SUB-ITEM 77Q1(g)
TAX-FREE INVESTMENTS CO.
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"), dated as of
July 30, 2003, by and between Tax-Free Investments Co., a Maryland corporation
(the "Company"), acting on its own behalf and on behalf of each of its series
portfolios, all of which are identified on Schedule A to this Agreement, and
Tax-Free Investments Trust, a Delaware statutory trust (the "Trust"), acting on
its own behalf and on behalf of each of its series portfolios, all of which are
identified on Schedule A.
BACKGROUND
The Company is organized as a series management investment company and
is registered with the Securities and Exchange Commission under the Investment
Company Act of 1940, as amended. The Company currently publicly offers shares
of common stock representing interests in one or more separate series
portfolios. Each of these series portfolios is listed on Schedule A and is
referred to in this Agreement as a "Current Fund."
The Board of Directors of the Company has designated multiple classes
of common stock that represent interests in each Current Fund. Each of these
classes is listed on Schedule B to this Agreement and is referred to in this
Agreement as a "Current Fund Class."
The Company desires to change its form and place of organization by
reorganizing as the Trust. In anticipation of such reorganization, the Board of
Trustees of the Trust has established a series portfolio corresponding to each
of the Current Funds (each a "New Fund"), and has designated multiple classes
of shares of beneficial interest in each New Fund corresponding to the Current
Fund Classes (each a "New Fund Class"). Schedule A lists the New Funds and
Schedule B lists the New Fund Classes.
Each Current Fund desires to provide for its Reorganization (each, a
"Reorganization" and collectively, the "Reorganizations") through the transfer
of all of its assets to the corresponding New Fund in exchange for the
assumption by such New Fund of the liabilities of the corresponding Current
Fund and the issuance by the Trust to such Current Fund of shares of beneficial
interest in the New Fund ("New Fund Shares"). New Fund Shares received by a
Current Fund will have an aggregate net asset value equal to the aggregate net
asset value of the shares of the Current Fund immediately prior to the
Reorganization (the "Current Fund Shares"). Each Current Fund will then
distribute the New Fund Shares it has received to its shareholders.
Each Reorganization of each Current Fund is dependent upon the
consummation of the Reorganization of all of the other Current Funds, so that
the Reorganizations of all of the Current Funds must be consummated if any of
them are to be consummated. For convenience, the balance of this Agreement
refers only to a single Reorganization, but the terms and conditions hereof
shall apply separately to each Reorganization and to the Current Fund and the
corresponding New Fund participating therein, as applicable.
The Reorganization is subject to, and shall be effected in accordance
with, the terms of this Agreement. This Agreement is intended to be and is
adopted by the Company, on its own behalf and on behalf of the Current Funds,
and by the Trust, on its own behalf and on behalf of
the New Funds, as a Plan of Reorganization within the meaning of the
regulations under Section 368(a) of the Internal Revenue Code of 1986, as
amended.
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS.
Any capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the preamble or background to this Agreement. In
addition, the following terms shall have the following meanings:
1.1 "Assets" shall mean all assets including, without limitation, all
cash, cash equivalents, securities, receivables (including interest and
dividends receivable), claims and rights of action, rights to register shares
under applicable securities laws, books and records, deferred and prepaid
expenses shown as assets on a Current Fund's books, and other property owned by
a Current Fund at the Effective Time.
1.2 "Closing" shall mean the consummation of the transfer of Assets,
assumption of Liabilities and issuance of shares described in Sections 2.1 and
2.2 of this Agreement, together with the related acts necessary to consummate
the Reorganization, to occur on the date set forth in Section 3.1.
1.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.4 "Current Fund" shall mean each of the series portfolios of the
Company as shown on Schedule A.
1.5 "Current Fund Class" shall mean each class of common stock of the
Company representing an interest in a Current Fund as shown on Schedule B.
1.6 "Current Fund Shares" shall mean the shares of a Current Fund
outstanding immediately prior to the Reorganization.
1.7 "Effective Time" shall have the meaning set forth in Section 3.1.
1.8 "Liabilities" shall mean all liabilities of a Current Fund
including, without limitation, all debts, obligations, and duties of whatever
kind or nature, whether absolute, accrued, contingent, or otherwise, whether or
not determinable at the Effective Time, and whether or not specifically
referred to herein.
1.9 "New Fund" shall mean each of the series portfolios of the Trust,
one of which shall correspond to one of the Current Funds as shown on
Schedule A.
