactions contemplated by this Agreement.
(c) This Agreement has been duly authorized by the Board of
Directors of the Company on behalf of its Acquired Fund, and
has been executed and delivered by duly authorized officers of
the Company, and represents a valid and binding contract,
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 Agreement does not, and, subject to the approval of
shareholders referred to in Section 6, the consummation of the
transactions contemplated by this Agreement will not, violate
the Articles of Incorporation or the By-Laws of the Company,
or any material agreement or arrangement to which the Company
is a party or by which it is bound.
(d) The Company's Acquired Fund has elected to qualify and has
qualified as a regulated investment company under Part I of
Subchapter M of Subtitle A, Chapter 1, of the Code, as of and
since its first taxable year; has been a regulated investment
company under such Part of the Code at all times since the end
of its first taxable year when it so qualified; and qualifies
and shall continue to qualify as a regulated investment
company for its taxable year ending upon its liquidation.
(e) The Company has valued, and will continue to value, the
portfolio securities and other assets of its Acquired Fund in
accordance with applicable legal requirements.
(f) The proxy statement and form of proxy (the "Proxy Statement"),
from its effective date with the SEC through the time of the
shareholders meeting referred to in Section 6 and the
Effective Time of the Reorganization, insofar as they relate
to the Company, or the Acquired Fund (i) shall comply in all
material respects with the provisions of the Securities
Exchange Act of 1934 as amended (the "1934 Act") and the 1940
Act, the rules and regulations thereunder, and applicable
state securities laws, and (ii) shall 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 made therein not misleading.
(g) All of the issued and outstanding shares of the Company's
Acquired Fund have been validly issued and are fully paid and
non-assessable, and were offered for sale and sold in
conformity with the registration requirements of all
applicable federal and state securities laws.
(h) The Company shall operate the business of the Acquired Fund in
the ordinary course between the date hereof and the Effective
Time of the Reorganization, it being agreed that such ordinary
course of business will include the declaration and payment of
customary dividends and distributions and any other dividends
and distributions deemed advisable in anticipation of the
Reorganization. Notwithstanding anything herein to the
contrary, the Company may take all appropriate action
necessary in order for the Company to receive the opinion
provided for in Sections 9(e) and 10(g).
(i) At the Effective Time of the Reorganization, the Company's
Acquired Fund will have good and marketable title to the Fund
Assets and full right, power and authority to assign, deliver
and otherwise transfer such assets.
(j) At the Effective Time of the Reorganization, all federal and
other tax returns and reports of the Acquired Fund required by
law to have been filed by such time shall have been filed, and
all federal and other taxes shall have been paid so far as
due, or provision shall have been made for the payment thereof
and, to the best knowledge of management of the Company, no
such return or report shall be currently under audit and no
assessment shall have been asserted with respect to such
returns or reports.
5. Certain Representations, Warranties and Agreements of Reserves
on behalf of the Acquiring Fund. Reserves, on behalf of itself
and where appropriate, the Acquiring Fund, represents and
warrants to, and agrees with, the Company on behalf of the
Acquired Fund as follows, with such representations, warranties
and agreements made on behalf of the Acquiring Fund on a
several (and not joint, or joint and several) basis:
(a) Reserves is a business trust duly created, validly existing
and in good standing under the laws of The Commonwealth of
Massachusetts and is registered with the SEC as an open-end
management investment company under the 1940 Act and such
registration is in full force and effect.
(b) Reserves has the power to own all of its properties and assets
and to consummate the transactions contemplated herein, and
has all necessary federal, state and local authorizations to
carry on its business as now being conducted and to consummate
the transactions contemplated by this Agreement.
(c) This Agreement has been duly authorized by the Board of
Trustees of Reserves on behalf of the Acquiring Fund, and
executed and delivered by duly authorized officers of
Reserves, and represents a valid and binding contract,
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 Agreement does not, and the consummation of the
transactions contemplated by this Agreement will not, violate
the Declaration of Trust or By-Laws of Reserves or any
material agreement or arrangement to which it is a party or by
which it is bound.
(d) The Acquiring Fund has elected to qualify and has qualified as
a regulated investment company under Part I of Subchapter M of
Subtitle A, Chapter 1, of the Code, as of and since its first
taxable year; has been a regulated investment company under
such Part of the Code at all times since the end of its first
taxable year when it so qualified; and qualifies and shall
continue to qualify as a regulated investment company for its
current taxable year.
(e) Reserves has valued, and will continue to value, the portfolio
securities and other assets of the Acquiring Fund in
accordance with applicable legal requirements.
