Agreement and Plan of Reorganization and Liquidation
Agreement
and Plan of Reorganization and Liquidation
AGREEMENT
AND PLAN OF REORGANIZATION AND LIQUIDATION (“Agreement”) is made as of the 1st
day of June, 1999 by and between Nuveen Premium Income Municipal Fund 4, Inc.
(the “Acquiring Fund”), a Minnesota corporation, and Nuveen Washington Premium
Income Municipal Fund, a business trust formed under the laws of the
Commonwealth of Massachusetts (the “Acquired Fund” and, together with the
Acquiring Fund, the “Funds”). Each of the Funds maintains its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This
Agreement is intended to be, and is adopted as, a plan of reorganization (the
“Reorganization”) pursuant to Section 368(a)(1) of the Internal Revenue Code of
1986, as amended (the “Internal Revenue Code”). The Reorganization will consist
of (a) the acquisition by the Acquiring Fund of substantially all of the assets
of the Acquired Fund in exchange solely for common shares, par value $01 per
share, of the Acquiring Fund (“Acquiring Fund Common Shares”), shares of
Municipal Auction Rate Cumulative Preferred Shares, par value $.01 per share
(“Muni Preferred®”), of the Acquiring Fund (“Acquiring Fund MuniPreferred” and,
collectively with the Acquiring Fund Common Shares, “Acquiring Fund Shares”) and
the assumption by the Acquiring Fund of substantially all of the liabilities of
the Acquired Fund, and (b) the pro rata distribution, after
the Closing Date hereinafter referred to, of such Acquiring Fund Shares to the
shareholders of the Acquired Fund in liquidation of the Acquired Fund as
provided herein, all upon the terms and conditions hereinafter set forth in this
Agreement.
In
consideration of the premises and of the covenants and agreements set forth
herein, the parties covenant and agree as follows:
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1.
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Transfer
of Assets of the Acquired Fund in Exchange for Shares of the Acquiring
Fund and Assumption of Liabilities, if Any; Liquidation of the Acquired
Fund.
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1.1 Subject
to the terms and conditions herein set forth and on the basis of the
representations and warranties contained herein, the Acquired Fund agrees to
sell, assign, transfer and deliver, as of the close of business on the Closing
Date (the “Effective Time”), substantially all of its assets as set forth in
paragraph 1.2 to the Acquiring Fund, free and clear of all liens and
encumbrances, except as otherwise provided herein, and in exchange therefor the
Acquiring Fund agrees (a) to assume substantially all of the liabilities, if
any, of the Acquired Fund, as set forth in paragraph 1.3 and (b) to issue and
deliver to the Acquired Fund, for distribution in accordance with paragraph 1.5
to the Acquired Fund’s shareholders, (i) the number of Acquiring Fund Common
Shares having an aggregate net asset value equal to the value of the assets,
less the liabilities, of the Acquired Fund so transferred, assigned and
delivered, all determined in the manner and as of the date and time provided in
paragraph 2, and (ii) 680 shares of Acquiring Fund MuniPreferred, Series TH or
Series TH2. If shareholders of the Acquiring Fund approve an amendment to its
charter authorizing additional shares of its MuniPreferred, Series TH, the
Acquiring Fund will issue and deliver shares of its MuniPreferred, Series TH in
connection with the Reorganization. If such an amendment is not approved, the
Acquiring Fund will issue and deliver shares of MuniPreferred, Series TH2 in
connection with the Reorganization. The preferences, voting powers,
restrictions,
limitations
as to dividends, qualifications and terms and conditions of redemption of the
Acquiring Fund MuniPreferred, Series TH or Series TH2, shall be identical in all
material respects to those of the existing series of Acquiring Fund
MuniPreferred. Dividends on shares of Acquired Fund MuniPreferred, Series TH,
shall accumulate to and including the Closing Date and then cease to accumulate,
and dividends on shares of Acquiring Fund MuniPreferred, Series TH or Series
TH2, issued pursuant to the Reorganization shall accumulate in respect of their
“Initial Rate Period” from and including the day after the Closing Date at the
same rate borne on the Closing Date by the shares of Acquiring Fund or Acquired
Fund MuniPreferred, Series TH, respectively. The “Subsequent Rate Periods,”
“Dividend Payment Dates” in respect of such “Subsequent Rate Periods” and
initial and subsequent “Auctions” for the shares of Acquiring Fund
MuniPreferred, Series TH or Series TH2, issued pursuant to this paragraph 1.1
shall be fixed to be identical to the dividend and auction provisions applicable
to the outstanding shares of Acquiring Fund or Acquired Fund MuniPreferred,
Series TH, as of immediately prior to the Effective Time. The “Initial Rate
Period” and “Dividend Payment Rate” in respect of such Initial Rate Period, for
shares of Acquiring Fund MuniPreferred, Series TH or Series TH2, issued pursuant
to the Reorganization, shall be as set forth in the Joint Proxy
Statement-Prospectus, as hereinafter defined. Such transactions shall take place
at the closing provided for in paragraph 3.1 (the “Closing”).
1.2 Except
as otherwise provided herein, as of the Effective Time, the Acquiring Fund shall
acquire the assets of the Acquired Fund (consisting without limitation of all
cash, cash equivalents, municipal obligations and other portfolio securities,
receivables (including interest and dividends receivable) and any deferred or
prepaid expenses shown as assets) as set forth in the respective Statement of
Net Assets referred to in paragraph 7.3 as of the Closing Date. Notwithstanding
the foregoing, the assets to be acquired will not include cash in the amount
necessary to pay expenses of the Acquired Fund in connection with the
transactions contemplated by this Agreement, to pay the dividends and/or other
distributions contemplated by paragraph 1.4. The Acquired Fund has no plan or
intent to sell or otherwise dispose of any of its assets, other than in the
ordinary course of business.
1.3 Except
as otherwise provided herein, as of the Effective Time, the Acquiring Fund will
assume from the Acquired Fund all debts, liabilities, obligations and duties of
the Acquired Fund of whatever kind or nature, whether absolute, accrued,
contingent or otherwise, arising in the ordinary course of business, whether or
not determinable as of the Effective Time and whether or not specifically
referred to in this Agreement. Notwithstanding the foregoing, the Acquiring Fund
will not assume the Acquired Fund’s obligation to pay certain expenses incurred
by the Acquired Fund in connection with the transactions contemplated by this
Agreement or assume the Acquired Fund’s obligation to pay the dividends and/or
other distributions contemplated by paragraph 1.4; and further provided that the
Acquired Fund agrees to utilize its best efforts to discharge all of its known
debts, liabilities, obligations and duties (other than pursuant to paragraph
1.4) prior to the Effective Time.