1.10 "New Fund Class" shall mean each class of shares of beneficial
interest in a New Fund, one of which shall correspond to one of the Current
Fund Classes as shown on Schedule B.
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1.11 "New Fund Shares" shall mean those shares of beneficial interest
in a New Fund issued to a Current Fund hereunder.
1.12 "Registration Statement" shall have the meaning set forth in
Section 5.4.
1.13 "RIC" shall mean a "regulated investment company" (as defined
under Subchapter M of the Code).
1.14 "SEC" shall mean the Securities and Exchange Commission.
1.15 "Shareholder(s)" shall mean a Current Fund's shareholder(s) of
record, determined as of the Effective Time.
1.16 "Shareholders Meeting" shall have the meaning set forth in
Section 5.1.
1.17 "Transfer Agent" shall have the meaning set forth in Section 2.2.
1.18 "1940 Act" shall mean the Investment Company Act of 1940, as
amended.
2. PLAN OF REORGANIZATION.
2.1 The Company agrees, on behalf of each Current Fund, to assign,
sell, convey, transfer and deliver all of the Assets of each Current Fund to
its corresponding New Fund. The Trust, on behalf of each New Fund, agrees in
exchange therefor:
(a) to issue and deliver to the corresponding Current Fund the number
of full and fractional (rounded to the third decimal place) New
Fund Shares of each New Fund Class designated on Schedule B equal
to the number of full and fractional Current Fund Shares of each
corresponding Current Fund Class designated on Schedule B; and
(b) to assume all of the Current Fund's Liabilities.
Such transactions shall take place at the Closing.
2.2 At the Effective Time (or as soon thereafter as is reasonably
practicable), (a) the New Fund Shares issued pursuant to Section 5.2 shall be
redeemed by each New Fund for $10.00 and (b) each Current Fund shall distribute
the New Fund Shares received by it pursuant to Section 2.1 to the Current
Fund's Shareholders in exchange for such Shareholders' Current Fund Shares.
Such distribution shall be accomplished through opening accounts, by the
transfer agent for the Trust (the "Transfer Agent"), on each New Fund's share
transfer books in the Shareholders' names and transferring New Fund Shares to
such accounts. Each Shareholder's account shall be credited with the respective
pro rata number of full and fractional (rounded to the third decimal place) New
Fund Shares of each New Fund Class due that Shareholder. All outstanding
Current Fund Shares, including those represented by certificates, shall
simultaneously be canceled on each Current Fund's share transfer books. The
Trust shall not issue certificates representing the New Fund Shares in
connection with the Reorganization. However, certificates representing Current
Fund Shares shall represent New Fund Shares after the Reorganization.
2.3 Following receipt of the required shareholder vote and as soon as
reasonably practicable after the Closing, the status of each Current Fund as a
designated series of the Company shall be terminated; provided, however, that
the termination of each Current Fund as
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a designated series of the Company shall not be required if the Reorganization
shall not have been consummated.
2.4 Following receipt of the required shareholder vote and as soon as
reasonably practicable after distribution of the New Fund Shares pursuant to
Section 2.2, the Company and the Trust shall cause Articles of Transfer to be
filed with the State Department of Assessments and Taxation of Maryland and,
following the filing of Articles of Transfer, the Company shall file Articles
of Dissolution with the State Department of Assessments and Taxation of
Maryland to dissolve the Company as a Maryland corporation; provided, however,
that the filing of Articles of Transfer and Articles of Dissolution as
aforesaid shall not be required if the Reorganization shall not have been
consummated.
2.5 Any transfer taxes payable on issuance of New Fund Shares in a
name other than that of the registered holder of the Current Fund Shares
exchanged therefor shall be paid by the person to whom such New Fund Shares are
to be issued, as a condition of such transfer.
2.6 Any reporting responsibility of the Company or each Current Fund
to a public authority is and shall remain its responsibility up to and
including the date on which it is terminated.
3. CLOSING.
3.1 The Closing shall occur at the principal office of the Company on
November 4, 2003, or on such other date and at such other place upon which the
parties may agree. All acts taking place at the Closing shall be deemed to take
place simultaneously as of the Company's and the Trust's close of business on
the date of the Closing or at such other time as the parties may agree (the
"Effective Time").