(f) The Proxy Statement, from its effective date with the SEC
through the time of the shareholders meeting referred to in
Section 6 and at the Effective Time of the Reorganization,
insofar as it relates to Reserves, or the Acquiring Fund, or
the Primary A Shares, Investor A Shares, Investor B Shares or
Investor C Shares of the Acquiring Fund to be issued pursuant
thereto (i) shall comply in all material respects with the
provisions of the Securities Act of 1933, as amended, (the
"1933 Act"), the 1934 Act and the 1940 Act, the rules and
regulations thereunder, and state securities laws, and (ii)
shall 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 made therein not misleading.
(g) The shares of the Acquiring Fund to be issued and delivered to
the Acquired Fund for the account of the shareholders of the
Acquired Fund, pursuant to the terms hereof, shall have been
duly authorized as of the Effective Time of the Reorganization
and, when so issued and delivered, 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 thereto.
(h) All of the issued and outstanding shares of the Acquiring Fund
have been validly issued and are fully paid and
non-assessable, and were offered for sale and sold in
conformity with the registration requirements of all
applicable federal and state securities laws.
(i) Reserves shall operate the business of the Acquiring Fund in
the ordinary course between the date hereof and the Effective
Time of the Reorganization, except that Reserves shall
complete all measures in respect of the Acquiring Fund prior
to the Effective Time of the Reorganization to ensure that the
Reorganization qualifies as a "reorganization" within the
meaning of Section 368 of the Code, regardless of whether such
measures are in the ordinary course. It is understood that
such ordinary course of business will include the declaration
and payment of customary dividends and distributions and any
other dividends and distributions deemed advisable in
anticipation of the Reorganization.
(j) At the Effective Time of the Reorganization, all federal and
other tax returns and reports of the Acquiring Fund required
by law to have been filed by such time shall have been filed,
and all federal and other taxes shall have been paid so far as
due, or provision shall have been made for the payment thereof
and, to the best knowledge of management of Reserves, no such
return or report shall be currently under audit and no
assessment shall have been asserted with respect to such
returns or reports.
6. Shareholder Action. As soon as practicable after the effective
date of the Proxy Statement the Company shall hold a meeting(s) of
the shareholders of the Acquired Fund for the purpose of
considering and voting upon:
(a) approval of this Agreement and the Reorganization contemplated
hereby; and
(b) such other matters as may be determined by the Board of
Directors of the Company.
7. Regulatory Filings. As soon as practicable, the Company shall file
a Proxy Statement with the SEC, and, where required, with
appropriate state securities regulatory authorities.
8. Closing Date, Effective Time of the Reorganization. The "Closing
Date" shall be _________, 2000, or such earlier or later date as
may be mutually agreed in writing by the parties hereto. Delivery
of the Fund Assets and the shares of the Acquiring Fund to be
issued pursuant to Section 1 and the liquidation of the Acquired
Fund pursuant to Section 2 shall occur on the
day following the Closing Date, whether or not such day is a
business day, or on such other date, and at such place and time,
as may be mutually agreed in writing, by the parties hereto. The
date and time at which such actions are taken are referred to
herein as the "Effective Time of the Reorganization." To the
extent any Fund Assets are, for any reason, not transferred at the
Effective Time of the Reorganization, the Company shall cause such
Fund Assets to be transferred in accordance with this Agreement at
the earliest practicable date thereafter.
9. Conditions to the Reserves's Obligations on Behalf of its
Acquiring Fund. The obligations of the Reserves hereunder shall be
subject to the following conditions precedent:
(a) This Agreement and the Reorganization shall have been approved
by the Board of Directors of the Company and by a majority of
the shareholders of its Acquired Fund in the manner required
by the Company's Articles of Incorporation, applicable law and
this Agreement.
(b) All representations and warranties of the Company made in this
Agreement shall be true and correct in all material respects
as if made at and as of the Valuation Time and the Effective
Time of the Reorganization.
(c) The Company shall have delivered to Reserves a statement of
assets and liabilities of the Acquired Fund, showing the tax
costs of such securities by lot and the holding periods of
such securities, as of the Valuation Time.
(d) The Company shall have duly executed and delivered to the
Company such bills of sale, assignments, certificates and
other instruments of transfer ("Transfer Documents") as
Reserves may deem necessary or desirable to transfer all of
the Acquired Fund's rights, title and interest in and to the
Fund Assets.
(e) The Company shall have delivered a certificate executed in its
name by its President or Vice President and its Treasurer or
Assistant Treasurer, in a form reasonably satisfactory and
dated as of the Closing Date, to the effect that the
representations and warranties of the Acquiring Fund made in
this Agreement are true and correct at and as of the Valuation
Time and that, to the best of its knowledge, the Fund Assets
include only assets which the Reserves's Acquiring Fund may
properly acquire under its investment objectives, policies and
limitations and may otherwise be lawfully acquired by such
Acquiring Fund.