1.4 At
or prior to the Effective Time, the Acquired Fund (a) will declare all
accumulated but unpaid dividends on the shares of Acquired Fund MuniPreferred,
Series TH, up to and including the day on which the Effective Time occurs, such
dividends to be paid to the holders thereof on the Dividend Payment Date in
respect of the Initial Rate Period of shares of Acquiring Fund
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MuniPreferred,
Series TH or Series TH2, for which such 680 shares of Acquired Fund
MuniPreferred, Series TH, were exchanged, and (b) will declare a dividend and/or
other distribution to be paid within 30 days after the Closing Date to its
shareholders of record so that, upon such payment, it will have distributed all
of its investment company taxable income (computed without regard to any
deduction for dividends paid), net tax-exempt income and realized net capital
gains, if any, through and including the Closing Date.
1.5 On
a date as soon after the Closing Date as is conveniently practicable (the
“Liquidation Date”), the Acquired Fund will liquidate and distribute (a) pro rata to its common shareholders of record,
determined as of the Effective Time, the Acquiring Fund Common Shares received
by the Acquired Fund pursuant to paragraph 1.1 (together with any dividends
declared with respect thereto to holders of record as of a time after the
Effective Time and prior to the Liquidation Date (“Interim Dividends”)), in
exchange for common shares of the Acquired Fund held by the common shareholders
of such Fund and (b) to its preferred shareholders of record, determined as of
the Effective Time, one share of Acquiring Fund MuniPreferred, Series TH or
Series TH2 (together with any Interim Dividends), in exchange for each share of
Acquired Fund MuniPreferred, Series TH, held by the preferred shareholders of
the Acquired Fund. Such liquidation and distribution will be accomplished by
opening accounts on the books of the Acquiring Fund in the names of the
shareholders of the Acquired Fund and transferring to each account (x) in the
case of a common shareholder, such shareholder’s pro rata share of the Acquiring Fund Common
Shares received by the Acquired Fund (rounded down to the nearest whole Share)
and (y) in the case of a preferred shareholder, a number of the shares of
Acquiring Fund MuniPreferred, Series TH or Series TH2, received by the Acquired
Fund equal to the number of shares of Acquired Fund MuniPreferred, Series TH,
held by such shareholder, and by paying to the shareholders of the Acquired Fund
any Interim Dividends on such transferred shares.
1.6 After
the Liquidation Date, each holder of an outstanding certificate or certificates
representing shares of the Acquired Fund will be entitled to receive, upon
surrender of his or her certificates, a certificate or certificates representing
the number of Acquiring Fund Common Shares and/or shares of Acquiring Fund
MuniPreferred, Series TH or Series TH2, and a check for cash in lieu of any
fractional Acquiring Fund Common Share as provided by paragraph 1.7,
distributable with respect to the shares of the Acquired Fund that are
surrendered. No dividends or other distributions payable to the holders of
record of the Acquiring Fund Shares as of a date on or after the Liquidation
Date are required to be paid to any shareholder holding certificates
representing shares of the Acquired Fund (“Acquired Fund Share Certificates”) as
of the Closing Date until the Acquiring Fund is notified by the Acquired Fund’s
transfer agent that such shareholder has surrendered his or her outstanding
Acquired Fund Share Certificates or, in the event of lost, stolen or destroyed
Acquired Fund Share Certificates, posted adequate bond or submitted an affidavit
of lost certificate, or both. The Acquired Fund will, at its expense, request
its shareholders to surrender their outstanding Acquired Fund Share
Certificates, post adequate bond and/or submit an affidavit of lost certificate,
as the case may be. Upon the surrender of Acquired Fund Share Certificates (or,
if applicable, after the posting of a bond and/or submission of an affidavit of
lost certificate), there shall be paid to the shareholder in whose name the
Acquiring Fund Shares shall be registered all dividends or other distributions
that shall have become payable with respect to such Acquiring Fund
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Shares
between the Liquidation Date and the time of such surrender. In no event shall
the shareholder entitled to receive such dividends and distributions be entitled
to receive interest thereon.
1.7 No
certificates or scrip representing fractional Acquiring Fund Common Shares shall
be distributed to the Acquired Fund shareholders upon the surrender for exchange
of Acquired Fund Share Certificates. In lieu of distributing any such fractional
Acquiring Fund Common Shares directly to the Acquired Fund shareholders, the
Acquired Fund shall distribute such interests to the Acquired Fund’s transfer
agent, as representative of the shareholders who would otherwise be entitled to
receive such fractional shares, and the Acquired Fund’s transfer agent shall, on
behalf of such shareholders, on or before the tenth business day following the
Liquidation Date, aggregate all such fractional Acquiring Fund Common Shares and
sell the resulting whole Acquiring Fund Common Shares on the New York Stock
Exchange (the “NYSE) for the accounts of such holders, and each such holder
shall be entitled to receive his or her respective pro rata share of the net proceeds of such
sale upon surrender of his or her Acquired Fund Share Certificates in accordance
with paragraph 1.6.
1.8 Any
transfer taxes payable upon issuance of Acquiring Fund Shares in a name other
than the registered holder of the Acquired Fund shares surrendered in exchange
therefor on the books of the Acquired Fund as of that time shall be paid by the
person to whom such Acquiring Fund Shares are to be issued as a condition to the
registration of such transfer.
1.9 Any
reporting responsibility of the Acquired Fund with the Securities and Exchange
Commission (the “SEC”), the NYSE, or any state securities commission is and
shall remain the responsibility of the Acquired Fund up to and including the
Liquidation Date.
1.10 All
books and records of the Acquired Fund, including all books and records required
to be maintained under the Investment Company Act of 1940, as amended (the
“Investment Company Act”), and the rules and regulations thereunder, shall be
available to the Acquiring Fund from and after the Closing Date and shall be
turned over to the Acquiring Fund on or prior to the Liquidation
Date.
1.11 The
Acquired Fund will apply to terminate its registration under the Investment
Company Act promptly following the Liquidation Date and thereafter shall be
dissolved.