3.2 The Company or its fund accounting agent shall deliver to the
Trust at the Closing, a certificate of an authorized officer verifying that the
information (including adjusted basis and holding period, by lot) concerning
the Assets, including all portfolio securities, transferred by the Current
Funds to the New Funds, as reflected on the New Funds' books immediately
following the Closing, does or will conform to such information on the Current
Funds' books immediately before the Closing. The Company shall cause the
custodian for each Current Fund to deliver at the Closing a certificate of an
authorized officer of the custodian stating that (a) the Assets held by the
custodian will be transferred to each corresponding New Fund at the Effective
Time and (b) all necessary taxes in conjunction with the delivery of the
Assets, including all applicable federal and state stock transfer stamps, if
any, have been paid or provision for payment has been made.
3.3 The Company shall deliver to the Trust at the Closing a list of
the names and addresses of each Shareholder of each Current Fund and the number
of outstanding Current Fund Shares of the Current Fund Class owned by each
Shareholder, all as of the Effective Time, certified by the Company's Secretary
or Assistant Secretary. The Trust shall cause the Transfer Agent to deliver at
the Closing a certificate as to the opening on each New Fund's share transfer
books of accounts in the Shareholders' names. The Trust shall issue and deliver
a confirmation to the Company evidencing the New Fund Shares to be credited to
each corresponding Current Fund at the Effective Time or provide evidence
satisfactory to the Company that such shares have been credited to each Current
Fund's account on such books. At the Closing, each party shall deliver to the
other such bills of sale, checks, assignments,
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stock certificates, receipts, or other documents as the other party or its
counsel may reasonably request.
3.4 The Company and the Trust shall deliver to the other at the
Closing a certificate executed in its name by its President or a Vice President
in form and substance satisfactory to the recipient and dated the Effective
Time, to the effect that the representations and warranties it made in this
Agreement are true and correct at the Effective Time except as they may be
affected by the transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES.
4.1 The Company represents and warrants on its own behalf and on
behalf of each Current Fund as follows:
(a) The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Maryland, and
its Charter is on file with the Maryland Department of
Assessments and Taxation;
(b) The Company is duly registered as an open-end series management
investment company under the 1940 Act, and such registration is
in full force and effect;
(c) Each Current Fund is a duly established and designated series of
the Company;
(d) At the Closing, each Current Fund will have good and marketable
title to its Assets and full right, power, and authority to sell,
assign, transfer, and deliver its Assets free of any liens or
other encumbrances; and upon delivery and payment for the Assets,
the corresponding New Fund will acquire good and marketable title
to the Assets;
(e) The New Fund Shares are not being acquired for the purpose of
making any distribution thereof, other than in accordance with
the terms hereof;
(f) Each Current Fund is a "fund" as defined in Section 851(g)(2) of
the Code; each Current Fund qualified for treatment as a RIC for
each taxable year since it commenced operations that has ended
(or will end) before the Closing and will continue to meet all
the requirements for such qualification for its current taxable
year (and the Assets will be invested at all times through the
Effective Time in a manner that ensures compliance with the
foregoing); each Current Fund has no earnings and profits
accumulated in any taxable year in which the provisions of
Subchapter M did not apply to it; and each Current Fund has made
all distributions for each calendar year that has ended (or will
end) before the Closing that are necessary to avoid the
imposition of federal excise tax or has paid or provided for the
payment of any excise tax imposed for any such calendar year;
(g) During the five-year period ending on the date of the
Reorganization, neither Company nor any person related to Company
(as defined in Section 1.368-1(e)(3) of the Federal income tax
regulations adopted pursuant to the Code without regard to
Section 1.368-1(e)(3)(i)(A)) will have directly or through any
transaction, agreement, or arrangement with any other person, (i)
acquired shares of a Current Fund
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for consideration other than shares of such Current Fund, except
for shares redeemed in the ordinary course of such Current Fund's
business as an open-end investment company as required by the
1940 Act, or (ii) made distributions with respect to a Current
Fund's shares, except for (a) distributions necessary to satisfy
the requirements of Sections 852 and 4982 of the Code for
qualification as a regulated investment company and avoidance of
excise tax liability and (b) additional distributions, to the
extent such additional distributions do not exceed 50 percent of
the value (without giving effect to such distributions) of the
proprietary interest in such Current Fund at the Effective Time.
There is no plan or intention of the Shareholders who
individually own 5% or more of any Current Fund Shares and, to
the best of the Company's knowledge, there is no plan or
intention of the remaining Shareholders to redeem or otherwise
dispose of any New Fund Shares to be received by them in the
Reorganization. The Company does not anticipate dispositions of
those shares at the time of or soon after the Reorganization to
exceed the usual rate and frequency of redemptions of shares of
the Current Fund as a series of an open-end investment company.