(f) The Company shall have received an opinion of Morrison &
Foerster LLP, as counsel to the Company in form reasonably
satisfactory to Reserves and dated the Closing Date,
substantially to the effect that (i) the Company is a
corporation duly established and validly existing under the
laws of the state of Maryland; (ii) the shares of the
Acquiring Fund to be delivered to the Company's Acquired Fund
as provided for by this Agreement are duly authorized and upon
delivery will be validly issued, fully paid and non-assessable
by the Company; (iii) this Agreement has been duly authorized,
executed and delivered by the Company, and represents a legal,
valid and binding contract, enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and similar laws relating to
or affecting creditors' rights generally and court decisions
with respect thereto, and such counsel shall express no
opinion with respect to the application of equitable
principles in any proceeding whether at law or in equity; (iv)
the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated by this
Agreement will not, violate the Articles of Incorporation or
the By-Laws of the Company or any material contract known to
such counsel to which the Company is a party or by which it is
bound; and (v) no consent, approval, authorization or order of
any court or governmental authority is required for the
consummation by the Company of the transactions contemplated
by this Agreement,
except such as have been obtained under the 1933 Act, the 1934
Act, the 1940 Act, the rules and regulations under those Acts
and such as may be required by state securities laws or such
as may be required subsequent to the Effective Time of the
Reorganization. Such opinion may rely on the opinion of other
counsel to the extent set forth in such opinion, provided such
other counsel is reasonably acceptable to Reserves.
(g) The Company shall have received an opinion of Morrison &
Foerster LLP, based upon reasonable representations made in
certificates provided by the Company, its affiliates and/or
principal shareholders of the Company's Acquired Fund to
Morrison & Foerster LLP, addressed to the Company in a form
reasonably satisfactory to them, and dated the Closing Date,
with respect to the matters specified in Subsection 11(g).
(h) The Proxy Statement shall have become effective under the 1933
Act and no stop order suspending the effectiveness shall have
been instituted, or to the knowledge of the Company,
contemplated by the SEC.
(i) 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, this Agreement or the transactions
contemplated herein.
(j) The SEC shall not have issued any unfavorable advisory report
under Section 25(b) of the 1940 Act nor instituted any
proceeding seeking to enjoin consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940
Act.
(k) The Company on behalf of the Acquired Fund shall have
performed and complied in all material respects with each of
its agreements and covenants required by this Agreement to be
performed or complied with by it prior to or at the Valuation
Time and the Effective Time of the Reorganization.
(l) The Company shall have received a duly executed instrument
whereby the Acquiring Fund assumes all of the liabilities of
the Company's Acquired Fund.
10. Conditions to the Company's Obligations on behalf of the Acquired
Fund. The obligations of the Company hereunder shall be subject to
the following conditions precedent:
(a) This Agreement and the Reorganization shall have been approved
by the Board of Trustees of Reserves on behalf of the
Acquiring Fund and by a majority of the shareholders of the
Acquired Fund in the manner required by its charter documents,
applicable law and this Agreement.
(b) All representations and warranties of Reserves made in this
Agreement shall be true and correct in all material respects
as if made at and as of the Valuation Time and the Effective
Time of the Reorganization.
(c) Reserves shall have delivered a certificate executed in its
name by its President or Vice President and its Treasurer or
Assistant Treasurer, in a form reasonably satisfactory to the
Company and dated as of the Closing Date, to the effect that
the representations and warranties of the Acquired Fund made
in this Agreement are true and correct at and as of the
Valuation Time.
(d) Reserves shall have received an opinion of Morrison & Foerster
LLP, as counsel to Reserves, in a form reasonably satisfactory
to the Company and dated the Closing Date, substantially to
the effect that (i) Reserves is a business trust duly
established and validly existing under the laws of The
Commonwealth of Massachusetts; (ii) this Agreement has been
duly authorized, executed and delivered by Reserves and
represents a legal, valid and binding contract, enforceable in
accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance and
similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto, and such
counsel shall express no opinion with respect to the
application of equitable principles in any proceeding, whether
at law or in equity; (iii) the execution and delivery of this
Agreement did not, and the consummation of the transactions
contemplated by this Agreement will not, violate the
Declaration of Trust or By-Laws of Reserves or any material
contract known to such counsel to which Reserves is a party or
by which it is bound; and (iv) no consent, approval,
authorization or order of any court or governmental authority
is required for the consummation by Reserves of the
transactions contemplated by this Agreement, except such as
have been obtained under the 1933 Act, the 1934 Act, the 1940
Act, the rules and regulations under those Acts and such as
may be required under the state securities laws or such as may
be required subsequent to the Effective Time of the
Reorganization. Such opinion may rely on the opinion of other
counsel to the extent set forth in such opinion, provided such
other counsel is reasonably acceptable to Reserves.
