EXHIBIT 99(4)
AGREEMENT AND PLAN OF REORGANIZATION
TREASURY RESERVE FUND AND TREASURY OBLIGATIONS FUND
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this ____ day of ___________, 2005, by and between Series D (also known as
"Treasury Obligations Fund") (the "Acquiring Fund") of First American Funds,
Inc., a Minnesota corporation ("FAF"), and Series G (also known as "Treasury
Reserve Fund") (the "Acquired Fund") of FAF. The shares of the Acquiring Fund
and the Acquired Fund designated in FAF's amended and restated articles of
incorporation, as supplemented by certificates of designation filed through the
date hereof, which are involved in this transaction are referred to herein by
the names set forth in Section 1.01 of FAF's bylaws, as follows:
Designation in Articles of
Incorporation or
Certificate of Designation Name Assigned in Bylaws
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Series G, Class One Common Shares.. Treasury Reserve Fund
Series D, Class Six Common Shares.. Treasury Obligations Fund, Reserve shares
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation pursuant to Section 368(a)(1)(C) of the United
States Internal Revenue Code of 1986, as amended (the "Code"). The
reorganization (the "Reorganization") will consist of the consolidation of the
Acquired Fund with and into the Acquiring Fund by means of the exchange of
shares of common stock, par value $.01 per share, of the Acquiring Fund (the
"Acquiring Fund Shares"), having an aggregate net asset value equal to the
aggregate net asset value of the Acquired Fund, for all of the issued and
outstanding shares of common stock, par value $.01 per share, of the Acquired
Fund (the "Acquired Fund Shares"), all upon the terms and conditions hereinafter
set forth in this Agreement. The exchange of Acquiring Fund Shares for Acquired
Fund Shares will be effected pursuant to an amendment to FAF's amended and
restated articles of incorporation in the form attached hereto as Exhibit 1 (the
"Amendment") to be adopted in accordance with the Minnesota Business Corporation
Act.
WITNESSETH:
WHEREAS, FAF is a registered, open - end management investment company
that offers its shares of common stock in multiple series (each of which series
represents a separate and distinct portfolio of assets and liabilities);
WHEREAS, the Acquiring Fund offers, among others classes of shares, its
Reserve shares, and the Acquired Fund offers one class of shares;
WHEREAS, the Acquired Fund owns securities which generally are assets of
the character in which the Acquiring Fund is permitted to invest; and
WHEREAS, the Board of Directors of FAF has determined that the
consolidation of the Acquired Fund with and into the Acquiring Fund by means of
the exchange of Reserve shares of
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the Acquiring Fund for all of the issued and outstanding shares of the Acquired
Fund on the basis set forth herein is in the best interests of the Acquired Fund
shareholders and the Acquiring Fund shareholders and has made the determinations
required by Rule 17a-8 under the Investment Company Act of 1940, as amended (the
"1940 Act") with respect to the Reorganization;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. EXCHANGE OF SHARES; REALLOCATION OF ASSETS AND LIABILITIES
1.1 Subject to the requisite approval by the Acquired Fund shareholders
and to the other terms and conditions herein set forth and on the basis of the
representations and warranties contained herein, the Acquired Fund and the
Acquiring Fund agree that at the Effective Time (as defined in Section 3.1),
each issued and outstanding Acquired Fund Share shall be, without further
action, exchanged for that number of Reserve shares of the Acquiring Fund
calculated in accordance with Article 2 hereof and the Amendment;
1.2 (a) At the Effective Time, the assets belonging to the Acquired Fund,
the Special Liabilities associated with such assets, and the General Assets and
General Liabilities allocated to the Acquired Fund, shall become, without
further action, assets belonging to the Acquiring Fund, Special Liabilities
associated with such assets, and General Assets and General Liabilities
allocated to the Acquiring Fund, all in accordance with Article 7(b), (c) and
(d) of FAF's amended and restated articles of incorporation. For purposes of the
foregoing, the terms "assets belonging to," "Special Liabilities," "General
Assets" and "General Liabilities" have the meanings assigned to them in said
Article 7(b), (c) and (d). Such assets belonging to the Acquired Fund to become
assets belonging to the Acquiring Fund shall consist of all of the Acquired
Fund's property, including, but not limited to, all cash, securities,
commodities and futures interests and dividends or interest receivable which are
assets belonging to the Acquired Fund as of the Effective Time. All of said
assets shall be set forth in detail in an unaudited statement of assets and
liabilities of the Acquired Fund as of the Effective Time (the "Effective Time
Statement"). The Effective Time Statement shall, with respect to the listing of
the Acquired Fund's portfolio securities, detail the adjusted tax basis of such
securities by lot, the respective holding periods of such securities and the
current and accumulated earnings and profits of the Acquired Fund. The Effective
Time Statement shall be prepared in accordance with generally accepted
accounting principles (except for footnotes) consistently applied.