Consequently, the Company is not aware of any plan that would
cause the percentage of Shareholder interests, if any, that will
be disposed of as a result of or at the time of the
Reorganization to be one percent (1%) or more of the shares of
the Current Fund outstanding as of the Effective Time;
(h) The Liabilities were incurred by the Current Funds in the
ordinary course of their business and are associated with the
Assets;
(i) The Company is not under the jurisdiction of a court in a
proceeding under Title 11 of the United States Code or similar
case within the meaning of Section 368(a)(3)(A) of the Code;
(j) As of the Effective Time, no Current Fund will have outstanding
any warrants, options, convertible securities, or any other type
of rights pursuant to which any person could acquire Current Fund
Shares except for the right of investors to acquire its shares at
net asset value in the normal course of its business as a series
of an open-end diversified management investment company
operating under the 1940 Act;
(k) At the Effective Time, the performance of this Agreement shall
have been duly authorized by all necessary action by the
Company's shareholders;
(l) Throughout the five-year period ending on the date of the
Closing, each Current Fund will have conducted its historic
business within the meaning of Section 1.368-1(d) of the Income
Tax Regulations under the Code in a substantially unchanged
manner;
(m) The fair market value of the Assets of each Current Fund
transferred to the corresponding New Fund will equal or exceed
the sum of the Liabilities assumed by the New Fund plus the
amount of Liabilities, if any, to which the transferred Assets
are subject; and
(n) The total adjusted basis of the Assets of each Current Fund
transferred to the corresponding New Fund will equal or exceed
the sum of the Liabilities assumed by the New Fund plus the
amount of Liabilities, if any, to which the transferred assets
are subject.
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4.2 The Trust represents and warrants on its own behalf and on behalf
of each New Fund as follows:
(a) The Trust is a statutory trust duly organized, validly existing,
and in good standing under the laws of the State of Delaware, and
its Certificate of Trust has been duly filed in the office of the
Secretary of State of Delaware;
(b) At the Effective Time, the Trust will succeed to the Company's
registration statement filed under the 1940 Act with the SEC and
thus will become duly registered as an open-end management
investment company under the 1940 Act;
(c) At the Effective Time, each New Fund will be a duly established
and designated series of the Trust;
(d) No New Fund has commenced operations nor will it commence
operations until after the Closing;
(e) Prior to the Effective Time, there will be no issued and
outstanding shares in any New Fund or any other securities issued
by the Trust on behalf of any New Fund, except as provided in
Section 5.2;
(f) No consideration other than New Fund Shares (and each New Fund's
assumption of the Liabilities) will be issued in exchange for the
Assets in the Reorganization;
(g) The New Fund Shares to be issued and delivered to each
corresponding Current Fund hereunder will, at the Effective Time,
have been duly authorized and, when issued and delivered as
provided herein, will be duly and validly issued and outstanding
shares of the New Fund, fully paid and nonassessable;
(h) Each New Fund will be a "fund" as defined in Section 851(g)(2) of
the Code and will meet all the requirements to qualify for
treatment as a RIC for its taxable year in which the
Reorganization occurs;
(i) The Trust, on behalf of the New Funds, has no plan or intention
to issue additional New Fund Shares following the Reorganization
except for shares issued in the ordinary course of its business
as an open-end investment company; nor does the Trust, on behalf
of the New Funds, have any plan or intention to redeem or
otherwise reacquire any New Fund Shares issued pursuant to the
Reorganization, other than in the ordinary course of such
business or to the extent necessary to comply with its legal
obligation under Section 22(e) of the 1940 Act;
(j) Each New Fund will actively continue the corresponding Current
Fund's business in substantially the same manner that the Current
Fund conducted that business immediately before the
Reorganization; and no New Fund has any plan or intention to sell
or otherwise dispose of any of the Assets, except for
dispositions made in the ordinary course of its business or
dispositions necessary to maintain its qualification as a RIC,
although in the ordinary course of its business the New Fund will
continuously review its investment portfolio (as each Current
Fund did before the Reorganization) to determine whether to
retain or dispose of particular stocks or
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securities, including those included in the Assets, provided,
however that this Section 4.2(j) shall not preclude any of the
combinations of funds set forth on Schedule C to this Agreement;
and
(k) There is no plan or intention for any of the New Funds to be
dissolved or merged into another corporation or statutory trust
or "fund" thereof (within the meaning of Section 851(g)(2) of the
Code) following the Reorganization, provided, however that this
Section 4.2(k) shall not preclude any of the combinations of
Funds set forth on Schedule C.