2. Valuation
2.1 The
value of the Acquired Fund’s assets and liabilities to be acquired and assumed,
respectively, by the Acquiring Fund shall be computed as of the Effective Time,
using the valuation procedures set forth in the Funds’ Joint Proxy
Statement — Prospectus (the
“Joint Proxy Statement — Prospectus”) to
be used in connection with the Reorganization. The value of the Acquired Fund’s
net assets shall be calculated net of the liquidation preference (including
accumulated and unpaid dividends) of all outstanding shares of Acquired Fund
MuniPreferred.
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2.2 The
net asset value of an Acquiring Fund Common Share shall be computed as of the
Effective Time by dividing the value of the Acquiring Fund’s total assets, less
liabilities and less the liquidation preference (including accumulated and
unpaid dividends) of all outstanding shares of Acquiring Fund MuniPreferred, by
the number of Acquiring Fund Common Shares outstanding (excluding shares
issuable pursuant to the Reorganization), using the valuation procedures set
forth in the Joint Proxy Statement — Prospectus.
2.3 The
number of Acquiring Fund Common Shares to be issued in exchange for the Acquired
Fund’s net assets shall be calculated by dividing the net asset value of the
Acquired Fund (determined in accordance with paragraph 2.1) by the net asset
value of an Acquiring Fund Common Share (determined in accordance with paragraph
2.2).
2.4 All
computations of net asset value shall be made by or under the direction of The
Chase Manhattan Bank, N.A. (“Chase”) in accordance with its regular practice as
custodian of the Funds.
3. Closing
and Closing Date
3.1 The
Closing Date shall be August 12,1999 or such later date as the parties may agree
in writing, provided that the Closing Date shall be a date on which an “Auction”
would ordinarily occur with respect to shares of the Acquired Fund,
MuniPreferred Series TH if shares of MuniPreferred Series TH are issued in
connection with the Reorganization. If shares of MuniPreferred Series TH2 are
issued in connection with the Reorganization, the Closing Date shall be August
12, 1999 or such later date as the parties may agree in writing, provided that
the Closing Date shall not be a date on which an “Auction” would ordinarily
occur with respect to shares of Acquired Fund’s MuniPreferred, Series TH. All
acts taking place at the Closing shall be deemed to take place simultaneously as
of the Effective Time unless otherwise provided. The Closing shall be at the
office of the Acquiring Fund or at such other place as the parties may
agree.
3.2 Chase
as custodian for the Acquired Fund, shall deliver to the Acquiring Fund at the
Closing a certificate of an authorized officer stating that (a) the Acquired
Fund’s portfolio securities, cash and any other assets have been transferred in
proper form to the Acquiring Fund on the Closing Date and (b) all necessary
taxes, if any, have been paid, or provision for payment has been made, in
conjunction with the delivery of portfolio securities.
3.3 In
the event that on the proposed Closing Date (a) the NYSE or AMEX is closed to
trading or trading thereon is restricted or (b) trading or the reporting of
trading on the NYSE or AMEX or elsewhere is disrupted so that accurate appraisal
of the value of the net assets of the Acquired Fund or of the net asset value
per Acquiring Fund Common Share is impracticable, the Closing Date shall be
postponed until the first business day after the date when such trading shall
have been fully resumed and such reporting shall have been restored, provided
that if shares of Acquiring Fund MuniPreferred Series TH are issued in
connection with the Reorganization, that such day is a Thursday on which an
Auction would ordinarily occur with respect to shares of the Acquired Fund
MuniPreferred, Series TH and provided that if shares of Acquired Fund’s
MuniPreferred, Series TH2 are issued in connection with the Reorganization such
day is not a day
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on which
an Auction would ordinarily occur with respect to shares of the Acquired Fund’s
MuniPreferred, Series TH.
3.4 The
Acquired Fund shall deliver to the Acquiring Fund on or prior to the Liquidation
Date a list of the names and addresses of its shareholders and the number of
outstanding shares of the Acquired Fund owned by each such shareholder (the
“Shareholder Lists”), all as of the Effective Time, certified by the Secretary
or Assistant Secretary of the Acquired Fund. The Acquiring Fund shall issue and
deliver to the Acquired Fund at the Closing a confirmation or other evidence
satisfactory to the Acquired Fund that Acquiring Fund Shares have been or will
be credited to the Acquired Fund’s account on the books of the Acquiring Fund.
At the Closing each party shall deliver to the other such bills of sale, checks,
assignments, stock certificates, receipts and other documents as such other
party or its counsel may reasonably request to effect the transactions
contemplated by this Agreement.
4. Representations
and Warranties
4.1 The
Acquired Fund represents and warrants as follows:
4.1.1 The
Acquired Fund is duly organized and existing under the laws of the Commonwealth
of Massachusetts as a voluntary association with transferable shares commonly
referred to as a “Massachusetts business trust” and has the power to own all of
its properties and assets and, subject to approval of the shareholders of the
Acquired Fund, to carry out the Agreement.
4.1.2 The
Acquired Fund is a closed-end diversified management investment company duly
registered under the Investment Company Act, and such registration is in full
force and effect.
4.1.3 The
Acquired Fund is not, and the execution, delivery and performance of this
Agreement will not result, in violation of any provision of the Declaration of
Trust or By-Laws of the Acquired Fund or of any material agreement, indenture,
instrument, contract, lease or other undertaking to which the Acquired Fund is a
party or by which the Acquired Fund is bound.
4.1.4 The
Acquired Fund has no material contracts or other commitments (except this
Agreement and the obligations to pay the dividends and/or distributions
contemplated by paragraph 1.4) that will not be terminated on or prior to the
Closing Date without any liability or penalty to the Acquired Fund or the
Acquiring Fund.
4.1.5 No
material litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or, to the knowledge of the
Acquired Fund, threatened against the Acquired Fund or any of its properties or
assets. The Acquired Fund knows of no facts that might form the basis for the
institution of such proceedings, and the Acquired Fund 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 herein contemplated.
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4.1.6 The
audited Annual Statement of Net Assets, Statement of Operations, Statement of
Changes in Net Assets, Financial Highlights and Portfolio of Investments of the
Acquired Fund dated May 31, 1999, respectively and for the period then ended
(copies of which have been furnished to the Acquiring Fund) have been prepared
in accordance with generally accepted accounting principles consistently applied
and present fairly, in all material respects, the financial condition of the
Acquired Fund as of such date, and there are no known material liabilities of
the Acquired Fund (contingent or otherwise) not disclosed therein.