(b) The Acquired Fund has provided the Acquiring Fund with a list of all
of the Acquired Fund's assets as of the date of execution of this Agreement. The
Acquired Fund reserves the right to sell any of these securities prior to the
Effective Time and to acquire additional securities in the ordinary course of
its business.
1.3 Pursuant to Section 1.2(a), at the Effective Time the liabilities,
expenses, costs, charges and reserves (including, but not limited to, expenses
incurred in the ordinary course of the Acquired Fund's operations, such as
accounts payable relating to custodian and transfer agency fees, investment
management and administrative fees, and legal and audit fees) as reflected in
the Effective Time Statement shall become liabilities, expenses, costs, charges
and reserves of the Acquiring Fund.
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1.4 At the Effective Time and pursuant to the plan of reorganization
adopted herein, the Acquiring Fund will issue and, on behalf of the Acquired
Fund, distribute (as provided in Article 2) to the Acquired Fund's shareholders
of record, determined as of the Effective Time (the "Acquired Fund
Shareholders"), the Acquiring Fund Shares issued in exchange for the Acquired
Fund Shares pursuant to Section 1.1 and Article 2. Thereafter, no additional
shares representing interests in the Acquired Fund shall be issued, and the
Acquired Fund shall be deemed to be liquidated. Such distribution shall be
accomplished by the issuance of such Acquiring Fund Shares to open accounts on
the share records of the Acquiring Fund in the names of the Acquired Fund
Shareholders representing the numbers and classes of Acquiring Fund Shares due
each such shareholder. All issued and outstanding shares of the Acquired Fund
will simultaneously be cancelled on the books of the Acquired Fund, although
from and after the Effective Time share certificates representing interests in
the Acquired Fund will represent those numbers and that class of Acquiring Fund
Shares as determined in accordance with Article 2. Unless requested by Acquired
Fund Shareholders, the Acquiring Fund will not issue certificates representing
the Acquiring Fund Shares in connection with such exchange.
1.5 Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund. Shares of the Acquiring Fund will be issued in the manner
described in the Acquiring Fund's Prospectuses and Statement of Additional
Information (in effect as of the Effective Time), except that no sales charges
will be incurred by the Acquired Fund Shareholders in connection with the
acquisition by the Acquired Fund Shareholders of Acquiring Fund Shares pursuant
to this Agreement.
1.6 Any reporting responsibility of the Acquired Fund, including, but not
limited to, the responsibility for filing of regulatory reports, tax returns, or
other documents with the Securities and Exchange Commission (the "Commission"),
any state securities commissions, and any federal, state or local tax
authorities or any other relevant regulatory authority, is and shall remain the
responsibility of the Acquired Fund.
2. EXCHANGE RATIOS; VALUATION; ISSUANCE OF ACQUIRING FUND SHARES
2.1 The net asset value per share of the Acquired Fund's shares and the
Acquiring Fund's Reserve shares shall be computed as of the Effective Time using
the valuation procedures set forth in FAF's amended and restated articles of
incorporation and bylaws and then-current Prospectuses and Statement of
Additional Information and as may be required by the ▇▇▇▇ ▇▇▇.
2.2 The total number of the Acquiring Fund's Reserve shares to be issued
(including fractional shares, if any) in exchange for the Acquired Fund's shares
shall be determined as of the Effective Time by multiplying the number of the
Acquired Fund's shares outstanding immediately prior to the Effective Time times
a fraction, the numerator of which is the net asset value per share of the
Acquired Fund's shares immediately prior to the Effective Time, and the
denominator of which is the net asset value per share of the Acquiring Fund's
Reserve shares immediately prior to the Effective Time, each as determined
pursuant to Section 2.1.
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2.3 At the Effective Time, the Acquiring Fund shall issue and, on behalf
of the Acquired Fund, distribute to the Acquired Fund Shareholders pro rata
(based upon the ratio that the number of Acquired Fund shares owned by each
Acquired Fund Shareholder immediately prior to the Effective Time bears to the
total number of issued and outstanding Acquired Fund Shares immediately prior to
the Effective Time) the full and fractional Acquiring Fund Reserve shares to be
issued by the Acquiring Fund pursuant to Section 2.2. Accordingly, each Acquired
Fund Shareholder shall receive, at the Effective Time, Acquiring Fund Reserve
shares with an aggregate net asset value equal to the aggregate net asset value
of the Acquired Fund Shares owned by such Acquired Fund Shareholder immediately
prior to the Effective Time.