4.3 Each of the Company and the Trust, on its own behalf and on behalf
of each Current Fund or each New Fund, as appropriate, represents and warrants
as follows:
(a) The fair market value of the New Fund Shares of each New Fund
received by each Shareholder will be equal to the fair market
value of the Current Fund Shares of the corresponding Current
Fund surrendered in exchange therefor;
(b) Immediately following consummation of the Reorganization, the
Shareholders will own all the New Fund Shares of each New Fund
and will own such shares solely by reason of their ownership of
the Current Fund Shares of the corresponding Current Fund
immediately before the Reorganization;
(c) The Shareholders will pay their own expenses, if any, incurred in
connection with the Reorganization;
(d) There is no intercompany indebtedness between a Current Fund and
a New Fund that was issued or acquired, or will be settled, at a
discount; and
(e) Immediately following consummation of the Reorganization, each
New Fund will hold the same assets, except for assets distributed
to shareholders in the course of its business as a RIC and assets
used to pay expenses incurred in connection with the
Reorganization, and be subject to the same liabilities that the
corresponding Current Fund held or was subject to immediately
prior to the Reorganization. Assets used to pay (i) expenses,
(ii) all redemptions (other than redemptions at the usual rate
and frequency of the Current Fund as a series of an open-end
investment company), and (iii) distributions (other than regular,
normal distributions), made by a Current Fund after the date of
this Agreement will, in the aggregate, constitute less than one
percent (1%) of its net assets.
5. COVENANTS.
5.1 As soon as practicable after the date of this Agreement, the
Company shall call a meeting of its shareholders (the "Shareholders Meeting")
to consider and act on this Agreement and, in connection therewith, the sale of
all of the Company's assets and the dissolution of the Company as a Maryland
corporation. The Board of Directors of the Company shall recommend that
shareholders approve this Agreement and, in connection therewith, sale of all
of the Company's assets and the dissolution of the Company as a Maryland
corporation. Approval by shareholders of this Agreement will authorize the
Company, and the Company hereby agrees, to vote on the matters referred to in
Sections 5.2 and 5.3.
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5.2 Prior to the Closing, the Company shall acquire one New Fund Share
in each New Fund Class of each New Fund for the purpose of enabling the Company
to elect the Company's directors as the Trust's trustees (to serve without
limit in time, except as they may resign or be removed by action of the Trust's
trustees or shareholders), to ratify the selection of the Trust's independent
accountants, and to vote on the matters referred to in Section 5.3.
5.3 Immediately prior to the Closing, the Trust (on its own behalf and
with respect to each New Fund or each New Fund Class, as appropriate) shall
enter into a Master Investment Advisory Agreement, a Master Sub-Advisory
Agreement, if applicable, a Master Administrative Services Agreement, Master
Distribution Agreements, a Custodian Agreement, and a Transfer Agency and
Servicing Agreement; shall adopt plans of distribution pursuant to Rule 12b-l
of the 1940 Act, a multiple class plan pursuant to Rule 18f-3 of the 1940 Act;
and shall enter into or adopt, as appropriate, such other agreements and plans
as are necessary for each New Fund's operation as a series of an open-end
investment company. Each such agreement and plan shall have been approved by
the Trust's trustees and, to the extent required by law, by such of those
trustees who are not "interested persons" of the Trust (as defined in the 0000
Xxx) and by the Company as the sole shareholder of each New Fund.
5.4 The Company or the Trust, as appropriate, shall file with the SEC
one or more post-effective amendments to the Company's Registration Statement
on Form N-lA under the Securities Act of 1933, as amended, and the 1940 Act, as
amended (the "Registration Statement"), (i) which contain such amendments to
such Registration Statement as are determined by the Company to be necessary
and appropriate to effect the Reorganization and (ii) pursuant to which the
Trust adopts such Registration Statement, as so amended, as its own, and shall
use its best efforts to have such post-effective amendment or amendments to the
Registration Statement become effective as of the Closing.