4.1.7 Since
May 31, 1999, there has not been any materially adverse change in the Acquired
Fund’s financial condition, assets, liabilities or business, other than changes
occurring in the ordinary course of business, or any incurrence by the Acquired
Fund of indebtedness maturing more than one year from the date such indebtedness
was incurred, except as otherwise disclosed to and accepted by the Acquiring
Fund. For the purposes of this paragraph 4.1.7, a decline in net asset value or
net asset value per common share of the Acquired Fund as a result of changes in
the value of investments held by the Acquired Fund or a distribution or payment
of dividends shall not constitute a materially adverse change.
4.1.8 All
federal, state and other tax returns and reports of the Acquired Fund required
by law to have been filed or furnished by the date hereof have been filed or
furnished, and all federal, state and other taxes, interest and penalties shown
as due on said returns and reports have been paid insofar as due, or provision
has been made for the payment thereof, and, to the best of the Acquired Fund’s
knowledge, no such return is currently under audit and no assessment has been
asserted with respect to such returns or reports.
4.1.9 Since
it commenced operations, the Acquired Fund has met the requirements of
Subchapter M of the Internal Revenue Code for qualification and treatment as a
regulated investment company and intends to meet those requirements for the
current taxable year.
4.1.10 The
authorized capital of the Acquired Fund consists of an unlimited number of
common and preferred shares, par value $.01 per share. All issued and
outstanding shares of the Acquired Fund are duly and validly issued and
outstanding, fully paid and non-assessable, except that shareholders of the
Acquired Fund may under certain circumstances be held personally liable for its
obligations. All issued and outstanding shares of the Acquired Fund will, at the
time of the Closing, be held by the persons and in the amounts set forth in the
applicable Shareholder List submitted to the Acquiring Fund in accordance with
the provisions of paragraph 3.4. The Acquired Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase any shares of the
Acquired Fund, nor is there outstanding any security convertible into shares of
the Acquired Fund.
4.1.11 At
the Closing Date, the Acquired Fund will have good and marketable title to the
assets to be transferred to the Acquiring Fund pursuant to paragraph 1.1 and
full right, power and authority to sell, assign, transfer and deliver such
assets hereunder free of any liens or other encumbrances, and, upon delivery and
payment for such assets, the Acquiring Fund will acquire good and marketable
title thereto.
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4.1.12 The
execution, delivery and performance of this Agreement has been duly authorized
by the Board of Trustees of the Acquired Fund (including the determinations
required by Rule 17a-8(a) under the Investment Company Act) and by all necessary
action, other than shareholder approval, on the part of the Acquired Fund, and,
subject to shareholder approval, this Agreement constitutes a valid and binding
obligation of the Acquired Fund.
4.1.13 The
information furnished and to be furnished by the Acquired Fund for use in
applications for orders, registration statements, proxy materials and other
documents which may be necessary in connection with the transactions
contemplated hereby is, and shall be, accurate and complete in all material
respects and is in compliance, and shall comply, in all material respects with
applicable federal securities and other laws and regulations.
4.1.14 On
the effective date of the Registration Statement referred to in paragraph 5.5,
at the time of the Annual Meeting of the Acquired Fund’s shareholders and on the
Closing Date, the Joint Proxy Statement —Prospectus (a) will comply in all
material respects with the provisions and regulations of the Securities Act of
1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as
amended (the “ 1934 Act”), and the Investment Company Act and the rules and
regulations thereunder and (b) 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, in light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this paragraph 4.1.14 shall not apply to
statements in or omissions from the Joint Proxy Statement — Prospectus made in
reliance upon and in conformity with information furnished by the Acquiring Fund
for use therein.
4.1.15 No
consent, approval, authorization or order of any court or governmental authority
is required for the consummation by the Acquired Fund of the transactions
contemplated by this Agreement, except such as have been obtained under the 1933
Act, the 1934 Act and the Investment Company Act, and such as may be required
under state securities laws.
4.1.16 There
are no brokers or finder’s fees payable on behalf of the Acquired Fund in
connection with the transactions provided for herein.
4.2 The
Acquiring Fund represents and warrants as follows:
4.2.1 The
Acquiring Fund is a State of Minnesota duly organized, validly existing and in
good standing under the laws of the State of Minnesota and has the power to own
all of its properties and assets and, subject to approval of the shareholders of
the Acquiring Fund, to carry out the Agreement.
4.2.2 The
Acquiring Fund is a closed-end diversified management investment company duly
registered under the Investment Company Act, and such registration is in full
force and effect.
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4.2.3 The
Acquiring Fund is not, and the execution, delivery and performance of this
Agreement will not result, in violation of any provision of the Articles of
Incorporation or By-Laws of the Acquiring Fund or of any material agreement,
indenture, instrument, contract, lease or other undertaking to which the
Acquiring Fund is a party or by which the Acquiring Fund is bound.
4.2.4 No
material litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or, to the knowledge of the
Acquiring Fund, threatened against the Acquiring Fund or any of its properties
or assets. The Acquiring Fund knows of no facts that might form the basis for
the institution of such proceedings, and the Acquiring Fund 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 herein contemplated.
4.2.5 The
audited Annual and unaudited Semiannual Statement of Net Assets, Statement of
Operations, Statement of Changes in Net Assets, Financial Highlights and
Portfolio of Investments of the Acquiring Fund dated October 31, 1998 and April
30, 1999, respectively and for the period then ended (copies of which have been
furnished to the Acquired Fund) have been prepared in accordance with generally
accepted accounting principles and present fairly, in all material respects, the
financial condition of the Acquiring Fund as of such date, and there are no
known material liabilities of the Acquiring Fund (contingent or otherwise) not
disclosed therein.
4.2.6 Since
April 30, 1999 there has not been any materially adverse change in the Acquiring
Fund’s financial condition, assets, liabilities or business, other than changes
occurring in the ordinary course of business, or any incurrence by the Acquiring
Fund of indebtedness maturing more than one year from the date such indebtedness
was incurred, except as otherwise disclosed to and accepted by the Acquired
Fund. For the purposes of this paragraph 4.2.6, a decline in net asset value or
net asset value per Acquiring Fund Common Share as a result of changes in the
value of investments held by the Acquiring Fund or a distribution or payment of
dividends shall not constitute a materially adverse change.