2.4 It is understood and agreed that the net asset values referred to in
Sections 2.1 through 2.3 shall be calculated based on the amortized cost
valuation procedures that have been adopted by the Board of Directors of FAF. If
the net asset value per share of the Acquiring Fund Reserve shares to be issued
in the Reorganization and of the Acquired Fund Shares to be surrendered in the
Reorganization, based on "▇▇▇▇ to market" valuations of the respective Funds'
assets immediately prior to the Effective Time pursuant to FAF's valuation
procedures, differ from one another by $0.001 or more per share, the officers of
FAF may (but are not required to) postpone the Effective Time until such time as
the net asset values per share differ from one another by less than $0.001 per
share.
3. EFFECTIVE TIME OF CLOSING
3.1 The closing of the transactions contemplated by this Agreement (the
"Closing") shall occur as of 3:30 p.m. Central time on the first day upon which
the conditions to closing shall have been satisfied, or at such time on such
later date as provided herein or as the parties otherwise may agree in writing
(such time and date being referred to herein as the "Effective Time"). All acts
taking place at the Closing shall be deemed to take place simultaneously as of
the Effective Time unless otherwise agreed to by the parties. The Closing shall
be held at the offices of U.S. Bancorp Asset Management, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the parties may
agree.
3.2 The custodian for the Acquiring Fund (the "Custodian") shall deliver
at the Closing a certificate of an authorized officer stating that it holds the
Acquired Fund's portfolio securities, cash, and any other assets being allocated
to the Acquiring Fund pursuant to this Agreement.
3.3 In the event that the Effective Time would occur on a day on which (a)
the Exchange or another primary trading market for portfolio securities of the
Acquiring Fund or the Acquired Fund shall be closed to trading or trading
thereon shall be restricted, or (b) trading or the reporting of trading on the
Exchange or elsewhere shall be disrupted so that accurate appraisal of the value
of the net assets of the Acquiring Fund or the Acquired Fund is impracticable,
the Effective Time shall be postponed until the close of normal trading on the
Exchange on the first business day when trading shall have been fully resumed
and reporting shall have been restored.
3.4 The Acquired Fund shall deliver at the Closing its certificate stating
that the records maintained by its transfer agent (which shall be made available
to the Acquiring Fund)
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contain the names and addresses of the Acquired Fund Shareholders and the number
of outstanding Acquired Fund Shares owned by each such shareholder as of the
Effective Time. The Acquiring Fund shall certify at the Closing that the
Acquiring Fund Shares required to be issued by it pursuant to this Agreement
have been issued and delivered as required herein. At the Closing, each party
shall deliver to the other such bills of sale, liability assumption agreements,
checks, assignments, share certificates, if any, receipts or other documents as
such other party or its counsel may reasonably request.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 The Acquired Fund represents, warrants and covenants to the Acquiring
Fund as follows:
(a) FAF is a corporation duly organized, validly existing and in good
standing under the laws of the State of Minnesota;
(b) FAF is a registered investment company classified as a management
company of the open-end type, and its registration with the Commission as an
investment company under the 1940 Act, and of each series of shares offered by
FAF under the Securities Act of 1933, as amended (the "1933 Act"), is in full
force and effect;
(c) Shares of the Acquired Fund are registered in all jurisdictions in
which they are required to be registered under applicable state securities laws
and any other applicable laws, and said registrations, including any periodic
reports or supplemental filings, are complete and current, and all fees required
to be paid have been paid, and the Acquired Fund is in good standing, is not
subject to any stop orders, and is fully qualified to sell its shares in any
state in which its shares have been registered;
(d) The Acquired Fund is not in violation, and the execution, delivery and
performance of this Agreement will not result in a violation, of FAF's amended
and restated articles of incorporation or bylaws or of any material agreement,
indenture, instrument, contract, lease or other undertaking to which the
Acquired Fund is a party or by which it is bound;
(e) No material litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or, to the
Acquired Fund's knowledge, threatened against the Acquired Fund or any of its
properties or assets. 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
which materially and adversely affects its business or its ability to consummate
the transactions herein contemplated;
(f) The statement of assets and liabilities of the Acquired Fund as at
September 30, 2004 has been audited by Ernst & Young LLP, independent
accountants, and is in accordance with generally accepted accounting principles
consistently applied, and such statement (a copy of which has been furnished to
the Acquiring Fund) presents fairly, in all material respects, the financial
position of the Acquired Fund as at such date, and there are no known material
contingent liabilities of the Acquired Fund as at such date not disclosed
therein;
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(g) Since September 30, 2004, there has not been any material adverse
change in the Acquired Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of business, except
as otherwise disclosed to the Acquiring Fund. For the purposes of this paragraph
(g), a decline in net asset value per share of the Acquired Fund (other than a
decline to less than $1.00 per share), the discharge or incurrence of Acquired
Fund liabilities in the ordinary course of business, or the redemption of
Acquired Fund shares by Acquired Fund Shareholders shall not constitute such a
material adverse change;
(h) All material federal and other tax returns and reports of the Acquired