6. CONDITIONS PRECEDENT.
The obligations of the Company, on its own behalf and on behalf of
each Current Fund, and the Trust, on its own behalf and on behalf of each New
Fund, will be subject to (a) performance by the other party of all its
obligations to be performed hereunder at or before the Effective Time, (b) all
representations and warranties of the other party contained herein being true
and correct in all material respects as of the date hereof and, except as they
may be affected by the transactions contemplated hereby, as of the Effective
Time, with the same force and effect as if made on and as of the Effective
Time, and (c) the further conditions that, at or before the Effective Time:
6.1 The shareholders of the Company shall have approved this Agreement
and the transactions contemplated by this Agreement in accordance with
applicable law.
6.2 All necessary filings shall have been made with the SEC and state
securities authorities, and no order or directive shall have been received that
any other or further action is required to permit the parties to carry out the
transactions contemplated hereby. All consents, orders, and permits of federal,
state, and local regulatory authorities (including the SEC and state securities
authorities) deemed necessary by either the Company or the Trust to permit
consummation, in all material respects, of the transactions contemplated hereby
shall have been obtained, except where failure to obtain such consults, orders,
and permits would not involve a risk of a material adverse effect on the assets
or properties of either a Current Fund or
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a New Fund, provided that either the Company or the Trust may for itself waive
any of such conditions.
6.3 Each of the Company and the Trust shall have received an opinion
from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP as to the federal income tax
consequences mentioned below. In rendering such opinion, such counsel may rely
as to factual matters, exclusively and without independent verification, on the
representations made in this Agreement (or in separate letters of
representation that the Company and the Trust shall use their best efforts to
deliver to such counsel) and the certificates delivered pursuant to Section
3.4. Such opinion shall be substantially to the effect that, based on the facts
and assumptions stated therein and conditioned on consummation of the
Reorganization in accordance with this Agreement, for federal income tax
purposes:
(a) The Reorganization will constitute a reorganization within the
meaning of section 368(a) of the Code, and each Current Fund and
each New Fund will be "a party to a reorganization" within the
meaning of section 368(b) of the Code;
(b) No gain or loss will be recognized to a Current Fund on the
transfer of its Assets to the corresponding New Fund in exchange
solely for the New Fund's New Fund Shares and the New Fund's
assumption of the Current Fund's Liabilities or on the subsequent
distribution of those New Fund Shares to its Shareholders, in
constructive exchange for their Current Fund Shares, in
liquidation of the Current Fund;
(c) No gain or loss will be recognized to a New Fund on its receipt
of the corresponding Current Fund's Assets in exchange for New
Fund Shares and its assumption of the Current Fund's Liabilities;
(d) Each New Fund's basis for the corresponding Current Fund's Assets
will be the same as the basis thereof in the Current Fund's hands
immediately before the Reorganization, and the New Fund's holding
period for those Assets will include the Current Fund's holding
period therefor;
(e) A Shareholder will recognize no gain or loss on the constructive
exchange of Current Fund Shares solely for New Fund Shares
pursuant to the Reorganization; and
(f) A Shareholder's basis for the New Fund Shares of each New Fund to
be received in the Reorganization will be the same as the basis
for the Current Fund Shares of the corresponding Current Fund to
be constructively surrendered in exchange for such New Fund
Shares, and a Shareholder's holding period for such New Fund
Shares will include its holding period for such Current Fund
Shares, provided that such Current Fund Shares are held as
capital assets by the Shareholder at the Effective Time.
6.4 No stop-order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened by the SEC (and not withdrawn or terminated).
At any time prior to the Closing, any of the foregoing conditions
(except those set forth in Sections 6.1 and 6.3) may be waived by the
directors/trustees of either the Company or the
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Trust if, in their judgment, such waiver will not have a material adverse
effect on the interests of the Current Fund's Shareholders.
7. EXPENSES.
Except as otherwise provided in Section 4.3(c), all expenses incurred
in connection with the transactions contemplated by this Agreement (regardless
of whether they are consummated) will be borne by the parties as they mutually
agree.
8. ENTIRE AGREEMENT.
Neither party has made any representation, warranty, or covenant not
set forth herein, and this Agreement constitutes the entire agreement between
the parties.
9. AMENDMENT.
This Agreement may be amended, modified, or supplemented at any time,
notwithstanding its approval by the Company's shareholders, in such manner as
may be mutually agreed upon in writing by the parties; provided that following
such approval no such amendment shall have a material adverse effect on the
shareholders' interests.