4.2.7 All
federal, state and other tax returns and reports of the Acquiring Fund required
by law to have been filed or furnished by the date hereof have been filed or
furnished, and all federal, state and other taxes, interest and penalties shown
as due on said returns and reports have been paid insofar as due, or provision
has been made for the payment thereof, and, to the best of the Acquiring Fund’s
knowledge, no such return is currently under audit and no assessment has been
asserted with respect to such returns or reports.
4.2.8 Since
it commenced operations, the Acquiring Fund has met the requirements of
Subchapter M of the Internal Revenue Code for qualification and treatment as a
regulated investment company and intends to meet those requirements for the
current taxable year.
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4.2.9 The
authorized capital of the Acquiring Fund consists of 201,000,000 shares
consisting of 1,000,000 preferred shares and 200,000,000 common shares. All
issued and outstanding Acquiring Fund Common Shares and shares of Acquiring Fund
MuniPreferred are, and all Acquiring Fund Common Shares and shares of Acquiring
Fund MuniPreferred to be issued in exchange for the net assets of the Acquired
Funds pursuant to this Agreement will be when so issued, duly and validly issued
and outstanding, fully paid and non-assessable. Except as contemplated by this
Agreement, the Acquiring Fund does not have outstanding any options, warrants or
other rights to subscribe for or purchase any Acquiring Fund Shares, nor is
there outstanding any security convertible into any Acquiring Fund
Shares.
4.2.10 The
execution, delivery and performance of this Agreement has been duly authorized
by the Board of Directors of the Acquiring Fund (including the determinations
required by Rule 17a-8(a) under the Investment Company Act) and by all necessary
action, other than shareholder approval, on the part of the Acquiring Fund, and,
subject to approval of preferred shareholders, this Agreement constitutes a
valid and binding obligation of the Acquiring Fund.
4.2.11 The
information furnished and to be furnished by the Acquiring Fund for use in
applications for orders, registration statements, proxy materials and other
documents which may be necessary in connection with the transactions
contemplated hereby is, and shall be, accurate and complete in all material
respects and is in compliance, and shall comply, in all material respects with
applicable federal securities and other laws and regulations.
4.2.12 On
the effective date of the Registration Statement, at the time of the Annual
Meeting of the Acquiring Fund shareholders and on the Closing Date, the
Registration Statement and the Joint Proxy Statement — Prospectus (a) will
comply in all material respects with the provisions of the 1933 Act, the 1934
Act and the Investment Company Act and the rules and regulations thereunder and
(b) 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, in light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in this
paragraph 4.2.12 shall not apply to statements in or omissions from the Joint
Proxy Statement — Prospectus and the Registration Statement made in reliance
upon and in conformity with information furnished by the Acquired Fund for use
therein.
4.2.13 No
consent, approval, authorization or order of any court or governmental authority
is required for the consummation by the Acquiring Fund of the transactions
contemplated by this Agreement, except such as have been obtained under the 1933
Act, the 1934 Act and the Investment Company Act, and such as may be required
under state securities laws.
4.2.14 There
are no brokers’ or finders’ fees payable on behalf of the Acquiring Fund in
connection with the transactions provided for herein.
5. Covenants
of the Acquiring Fund and the Acquired Fund
10
5.1 Except
as may otherwise be required by paragraph 1.4, each Fund will operate its
respective business in the ordinary course between the date hereof and the
Closing Date, it being understood that the ordinary course of business will
include declaring and paying customary dividends and other
distributions.
5.2 Each
Fund will call a shareholders’ meeting to consider and act upon this Agreement
and the transactions contemplated herein and to take all other action necessary
to obtain approval of the transactions contemplated hereby.
5.3 The
Acquired Fund will assist the Acquiring Fund in obtaining such information as
the Acquiring Fund reasonably requests concerning the beneficial ownership of
the Acquired Fund’s shares.
5.4 Subject
to the provisions of this Agreement, each Fund will take or cause to be taken
all action, and will do or cause to be done all things, reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated by this Agreement.
5.5 Each
Fund will prepare and file with the SEC the Joint Proxy Statement
Prospectus, and the Acquiring Fund will prepare and file with the SEC a
registration statement on Form N-14 relating to the Acquiring Fund Shares to be
issued hereunder (together with any amendments thereof and supplements thereto,
the “Registration Statement”), in compliance with the 1933 Act, the 1934 Act and
the Investment Company Act and the rules and regulations
thereunder.
5.6 Each
Fund will, from time to time, as and when requested by the other Fund, execute
and deliver or cause to be executed and delivered all such assignments and other
instruments, and will take or cause to be taken such further action, as the
other Fund may deem necessary or desirable in order to (a) vest in and confirm
to the Acquiring Fund title to and possession of all the assets of the Acquired
Fund to be sold, assigned, transferred and delivered to the Acquiring Fund
pursuant to this Agreement, (b) vest in and confirm to the Acquired Fund title
to and possession of all the Acquiring Fund Shares to be transferred to the
Acquired Fund pursuant to this Agreement, (c) assume all of the Acquired Fund’s
liabilities in accordance with this Agreement, and (d) otherwise to carry out
the intent and purpose of this Agreement.
5.7 The
Acquiring Fund will use all reasonable efforts to obtain the approvals and
authorizations required by the 1933 Act, the Investment Company Act and such of
the state Blue Sky or securities laws as it may deem appropriate in order to
continue its operations after the Closing Date.
5.8 The
expenses incurred by the Funds in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Acquired Fund, whether or
not the transactions contemplated hereby are consummated.
11
6. Conditions Precedent to Obligations
of the Acquired Fund
The
obligations of the Acquired Fund to consummate the transactions provided for
herein shall, at its election, be subject to the performance by the Acquiring
Fund of all the obligations to be performed by it hereunder on or before the
Closing Date and the following further conditions.
6.1 All
representations and warranties of the Acquiring Fund contained in this Agreement
shall be true and correct in all material respects as of the date hereof and,
except as they may be affected by the transactions contemplated by this
Agreement, as of the Closing Date with the same force and effect as if made on
and as of the Closing Date.
6.2 The
Acquiring Fund shall have delivered to the Acquired Fund a certificate executed
in its name by the President or a Vice President of the Acquiring Fund, in form
and substance satisfactory to the Acquired Fund and dated as of the Closing
Date, to the effect that the representations and warranties of the Acquiring
Fund in this Agreement are true and correct at and as of the Closing Date except
as they may be affected by the transactions contemplated by this Agreement, and
as to such other matters as the Acquired Fund shall reasonably
request.