Fund required by law to have been filed prior to the Effective Time shall have
been filed and shall be correct, and all federal and other taxes shown as due or
required to be shown as due on said returns and reports shall have been paid or
provision shall have been made for the payment thereof, and, to the best of the
Acquired Fund's knowledge, no such return is currently or shall be under audit
and no assessment shall have been asserted with respect to such returns;
(i) For each taxable year of its operation, the Acquired Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as a
regulated investment company, and the Acquired Fund intends to meet the
requirements of Subchapter M of the Code for qualification and treatment as a
regulated investment company for its final, partial taxable year;
(j) All issued and outstanding shares of the Acquired Fund are, and at the
Effective Time will be, duly and validly issued and outstanding, fully paid and
non-assessable. All of the issued and outstanding shares of the Acquired Fund
will, at the Effective Time, be held by the persons and in the amounts set forth
in the records of the Acquired Fund, as provided in Section 3.4. The Acquired
Fund does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Acquired Fund shares, and there is not
outstanding any security convertible into any of the Acquired Fund shares;
(k) At the Effective Time, the Acquired Fund will have good and marketable
title to the Acquired Fund's assets to be allocated to the Acquiring Fund
pursuant to Section 1.2, and from and after the Effective Time the Acquiring
Fund will have good and marketable title thereto, subject to no restrictions on
the transfer thereof, including such restrictions as might arise under the 1933
Act other than as disclosed to the Acquiring Fund in the Effective Time
Statement;
(l) The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Effective Time by all necessary action on the
part of FAF's Board of Directors, and, subject to the approval of the Acquired
Fund Shareholders, this Agreement will constitute a valid and binding obligation
of the Acquired Fund, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other laws relating to or affecting creditors' rights and to the
application of equitable principles in any proceeding, whether at law or in
equity;
(m) The information to be furnished by the Acquired Fund for use in
registration statements, proxy materials and other documents which may be
necessary in connection with the transactions contemplated hereby shall be
accurate and complete in all material respects;
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(n) All information pertaining to the Acquired Fund and its agents and
affiliates and included in the Registration Statement referred to in Section 5.5
(or supplied by the Acquired Fund, its agents or affiliates for inclusion in
said Registration Statement), on the effective date of said Registration
Statement and up to and including the Effective Time, 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 such statements are made, not materially misleading
(other than as may timely be remedied by further appropriate disclosure);
(o) Since September 30, 2004, there have been no material changes by the
Acquired Fund in accounting methods, principles or practices, including those
required by generally accepted accounting principles, except as disclosed in
writing to the Acquiring Fund; and
(p) The Effective Time Statement will be prepared in accordance with
generally accepted accounting principles (except for footnotes) consistently
applied and will present accurately the assets and liabilities of the Acquired
Fund as of the Effective Time, and the values of the Acquired Fund's assets and
liabilities to be set forth in the Effective Time Statement will be computed as
of the Effective Time using the valuation procedures set forth in the Acquired
Fund's amended and restated articles of incorporation and bylaws and
then-current Prospectuses and Statement of Additional Information and as may be
required by the 1940 Act.
4.2 The Acquiring Fund represents, warrants and covenants to the Acquired
Fund as follows:
(a) FAF is a corporation duly organized, validly existing and in good
standing under the laws of the State of Minnesota;
(b) FAF is a registered investment company classified as a management
company of the open-end type, and its registration with the Commission as an
investment company under the 1940 Act, and of each series of shares offered by
FAF under the 1933 Act, is in full force and effect;
(c) At or before the Effective Time, shares of the Acquiring Fund
(including, but not limited to, the Acquiring Fund Reserve shares) will be
registered in all jurisdictions in which they will be required to be registered
under applicable state securities laws and any other applicable laws (including,
but not limited to, all jurisdictions necessary to effect the Reorganization),
and said registrations, including any periodic reports or supplemental filings,
will be complete and current, and all fees required to be paid will have been
paid, and the Acquiring Fund will be in good standing, and will not be subject
to any stop orders, and will be fully qualified to sell its shares in any state
in which its shares will have been registered;
(d) The Prospectuses and Statement of Additional Information of the
Acquiring Fund, as of the date hereof and up to and including the Effective
Time, conform and will conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations of
the Commission thereunder and do not and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or
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necessary to make the statements therein, in light of the circumstances under
which they were made, not materially misleading;
(e) The Acquiring Fund is not in violation, and the execution, delivery
and performance of this Agreement will not result in a violation, of FAF's
amended and restated articles of incorporation or bylaws or of any material
agreement, indenture, instrument, contract, lease or other undertaking to which
the Acquiring Fund is a party or by which it is bound;
(f) No material litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or, to the
Acquiring Fund's knowledge, threatened against the Acquiring Fund or any of its