(e) Reserves shall have received an opinion of Morrison & Foerster
LLP, based upon reasonable representations made in
certificates provided by Reserves, its affiliates and/or
principal shareholders of the Acquired Fund and/or the
Acquiring Fund, addressed to Reserves in a form reasonably
satisfactory to them, and dated the Closing Date,
substantially to the effect that, for federal income tax
purposes, the Reorganization will qualify as a
"reorganization," within the meaning of Section 368(a) of the
Code, and the Acquired Fund and the Acquiring Fund will each
be a "party to a reorganization," within the meaning of
Section 368(b) of the Code, with respect to the
Reorganization.
(f) The Fund Assets to be transferred to the Acquiring Fund under
this Agreement shall include no assets which the Acquiring
Fund may not properly acquire pursuant to its investment
objective, policies or restrictions or may not otherwise
lawfully acquire.
(g) The Proxy Statement shall have become effective under the 1933
Act and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of Reserves, contemplated
by the SEC.
(h) 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 this Agreement or the transactions
contemplated herein.
(i) The SEC shall not have issued any unfavorable advisory report
under Section 25(b) of the 1940 Act nor instituted any
proceeding seeking to enjoin consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940
Act.
(j) Reserves on behalf of the Acquiring Fund shall have performed
and complied in all material respects with each of its
agreements and covenants required by this Agreement to be
performed or complied with by it prior to or at the Valuation
Time and the Effective Time of the Reorganization.
11. Survival of Representations and Warranties. The representations
and warranties of Reserves on behalf of the Acquiring Fund set
forth in this Agreement shall survive the delivery of the Fund
Assets to the Acquiring Fund and the issuance of the shares of the
Acquiring Fund at the Effective Time of the Reorganization.
12. Termination of Agreement. This Agreement may be terminated by a
party at or, in the case of Subsection 12(c), below, at any time
prior to, the Effective Time of the Reorganization by a vote of a
majority of its Board members as provided below:
(a) By Reserves on behalf of the Acquiring Fund if the conditions
set forth in Section 10 are not satisfied as specified in said
Section;
(b) By the Company on behalf of its Acquired Fund if the
conditions set forth in Section 9 are not satisfied as
specified in said Section;
(c) By mutual written consent of Reserves and the Company.
13. Governing Law. This Agreement and the transactions contemplated
hereby shall be governed, construed and enforced in accordance
with the laws of the State of Maryland, except to the extent
preempted by federal law.
14. Brokerage Fees and Expenses.
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(a) Reserves represents and warrants that there are no brokers or
finders entitled to receive any payments in connection with
the transactions provided for herein.
(b) Banc of America Advisors, Inc. and/or its affiliates will be
responsible for the expenses related to entering into and
carrying out the provisions of this Agreement, whether or not
the transactions contemplated hereby are consummated.
15. Amendments
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This Agreement may be amended, modified or supplemented in such
manner as may be mutually agreed upon in writing by the authorized
officers of the Company, acting on behalf of the Acquired Fund or
Reserves, acting on behalf of the Acquiring Fund; provided,
however, that following the meeting of the shareholders of the
Acquired Fund, no such amendment may have the effect of changing
the provisions for determining the number of shares of the
Acquiring Fund to be issued to the Transferor Record Holders under
this Agreement to the detriment of such Transferor Record Holders,
or otherwise materially and adversely affecting the Acquired Fund,
without the Acquired Fund obtaining its shareholders' further
approval:
(a) At any time prior to or (to the fullest extent permitted by
law) after approval of this Agreement by the shareholders of
the Acquired Fund, the Company on behalf of its Acquired Fund,
may waive any breach by Reserves, on behalf of the Acquiring
Fund, or the failure to satisfy any of the conditions to its
obligations (such waiver to be in writing and signed by an
officer of such registered investment companies);
(b) At any time prior to or (to the fullest extent permitted by
law) after approval of this Agreement by the shareholders of
the Acquired Fund, Reserves, on behalf of the Acquiring Fund,
may waive any breach by the Company on behalf of its Acquired
Fund, or the failure to satisfy any of the conditions to
either of their obligations (such waiver to be in writing and
signed by an officer of such registered investment companies).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers designated below as of the date first
written above.
NATIONS FUND, INC.
On behalf of its Acquired Fund identified on Schedule A
By:____________________________________________
Richard H. Blank, Jr.
Secretary and Treasurer
NATIONS RESERVES
On behalf of its Acquiring Fund identified on Schedule A
By:____________________________________________
Richard H. Blank, Jr.
Secretary and Treasurer
SCHEDULE A
SHAREHOLDERS OWNING SHARES OF THE WOULD RECEIVE SHARES OF THE
FOLLOWING ACQUIRED FUND AND CLASSES OF FOLLOWING ACQUIRING FUND AND
THE COMPANY: CLASSES OF RESERVES:
Nations International Growth Fund |_| Nations International Equity Fund
Primary A Shares Primary A Shares
Investor A Shares Investor A Shares
Investor B Shares Investor B Shares
Investor C Shares Investor C Shares