6.3 The
Acquired Fund shall have received the opinion of Vedder, Price, ▇▇▇▇▇▇▇ &
Kammholz, counsel for the Acquiring Fund, dated as of the closing Date,
addressed to the Acquired Fund substantially in the form and to the effect
that:
6.3.1 The
Acquiring Fund is duly organized and existing under the laws of the State of
Minnesota as a corporation;
6.3.2 The
Acquiring Fund is registered as a closed-end management company under the 1940
Act;
6.3.3 This
Agreement and the reorganization provided for herein and the execution of this
Agreement have been duly authorized and approved by all requisite action of the
Acquiring Fund and this Agreement has been duly executed and delivered by the
Acquiring Fund and (assuming the Agreement is a valid and binding obligation of
the other parties thereto) is a valid and binding obligation of the Acquiring
Fund, except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar law affecting
creditors’ rights generally, or by general principals of equity (regardless of
whether enforcement is sought in a proceeding at equity or law);
6.3.4 Neither
the execution or delivery by the Acquiring Fund of this Agreement nor the
consummation by the Acquiring Fund of the transactions contemplated thereby
contravene the Acquiring Fund’s Articles of Incorporation, or, to the best of
their knowledge, violate any provision of any statute or any published
regulation or any judgment or order disclosed to it by the Acquiring Fund as
being applicable to the Acquiring Fund;
12
6.3.5 To
the best of their knowledge based solely on the certificate of an appropriate
officer of the Acquiring Fund, there is no pending or threatened litigation
which would have the effect of prohibiting any material business practice or the
acquisition of any material property or the conduct of any material business of
the Acquiring Fund or might have a material adverse effect on the value of any
assets of the Acquiring Fund;
6.3.6 The
Acquiring Fund’s Shares have been duly authorized and upon issuance thereof in
accordance with this Agreement will, be validly issued, fully paid and
nonassessable;
6.3.7 Except
as to financial statements and schedules and other financial and statistical
data included or, incorporated by reference therein and subject to usual and
customary qualifications with respect to Rule 10b-5 type opinions, as of the
effective date of the Registration Statement filed pursuant to the Agreement,
the portions thereof pertaining to the Acquiring Fund comply as to form in all
material respects with the requirements of the Securities Act, the Securities
Exchange Act and the 1940 Act and the rules and regulations of the SEC
thereunder and no facts have come to counsel’s attention which would cause them
to believe that as of the effectiveness of the portions of the Registration
Statement applicable to the Acquiring Fund, the Registration Statement contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; and
6.3.8 To
the best of their knowledge and information and subject to the qualifications
set forth below, the execution and delivery by the Acquiring Fund of the
Agreement and the consummation of the transactions therein contemplated do not
require, under the laws of the States of Minnesota and Illinois or the federal
laws of the United States, the consent, approval, authorization, registration,
qualification or order of, or filing with, any court or governmental agency or
body (except such as have been obtained). Counsel need express no opinion,
however, as to any such consent, approval, authorization, registration,
qualification, order or filing (a) which may be required as a result of the
involvement of other parties to the Agreement in the transactions contemplated
by the Agreement because of their legal or regulatory status or because of any
other facts specifically pertaining to them; (b) the absence of which does not
deprive the Acquired Fund of any material benefit under the Agreement; or (c)
which can be readily obtained without significant delay or expense to the
Acquired Fund, without loss to the Acquired Fund of any material benefit under
the Agreement and without any material adverse effect on the Acquired Fund
during the period such consent, approval, authorization, registration,
qualification or order was obtained. The foregoing opinion relates only to
consents, approvals, authorizations, registrations, qualifications, orders or
filings under (a) laws which are specifically referred to in this opinion, (b)
laws of the States of Minnesota and Illinois and the federal laws of the United
States which, in counsel’s experience, are normally applicable to transactions
of the type provided for in the Agreement and (c) court orders and judgments
disclosed to counsel by the Acquiring Fund in connection with the opinion. In
addition, although counsel need not specifically have considered the possible
applicability to the Acquiring Fund of any other laws, orders, or judgments,
nothing has come to their attention in connection with their representation of
the Acquiring Fund in this transaction that has caused them to conclude that any
other consent, approval, authorization, registration, qualification, order or
filing is required.
13
6.3.9 In
giving the opinions set forth above, counsel may state that it is relying on
certificates of officers of the Acquiring Fund with regard to matters of fact
and certain certificates and written statements of government officers with
respect to the good standing of the Acquiring Fund and on the opinion of ▇▇▇▇▇▇
& Whitney as to matters of Minnesota law.
7. Conditions
Precedent to Obligations of the Acquiring Fund
The
obligations of the Acquiring Fund to consummate the transactions provided for
herein with respect to the Acquired Fund shall, at its election, be subject to
the performance by the Acquired Fund of all the obligations to be performed by
it hereunder on or before the Closing Date and the following further
conditions:
7.1 All
representations and warranties of the Acquired Fund contained in this Agreement
shall be true and correct in all material respects as of the date hereof and,
except as they may be affected by the transactions contemplated by this
Agreement, as of the Closing Date with the same force and effect as if made on
and as of the Closing Date.
7.2 The
Acquired Fund shall have delivered to the Acquiring Fund a certificate executed
in its name by the President or Vice President of the Acquired Fund, in form and
substance satisfactory to the Acquiring Fund and dated as of the Closing Date,
to the effect that the representations and warranties of the Acquired Fund in
this Agreement are true and correct at and as of the Closing Date except as they
may be affected by the transactions contemplated by this Agreement, and as to
such other matters as the Acquiring Fund shall reasonably request.
7.3 The
Acquired Fund shall have delivered to the Acquiring Fund on the Closing Date a
Statement of Net Assets, which Statement shall be prepared in accordance with
generally accepted accounting principles consistently applied, together with a
list of its portfolio securities showing the adjusted tax bases and holding
periods of such securities as of the Closing Date, certified by the Treasurer of
the Acquired Fund.
7.4 On
or immediately prior to the Closing Date, the Acquired Fund shall have declared
the dividends and/or distributions contemplated by paragraph 1.4.