properties or assets. 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
which materially and adversely affects its business or its ability to consummate
the transactions herein contemplated;
(g) The statement of assets and liabilities of the Acquiring Fund as at
September 30, 2004 has been audited by Ernst & Young LLP, independent
accountants, and is in accordance with generally accepted accounting principles
consistently applied, and such statement (a copy of which has been furnished to
the Acquired Fund) presents fairly, in all material respects, the financial
position of the Acquiring Fund as at such date, and there are no known material
contingent liabilities of the Acquiring Fund as at such date not disclosed
therein;
(h) Since September 30, 2004, there has not been any material adverse
change in the Acquiring Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of business, except
as otherwise disclosed to the Acquired Fund. For the purposes of this paragraph
(h), a decline in net asset value per share of the Acquiring Fund (other than a
decline to less than $1.00 per share), the discharge or incurrence of Acquiring
Fund liabilities in the ordinary course of business, or the redemption of
Acquiring Fund Shares by Acquiring Fund shareholders shall not constitute a
material adverse change;
(i) All material federal and other tax returns and reports of the
Acquiring Fund required by law to have been filed prior to the Effective Time
shall have been filed and shall be correct, and all federal and other taxes
shown as due or required to be shown as due on said returns and reports shall
have been paid or provision shall have been made for the payment thereof, and to
the best of the Acquiring Fund's knowledge no such return is currently or shall
be under audit and no assessment shall have been asserted with respect to such
returns;
(j) For each taxable year of its operation, the Acquiring Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as a
regulated investment company, and the Acquiring Fund intends to meet the
requirements of Subchapter M of the Code for qualification and treatment as a
regulated investment company in the current and future years;
(k) All issued and outstanding shares of the Acquiring Fund are, and at
Effective Time will be, duly and validly issued and outstanding, fully paid and
non-assessable;
(l) The Acquiring Fund Reserve shares to be issued and delivered to the
Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant to
the terms of this
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Agreement, at the Effective Time will have been duly authorized and, when so
issued and delivered, will be duly and validly issued Acquiring Fund Reserve
shares and will be fully paid and non-assessable;
(m) The Acquiring Fund does not have outstanding any options, warrants or
other rights to subscribe for or purchase any of the Acquiring Fund Reserve
shares, and there is not outstanding any security convertible into any of the
Acquiring Fund Reserve shares;
(n) At the Effective Time, the Acquiring Fund will have good and
marketable title to the Acquiring Fund's assets;
(o) Since September 30, 2004, there have been no material changes by the
Acquiring Fund in accounting methods, principles or practices, including those
required by generally accepted accounting principles, except as disclosed in
writing to the Acquired Fund;
(p) The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Effective Time by all necessary action on the
part of the Board of Directors of FAF, as issuer of the Acquiring Fund Shares,
and this Agreement will constitute a valid and binding obligation of the
Acquiring Fund enforceable in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other laws relating to or affecting creditors' rights and to the
application of equitable principles in any proceeding, whether at law or in
equity. Consummation of the transactions contemplated by this Agreement does not
require the approval of the Acquiring Fund's shareholders;
(q) The information to be furnished by the Acquiring Fund for use in
registration statements, proxy materials and other documents which may be
necessary in connection with the transactions contemplated hereby shall be
accurate and complete in all material respects;
(r) Following the Reorganization, the Acquiring Fund shall determine its
net asset value per share in accordance with the valuation procedures set forth
in the Acquiring Fund's amended and restated articles of incorporation, bylaws
and Prospectuses and Statement of Additional Information (as the same may be
amended from time to time) and as may be required by the 1940 Act; and
(s) The Registration Statement referred to in Section 5.5, on its
effective date and up to and including the Effective Time, will (i) conform in
all material respects to the applicable requirements of the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the 1940 Act
and the rules and regulations of the Commission thereunder, and (ii) 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 such statements were made, not materially
misleading (other than as may timely be remedied by further appropriate
disclosure); provided, however, that the representations and warranties in
clause (ii) of this paragraph shall not apply to statements in (or omissions
from) the Registration Statement concerning the Acquired Fund.
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5. FURTHER COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND
5.1 Each of the Acquired Fund and the Acquiring Fund will operate its
business in the ordinary course between the date hereof and the Effective Time,
it being understood that such ordinary course of business will include the
declaration and payment of customary dividends and distributions, and any other
distributions that may be advisable (which may include distributions prior to
the Effective Time of net income and/or net realized capital gains not
previously distributed).
5.2 The Acquired Fund will call a meeting of its shareholders to consider
and act upon this Agreement, the Amendment and the Reorganization and to take
all other action necessary to obtain approval of the transactions contemplated
herein.
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 shares.