10. TERMINATION.
This Agreement may be terminated at any time at or prior to the
Effective Time, whether before or after approval by the Company's shareholders:
10.1 By either the Company or the Trust (a) in the event of the other
party's material breach of any representation, warranty, or covenant contained
herein to be performed at or prior to the Effective Time, (b) if a condition to
its obligations has not been met and it reasonably appears that such condition
will not or cannot be met, or (c) if the Closing has not occurred on or before
December 31, 2003; or
10.2 By the parties' mutual agreement.
Except as otherwise provided in Section 7, in the event of termination
under Sections 10.1(c) or 10.2, there shall be no liability for damages on the
part of either the Company or the Trust or any Current Fund or corresponding
New Fund, to the other.
11. MISCELLANEOUS.
11.1 This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware; provided that, in the case of
any conflict between such laws and the federal securities laws, the latter
shall govern.
11.2 Nothing expressed or implied herein is intended or shall be
construed to confer upon or give any person, firm, trust, or corporation other
than the parties and their respective successors and assigns any rights or
remedies under or by reason of this Agreement.
11.3 The execution and delivery of this Agreement have been authorized
by the Trust's trustees, and this Agreement has been executed and delivered by
a duly authorized
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officer of the Trust in his or her capacity as an officer of the Trust
intending to bind the Trust as provided herein, and no officer, trustee or
shareholder of the Trust shall be personally liable for the liabilities or
obligations of the Trust incurred hereunder. The liabilities and obligations of
the Trust pursuant to this Agreement shall be enforceable against the assets of
the New Funds only and not against the assets of the Trust generally.
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IN WITNESS WHEREOF, each party has caused this Agreement to be
executed and delivered by its duly authorized officers as of the day and year
first written above.
Attest: TAX-FREE INVESTMENTS CO.,
on behalf of each of its series
listed in Schedule A
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- ----------------------------
Title: President
Attest: TAX-FREE INVESTMENTS TRUST,
on behalf of each of its series
listed in Schedule A
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- ----------------------------
Title: President
13
SCHEDULE A
SERIES OF TAX-FREE INVESTMENTS CO. CORRESPONDING SERIES OF TAX-FREE
(EACH A "CURRENT FUND") INVESTMENTS TRUST (EACH A "NEW FUND")
Cash Reserve Portfolio Tax-Free Cash Reserve Portfolio
A-1
SCHEDULE B
CLASSES OF EACH CURRENT FUND CORRESPONDING CLASSES OF EACH NEW FUND
Cash Reserve Portfolio Tax-Free Cash Reserve Portfolio
Cash Management Class Share Cash Management Class Share
Institutional Class Shares Institutional Class Shares
Personal Investment Class Shares Personal Investment Class Shares
Private Investment Class Shares Private Investment Class Shares
Reserve Class Shares Reserve Class Shares
Resource Class Shares Resource Class Shares
Sweep Class Shares Sweep Class Shares
B-1
SCHEDULE C
PERMITTED COMBINATIONS OF FUNDS
INVESCO Advantage Fund into AIM Opportunities III Fund
INVESCO Growth Fund into AIM Large Cap Growth Fund
INVESCO Growth & Income Fund into AIM Blue Chip Fund
INVESCO European Fund into AIM European Growth Fund
AIM International Core Equity Fund into INVESCO International
Blue Chip Value Fund
AIM New Technology Fund into INVESCO Technology Fund
AIM Global Science and Technology Fund into INVESCO Technology Fund
INVESCO Telecommunications Fund into INVESCO Technology Fund
AIM Global Financial Services Fund into INVESCO Financial Services Fund
AIM Global Energy Fund into INVESCO Energy Fund
AIM Global Utilities Fund into INVESCO Utilities Fund
INVESCO Real Estate Opportunity Fund into AIM Real Estate Fund
INVESCO Tax-Free Bond Fund into AIM Municipal Bond Fund
INVESCO High Yield Fund into AIM High Yield Fund
INVESCO Select Income Fund into AIM Income Fund
INVESCO U.S. Government Securities Fund into AIM Intermediate Government Fund
INVESCO Cash Reserves Fund into AIM Money Market Fund
INVESCO Tax-Free Money Fund into AIM Tax-Exempt Cash Fund
INVESCO Balanced Fund into INVESCO Total Return Fund
INVESCO Value Equity Fund into AIM Large Cap Basic Value Fund
AIM Premier Equity Fund II into AIM Premier Equity Fund
C-1