7.5 The
Acquiring Fund shall have received the opinion of Vedder, Price, ▇▇▇▇▇▇▇ &
Kammholz, counsel for the Acquired Fund, dated as of the closing Date, addressed
to the Acquiring Fund substantially in the form and to the effect
that:
7.5.1 The
Acquired Fund is duly organized and existing under the laws of the Commonwealth
of Massachusetts as a voluntary association with transferable shares of
beneficial interest commonly referred to as a “Massachusetts business
trust;”
7.5.2 The
Acquired Fund is registered as closed-end management company under the 1940
Act;
14
7.5.3 This
Agreement and the reorganization provided for herein and the execution of this
Agreement have been duly authorized and approved by all requisite action of the
Acquired Fund and this Agreement has been duly executed and delivered by the
Acquired Fund and (assuming the Agreement is a valid and binding obligation of
the other parties thereto) is a valid and binding obligation of the Acquired
Fund, except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar law affecting
creditors’ rights generally, or by general principals of equity (regardless of
whether enforcement is sought in a proceeding at equity at law);
7.5.4 Neither
the execution or delivery by the Acquired Fund of this Agreement nor the
consummation by the Acquired Fund of the transactions contemplated thereby
contravene the Acquired Fund’s Declaration of Trust, or, to their knowledge,
violate any provision of any statute or any published regulation or any judgment
or order disclosed to it by the Acquired Fund as being applicable to the
Acquired Fund;
7.5.5 To
their knowledge based solely on the certificate of an appropriate officer of the
Acquired Fund, there is no pending or threatened litigation involving the
Acquired Fund except as disclosed therein;
7.5.6 Except
as to financial statements and schedules and other financial and statistical
data included or, incorporated by reference therein and subject to usual and
customary qualifications with respect to Rule 10b-5 type opinions, as of the
effective date of the Registration Statement filed pursuant to the Agreement,
the portions thereof pertaining to the Acquired Fund comply as to form in all
material respects with the requirements of the Securities Act, the Securities
Exchange Act and the 1940 Act and the rules and regulations of the SEC
thereunder and no facts have come to counsel’s attention which would cause them
to believe that as of the effectiveness of the portions of the Registration
Statement applicable to the Acquired Fund, the Registration Statement contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; and
7.5.7 To
their knowledge and subject to the qualifications set forth below, the execution
and delivery by the Acquired Fund of the Agreement and the consummation of the
transactions therein contemplated do not require, under the laws of the States
of Massachusetts and Illinois or the federal laws of the United States, the
consent, approval, authorization, registration, qualification or order of, or
filing with, any court or governmental agency or body (except such as have been
obtained under the Securities Act, the 1940 Act or the rules and regulations
thereunder and any filing in connection with the termination of the Acquired
Fund). Counsel need express no opinion, however, as to any such consent,
approval, authorization, registration, qualification, order or filing (a) which
may be required as a result of the involvement of other parties to the Agreement
in the transactions contemplated by the Agreement because of their legal or
regulatory status or because of any other facts specifically pertaining to them;
(b) the absence of which does not deprive the Acquiring Fund of any material
benefit under the Agreement; or (c) which can be readily obtained without
significant delay or expense to the Acquiring Fund, without loss to the
Acquiring Fund of any material benefit under the Agreement and without any
material adverse effect on the Acquiring Fund during the period such consent,
approval, authorization, registration, qualification
15
or order
was obtained. The foregoing opinion relates only to consents, approvals,
authorizations, registrations, qualifications, orders or filings under (a) laws
which are specifically referred to in this opinion, (b) laws of the States of
Massachusetts and Illinois and the federal laws of the United States which, in
counsel’s experience, are normally applicable to transactions of the type
provided for in the Agreement and (c) court orders and judgments disclosed to
counsel by the Acquired Fund in connection with the opinion. In addition,
although counsel need not specifically have considered the possible
applicability to the Acquired Fund of any other laws, orders, or judgments,
nothing has come to their attention in connection with their representation of
the Acquired Fund in this transaction that has caused them to conclude that any
other consent, approval, authorization, registration, qualification, order or
filing is required.
7.5.8 In
giving the opinions set forth above, counsel may state that it is relying on
certificates of officers of the Acquired Fund with regard to matters of fact and
certain certificates and written statements of government officers with respect
to the legal existence of the Acquired Fund and on the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇
LLP as to matters of Massachusetts law.
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8.
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Further
Conditions Precedent to Obligations of The Acquiring Fund and the Acquired
Fund
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The
obligations of each Fund hereunder are subject to the further conditions that on
or before the Closing Date:
8.1 This
Agreement and the transactions contemplated herein shall have been approved by
the requisite votes of (a) the Board of Directors of the Acquiring Fund and the
Board of Trustees of the Acquired Fund, including as to the determinations
required by Rule 17a-8(a) under the Investment Company Act and (b) the holders
of the outstanding shares of the Acquiring Fund and the Acquired Fund in
accordance with the provisions of the Acquiring Fund’s Articles of Incorporation
and By-Laws and the Acquired Fund’s Declaration of Trust and By-Laws and the
requirements of the NYSE and AMEX each Fund shall have delivered certified
copies of the resolutions evidencing such approvals to the other Fund; and the
Acquiring Fund shall have given Bankers Trust Company or its successor, and the
Depository Trust Company or its successor, at least five business days notice of
such approval.
8.2 On
the Closing Date no action, suit or other proceeding shall be 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.
8.3 All
consents of other parties and all consents, orders and permits of federal, state
and local regulatory authorities (including those of the SEC and of state Blue
Sky or securities authorities, including “no-action” positions of such federal
or state authorities) deemed necessary by the Acquiring Fund or the Acquired
Fund to permit consummation, in all material respects, of the transactions
contemplated hereby shall have been obtained, except where failure to obtain any
such consent, order or, permit would not involve a risk of a materially adverse
effect on the assets or properties of the Acquiring Fund or the Acquired Fund,
provided that either party hereto may waive any part of this condition as to
itself.
16
8.4 The
Registration Statement shall have become effective under the 1933 Act, and no
stop order suspending the effectiveness thereof shall have been issued, and, to
the best knowledge of the Funds no investigation or proceeding under the 1933
Act for that purpose shall have been instituted or be pending, threatened or
contemplated.