5.4 Subject to the provisions of this Agreement, the Acquiring Fund and
the Acquired Fund will each take, or cause to be taken, all actions, and 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 The Acquired Fund will provide the Acquiring Fund with information
reasonably necessary with respect to the Acquired Fund and its agents and
affiliates for the preparation of the Registration Statement on Form N-14 of the
Acquiring Fund (the "Registration Statement"), in compliance with the 1933 Act,
the 1934 Act and the 1940 Act.
5.6 The Acquiring Fund agrees to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and such of
the state blue sky or securities laws as may be necessary in order to conduct
its operations after the Effective Time.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquiring Fund of all the obligations to be performed by it hereunder at or
before the Effective Time, and, in addition thereto, the following further
conditions (any of which may be waived by the Acquired Fund, in its sole and
absolute discretion):
6.1 All representations and warranties of the Acquiring Fund contained in
this Agreement shall be true and correct as of the date hereof and, except as
they may be affected by the transactions contemplated by this Agreement, as of
the Effective Time with the same force and effect as if made at such time; and
6.2 The Acquiring Fund shall have delivered to the Acquired Fund a
certificate executed in its name by its President or a Vice President, in a form
reasonably satisfactory to the Acquired Fund and dated as of the date of the
Closing, to the effect that the representations and warranties of the Acquiring
Fund 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 and
as to such other matters as the Acquired Fund shall reasonably request.
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7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to complete the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquired Fund of all of the obligations to be performed by it hereunder at or
before the Effective Time and, in addition thereto, the following conditions
(any of which may be waived by the Acquiring Fund, in its sole and absolute
discretion):
7.1 All representations and warranties of the Acquired Fund contained in
this Agreement shall be true and correct as of the date hereof and, except as
they may be affected by the transactions contemplated by this Agreement, as of
the Effective Time with the same force and effect as if made at such time;
7.2 The Acquiring Fund shall have received, and certified as to its
receipt of, the Effective Time Statement;
7.3 The Acquired Fund shall have delivered to the Acquiring Fund a
certificate executed in its name by its President or a Vice President, in form
and substance satisfactory to the Acquiring Fund and dated as of the date of the
Closing, to the effect that the representations and warranties of the Acquired
Fund made in this Agreement are true and correct at and as of the Effective
Time, 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; and
7.4 At or prior to the Effective Time, the Acquired Fund's investment
advisor, or an affiliate thereof, shall have reimbursed or agreed to reimburse
the Acquired Fund by the amount, if any, that the expenses incurred by the
Acquired Fund (or accrued up to the Effective Time) exceed any applicable
contractual expense limitations.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND THE
ACQUIRED FUND
The following shall constitute further conditions precedent to the
consummation of the Reorganization:
8.1 This Agreement, the Amendment, and the transactions contemplated
herein and therein shall have been approved by the requisite vote of the holders
of the outstanding shares of the Acquired Fund in accordance with the provisions
of FAF's amended and restated articles of incorporation and bylaws and
applicable law, and certified copies of the resolutions evidencing such approval
shall have been delivered to the Acquiring Fund. Notwithstanding anything herein
to the contrary, neither the Acquiring Fund nor the Acquired Fund may waive the
conditions set forth in this Section 8.1;
8.2 The Acquiring Fund's investment advisor shall have paid or agreed to
pay the costs incurred by FAF in connection with the Reorganization, including
the fees and expenses associated with the preparation and filing of the
Registration Statement referred to in Section 5.5 above, and the expenses of
printing and mailing the prospectus/proxy statement, soliciting proxies and
holding the shareholders meeting required to approve the transactions
contemplated by this Agreement;
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8.3 As of the Effective Time, no action, suit or other proceeding shall be
threatened or pending before any court or governmental agency in which it is
sought to restrain or prohibit, or obtain damages or other relief in connection
with, this Agreement or the transactions contemplated herein;
8.4 All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory 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 material adverse effect on the assets or properties of the
Acquiring Fund or the Acquired Fund, provided that either party hereto may for
itself waive any of such conditions;
8.5 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 parties hereto, no investigation or
proceeding for that purpose shall have been instituted or be pending, threatened
or contemplated under the 1933 Act;
8.6 The parties shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
addressed to the Acquired Fund and the Acquiring Fund, dated as of the date of
the Closing, and based in part on certain representations to be furnished by the
Acquired Fund, the Acquiring Fund, and their investment advisor and other
service providers, substantially to the effect that:
(i) the Reorganization will constitute a reorganization within the
meaning of Section 368(a)(1)(C) of the Code, and the Acquiring Fund
and the Acquired Fund each will qualify as a party to the
Reorganization under Section 368(b) of the Code;
(ii) the Acquired Fund Shareholders will recognize no income, gain or
loss upon receipt, pursuant to the Reorganization, of the Acquiring
Fund Shares. Acquired Fund Shareholders subject to taxation will
recognize income upon receipt of any net investment income or net
capital gains of the Acquired Fund which are distributed by the
Acquired Fund prior to the Effective Time;
(iii) the tax basis of the Acquiring Fund Shares received by each Acquired
Fund Shareholder pursuant to the Reorganization will be equal to the
tax basis of the Acquired Fund Shares exchanged therefor;
(iv) the holding period of the Acquiring Fund Shares received by each
Acquired Fund Shareholder pursuant to the Reorganization will
include the period during which the Acquired Fund Shareholder held
the Acquired Fund Shares exchanged therefor, provided that the
Acquired Fund shares were held as a capital asset at the Effective
Time;
(v) the Acquired Fund will recognize no income, gain or loss by reason
of the Reorganization;
(vi) the Acquiring Fund will recognize no income, gain or loss by reason
of the Reorganization;
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(vii) the tax basis of the assets received by the Acquiring Fund pursuant
to the Reorganization will be the same as the basis of those assets
in the hands of the Acquired Fund as of the Effective Time;
(viii) the holding period of the assets received by the Acquiring Fund
pursuant to the Reorganization will include the period during which
such assets were held by the Acquired Fund; and
(ix) the Acquiring Fund will succeed to and take into account the
earnings and profits, or deficit in earnings and profits, of the
Acquired Fund as of the Effective Time; and
8.7 The Amendment shall have been filed in accordance with the applicable
provisions of Minnesota law.
9. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
9.1 The Acquiring Fund and the Acquired Fund agree that neither party has
made any representation, warranty or covenant not set forth herein and that this
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof.
9.2 The representations and warranties contained in this Agreement or in
any document delivered pursuant hereto or in connection herewith shall survive
the consummation of the transactions contemplated hereunder.
10. TERMINATION
This Agreement and the transactions contemplated hereby may be terminated
and abandoned by either party by resolution of FAF's Board of Directors at any
time prior to the Effective Time, if circumstances should develop that, in the
good faith opinion of such Board, make proceeding with the Agreement not in the
best interest of the shareholders of the Acquired Fund or the Acquiring Fund.
11. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as
may be mutually agreed upon in writing by the authorized officers of the
Acquired Fund and the Acquiring Fund; provided, however, that following the
meeting of the Acquired Fund Shareholders called by the Acquired Fund pursuant
to Section 5.2 of this Agreement, no such amendment may have the effect of
changing the provisions for determining the number of the Acquiring Fund Shares
to be issued to the Acquired Fund Shareholders under this Agreement to the
detriment of such shareholders without their further approval.
12. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be deemed duly given
if delivered or mailed by registered mail, postage prepaid, addressed to the
Acquiring Fund or the Acquired Fund, ▇▇▇
- ▇▇ -
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President (with a copy
to ▇▇▇▇▇▇ & Whitney LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. Alt).
13. HEADINGS; COUNTERPARTS; ASSIGNMENT; MISCELLANEOUS
13.1 The Article and Section 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 shall be deemed an original and all of which together shall constitute one
and the same agreement.
13.3 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the prior 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 hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
13 .4 The validity, interpretation and effect of this Agreement shall be
governed exclusively by the laws of the State of Minnesota, without giving
effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its President or a Vice President.
FIRST AMERICAN FUNDS, INC., ON BEHALF OF
ITS TREASURY RESERVE FUND
By _____________________________________
Its ____________________________________
FIRST AMERICAN FUNDS, INC., ON BEHALF OF
ITS TREASURY OBLIGATIONS FUND
By _____________________________________
Its ____________________________________
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EXHIBIT 1 TO AGREEMENT AND PLAN OF REORGANIZATION
ARTICLES OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FIRST AMERICAN FUNDS, INC.
The undersigned officer of First American Funds, Inc. (the "Corporation"),
a Minnesota corporation, hereby certifies that the following amendments to the
Corporation's Amended and Restated Articles of Incorporation have been approved
by the Corporation's Board of Directors and the Corporation's shareholders in
the manner required by the Minnesota Business Corporation Act:
WHEREAS, the Corporation is registered as an open-end management
investment company (i.e., a mutual fund) under the Investment Company Act
of 1940 and offers its shares to the public in several series, each of
which represents a separate and distinct portfolio of assets;
WHEREAS, it is desirable and in the best interests of the holders of the
Series G shares of the Corporation (also known as "Treasury Reserve Fund")
that the assets belonging to such series be sold to a separate portfolio
of the Corporation which is known as "Treasury Obligations Fund" and which
is represented by the Corporation's Series D shares, in exchange for
shares of Treasury Obligations Fund which are to be delivered to former
Treasury Reserve Fund holders;
WHEREAS, Treasury Reserve Fund and Treasury Obligations Fund have entered
into an Agreement and Plan of Reorganization providing for the foregoing
transactions; and
WHEREAS, the Agreement and Plan of Reorganization requires that, in order
to bind all holders of shares of Treasury Reserve Fund to the foregoing
transactions, and in particular to bind such holders to the exchange of
their Treasury Reserve Fund shares for Treasury Obligations Fund shares,
it is necessary to adopt an amendment to the Corporation's Amended and
Restated Articles of Incorporation.