8.5 The
Funds shall have received an opinion of Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz
satisfactory to the Funds and based upon such reasonably requested
representations and warranties as requested by counsel, substantially to the
effect that, for federal income tax purposes:
8.5.1 The
acquisition by the Acquiring Fund of substantially all the assets of the
Acquired Fund in exchange solely for Acquiring Fund Shares and the assumption by
the Acquiring Fund of the Acquired Fund’s liabilities, if any, followed by the
distribution by the Acquired Fund of the Acquiring Fund Shares to the
shareholders of the Acquired Fund in exchange for their Acquired Fund shares in
complete liquidation of the Acquired Fund, will constitute a “reorganization”
within the meaning of Section 368(a)(1) of the Internal Revenue Code, and the
Acquiring Fund and the Acquired Fund each will be “a party to a reorganization”
within the meaning of Section 368(b) of the Internal Revenue Code;
8.5.2 The
Acquired Fund’s shareholders will recognize no gain or loss upon the exchange of
all of their Acquired Fund shares for Acquiring Fund Shares in complete
liquidation of the Acquired Fund, except with respect to cash received for a
fractional Acquiring Fund Common Share, if any;
8.5.3 No
gain or loss will be recognized by the Acquired Fund upon the transfer of
substantially all its assets to the Acquiring Fund in exchange solely for
Acquiring Fund Shares and the assumption by the Acquiring Fund of the Acquired
Fund’s liabilities, if any, and with respect to the subsequent distribution of
those Acquiring Fund Shares to the Acquired Fund shareholders in complete
liquidation of the Acquired Fund;
8.5.4 No
gain or loss will be recognized by the Acquiring Fund upon the acquisition of
substantially all the Acquired Fund’s assets in exchange solely for Acquiring
Fund Shares and the assumption of the Acquired Fund’s liabilities, if
any;
8.5.5 The
basis of the assets acquired by the Acquiring Fund will be, in each instance,
the same as the basis of those assets when held by the Acquired Fund immediately
before the transfer, and the holding period of such assets acquired by the
Acquiring Fund will include the holding period thereof when held by the Acquired
Fund;
8.5.6 The
basis of the Acquiring Fund Shares to be received by the Acquired Fund’s
shareholders upon liquidation of the Acquired Fund will be, in each instance,
the same as the basis of the Acquired Fund shares surrendered in exchange
therefor, (including any fractional Acquiring Fund Common Share interests to
which the shareholder is entitled); and
17
8.5.7 The
holding period of the Acquiring Fund Shares to be received by the Acquired
Fund’s shareholders will include the period during which the Acquired Fund
shares to be surrendered in exchange therefor were held, provided such Acquired
Fund shares were held as capital assets by those shareholders on the date of the
exchange.
8.6 The
Acquiring Fund shall have obtained written confirmation from both ▇▇▇▇▇’▇
Investors Service, Inc. and Standard & Poor’s Corporation that (a)
consummation of the transactions contemplated by this Agreement will not impair
the “aaa” and AAA ratings, respectively, assigned by such rating agencies to the
existing shares of Acquiring Fund MuniPreferred, Series M, Series T, Series T2,
Series W, Series TH, Series F and Series F2, and (b) if Acquiring Fund
shareholders do not approve an amendment to the Acquiring Fund’s Articles of
Incorporation to authorize additional shares of Acquiring Fund MuniPreferred,
Series TH, the shares of Acquiring Fund MuniPreferred, Series TH2, to be issued
pursuant to paragraph 1.1 will be rated “aaa” or AAA, respectively, by such
rating agencies.
9. Entire
Agreement; Survival of Warranties
9.1 This
Agreement constitutes the entire agreement between the Funds.
9.2 The
representations, warranties and covenants contained in this Agreement or in any
document delivered pursuant hereto or in connection herewith shall survive the
consummation of the transactions contemplated hereby.
10. Termination
This
Agreement may be terminated at any time prior to the Effective Time, whether
before or after approval of the shareholders of the Funds:
10.1 By
mutual agreement of the Funds;
10.2 By
either Fund, if a condition to the obligations of such Fund shall not have been
met and it reasonably appears that it will not or cannot be met; or
10.3 By
either Fund, if the Closing shall not have occurred on or before October 13,
1999;
In the
event of any such termination, there shall be no liability for damages on the
part of either Fund (other than the liability of the Funds to pay expenses
pursuant to paragraph 5.8) or any Director, Trustee or officer of any
Fund.
11. Amendment
This
Agreement may be amended, modified or supplemented only in writing by the
parties; provided, however, that following the shareholders’ meetings called by
the Funds pursuant to paragraph 5.2, no such amendment may have the effect of
changing the provisions for determining the number of Acquiring Fund Common
Shares or shares of Acquiring Fund MuniPreferred to be
18
distributed
to the Acquired Fund’s shareholders under this Agreement without their further
approval and the further approval of the Funds’ Boards of Directors or Trustees
(including the determination required by Rule 17a-8(a) under the Investment
Company Act), and provided further that nothing contained in this paragraph 11
shall be construed as requiring additional approval to amend this Agreement to
change the Closing Date or the Effective Time.
12. Notices
Any
notice, report, demand or other communication required or permitted by any
provision of this Agreement shall be in writing and shall be given by hand
delivery, prepaid certified mail or overnight delivery service addressed to ▇▇▇▇
Nuveen & Co. Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
13. Headings;
Counterparts; Governing Law; Assignment
13.1 The
paragraph headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.
13.2 This
Agreement may be executed in any number of counterparts, each of which will be
deemed an original.
13.3 This
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois, except for paragraph 13.6 which shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
13.4 This
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns, and no assignment or transfer hereof or of
any rights or obligations hereunder shall be made by either party without the
written consent of the other party. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give any person, firm or
corporation other than the parties and their respective successors and assigns
any rights or remedies under or by reason of this Agreement.
13.5 All
persons dealing with the Acquiring Fund must look solely to the property of
the Acquiring Fund for the enforcement of any claims against the Acquiring Fund
as neither the Directors, officers, agents or shareholders of the Acquiring Fund
assume any personal liability for obligations entered into on behalf of the
Acquiring Fund.
13.6 Consistent
with the Acquired Fund’s Declaration of Trust, notice is hereby given and the
parties hereto acknowledge and agree that this instrument is executed on behalf
of the Trustees of the Acquired Fund as Trustees and not individually and that
the obligations of this instrument are not binding upon any of the Trustees or
shareholders of the Acquired Fund individually but binding only upon the assets
and property of the Acquired Fund.
19
IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by
the President or Vice President of each Fund.
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NUVEEN
PREMIUM INCOME
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NUVEEN
WASHINGTON PREMIUM
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MUNICIPAL
FUND 4, INC
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INCOME
MUNICIPAL FUND
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By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
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