NOW, THEREFORE, BE IT RESOLVED, that the Corporation's Amended and
Restated Articles of Incorporation be, and the same hereby are, amended to
add the following Article 5C immediately following Article 5B thereof:
ARTICLE 5C. (a) For purposes of this Article 5C, the following terms
shall have the following meanings:
"Corporation" means this corporation.
"Acquired Fund" means the Corporation's Treasury Reserve Fund, which
is represented by the Corporation's Series G shares.
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"Acquired Fund Shares" means the Corporation's Series G, Class One
Common Shares.
"Acquiring Fund" means the Corporation's Treasury Obligations Fund,
which is represented by the Corporation's Series D shares.
"Acquiring Fund Reserve Shares" means the Corporation's Series D,
Class Six Common Shares.
"Effective Time" means 3:30 p.m. Central time on the date upon which
these Articles of Amendment are filed with the Minnesota Secretary
of State's Office.
(b) At the Effective Time, the assets belonging to the Acquired
Fund, the Special Liabilities associated with such assets, and the General
Assets and General Liabilities allocated to the Acquired Fund, shall
become, without further action, assets belonging to the Acquiring Fund,
Special Liabilities associated with such assets, and General Assets and
General Liabilities allocated to the Acquiring Fund. For purposes of the
foregoing, the terms "assets belonging to," "Special Liabilities,"
"General Assets" and "General Liabilities" have the meanings assigned to
them in Article 7(b), (c) and (d) of the Corporation's Amended and
Restated Articles of Incorporation.
(c) At the Effective Time, each issued and outstanding Acquired Fund
Share shall be, without further action, exchanged for that number of
Acquiring Fund Reserve shares calculated in accordance with paragraph (d)
below.
(d) The number of Acquiring Fund Reserve shares to be issued in
exchange for the Acquired Fund Shares shall be determined as follows:
(i) The net asset value per share of the Acquired Fund Shares
and the Acquiring Fund Reserve shares shall be computed as of the
Effective Time using the valuation procedures set forth in the
Corporation's articles of incorporation and bylaws and then-current
Prospectuses and Statement of Additional Information and as may be
required by the Investment Company Act of 1940, as amended (the
"1940 Act").
(ii) The total number of Acquiring Fund Reserve shares to be
issued (including fractional shares, if any) in exchange for the
Acquired Fund Shares shall be determined as of the Effective Time by
multiplying the number of Acquired Fund Shares outstanding
immediately prior to the Effective Time times a fraction, the
numerator of which is the net asset value per share of Acquired Fund
Shares immediately prior to the Effective Time, and the denominator
of which is the net asset value per share of the Acquiring Fund
Reserve shares immediately prior to the Effective Time, each as
determined pursuant to (i) above.
(iii) At the Effective Time, the Acquired Fund shall issue and
distribute to the Acquired Fund shareholders pro rata (based upon
the ratio that the number of Acquired Fund Shares owned by each
Acquired Fund shareholder immediately prior to the Effective Time
bears to the total number of issued and outstanding
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Acquired Fund Shares immediately prior to the Effective Time) the
full and fractional Acquiring Fund Reserve shares issued by the
Acquiring Fund pursuant to (ii) above. Accordingly, each Acquired
Fund shareholder shall receive, at the Effective Time, Acquiring
Fund Reserve shares with an aggregate net asset value equal to the
aggregate net asset value of the Acquired Fund Shares owned by such
Acquired Fund shareholder immediately prior to the Effective Time.
(e) The distribution of Acquiring Fund Reserve shares to Acquired
Fund shareholders provided for in paragraphs (c) and (d) above shall be
accomplished by the issuance of such Acquiring Fund Reserve shares to open
accounts on the share records of the Acquiring Fund in the names of the
Acquired Fund shareholders representing the numbers of Acquiring Fund
Reserve shares due each such shareholder pursuant to the foregoing
provisions. All issued and outstanding shares of the Acquired Fund shall
simultaneously be cancelled on the books of the Acquired Fund and retired.
From and after the Effective Time, share certificates formerly
representing Acquired Fund Shares shall represent the numbers of Acquiring
Fund Reserve shares determined in accordance with the foregoing
provisions.
(f) From and after the Effective Time, the Acquired Fund Shares
cancelled and retired pursuant to paragraph (e) above shall have the
status of authorized and unissued Series G common shares of the
Corporation, without designation as to class.
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to be signed in its name and on its behalf by its President or a Vice President
on , 2005.
FIRST AMERICAN FUNDS, INC.
By ________________________
Its _______________________
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