Exhibit 4
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▇▇▇▇▇ FARGO FUNDS TRUST
AND
THE ACHIEVEMENT FUNDS TRUST
DRAFT
AGREEMENT AND
PLAN OF
REORGANIZATION
Dated as of November 15, 2000
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This AGREEMENT AND PLAN OF REORGANIZATION (the "Plan") is made as of this
----
15th day of November, 2000, by and between ▇▇▇▇▇ Fargo Funds Trust ("▇▇▇▇▇ Fargo
-----------
Funds"), a Delaware business trust, for itself and on behalf of its series
-----
listed in the Acquiring Funds column below (each an "Acquiring Fund") and The
--------------
Achievement Funds Trust ("Achievement Funds"), a Massachusetts business trust,
-----------------
for itself and on behalf of its series listed in the Target Funds column below
(each a "Target Fund").
-----------
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Target Funds Acquiring Funds
--------------------------------------------------------------------
Equity Fund Growth Fund
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Balanced Fund Asset Allocation Fund
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Municipal Bond Fund National Tax-Free Fund
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Idaho Municipal Bond Fund National Tax-Free Fund
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Intermediate Term Bond Fund Income Fund
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Short Term Bond Fund Stable Income Fund
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WHEREAS, ▇▇▇▇▇ Fargo Funds and Achievement Funds are open-end management
investment companies registered with the Securities and Exchange Commission (the
"SEC") under the Investment Company Act of 1940, as amended (the "1940 Act");
--- --------
WHEREAS, the parties desire that each Acquiring Fund acquire the assets and
assume the liabilities of the Target Fund listed opposite the Acquiring Fund
("Corresponding Target") in exchange for shares of equal value of the Acquiring
--------------------
Fund and the distribution of the shares of the Acquiring Fund to the
shareholders of the Corresponding Target in connection with the liquidation and
termination of the Corresponding Target (each transaction between an Acquiring
Fund and its Corresponding Target, a "Reorganization"); and
--------------
WHEREAS, the parties intend that each Reorganization qualify as a
"reorganization," within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that each Acquiring Fund and its
----
Corresponding Target be a "party to a reorganization," within the meaning of
Section 368(b) of the Code, with respect to that Reorganization;
NOW, THEREFORE, in accordance with the mutual promises described herein,
the parties agree as follows:
1. Definitions.
------------
The following terms shall have the following meanings:
1933 Act........................... The Securities Act of 1933, as amended.
--------
1934 Act........................... The Securities Exchange Act of 1934, as
-------- amended.
Acquiring Class.................... The class of an Acquiring Fund's shares
--------------- that ▇▇▇▇▇ Fargo Funds will issue to the
shareholders of the Corresponding Target
Class as set forth in the Corresponding
Classes Table in Schedule A.
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Acquiring Fund Financial The audited financial statements of each
------------------------
Statements......................... Acquiring Fund for its most recently
---------- completed fiscal year and, if applicable,
the unaudited financial statements of each
Acquiring Fund for its most recently
completed semi-annual period.
Assets............................. All property and assets of any kind and all
------ interests, rights, privileges and powers of
or attributable to a Fund, whether or not
determinable at the appropriate Effective
Time and wherever located. Assets include
all cash, cash equivalents, securities,
claims (whether absolute or contingent,
Known or unknown, accrued or unaccrued or
conditional or unmatured), contract rights
and receivables (including dividend and
interest receivables) owned by a Fund and
any deferred or prepaid expense shown as an
asset on the Target Fund's books.
Assets List........................ A list of securities and other Assets and
----------- Known Liabilities of or attributable to a
Target Fund as of the date provided to
▇▇▇▇▇ Fargo Funds.
Closing Date....................... February 23, 2001, or such other dates as
------------ the parties may agree to in writing with
respect to a Reorganization.
Corresponding Target Class......... The Target share class set forth opposite
-------------------------- an Acquiring Class in the Corresponding
Classes Table on Schedule A.
Effective Time..................... 9:00 a.m. Eastern Time on the business day
-------------- following the Closing Date of a
Reorganization, or such other time and date
as the parties may agree to in writing.
Fund............................... An Acquiring Fund or a Target Fund.
----
Holding Company Merger
----------------------
Date............................... The date of the closing of the acquisition
---- of First Security Corporation by ▇▇▇▇▇
Fargo & Company.
HSR Act............................ The ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
------- Improvements Act of 1976, as amended.
Know, Known or Knowledge........... Known after reasonable inquiry.
------------------------
Liabilities........................ All liabilities of, allocated or
-----------
attributable to, a Fund, whether Known or
unknown, accrued or unaccrued, absolute or
contingent or conditional or unmatured.
N-14 Registration Statement........ The Registration Statement of ▇▇▇▇▇ Fargo
--------------------------- Funds on Form N-14 under the 1940 Act that
will register the shares of the Acquiring
Funds to be issued in the Reorganizations
and will include the
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proxy materials necessary for the
shareholders of the Corresponding Target
Funds to approve the Reorganizations.
Material Agreements................ The agreements set forth in Schedule B, as
------------------- may be amended from time to time.
Reorganization Documents........... Such bills of sale, assignments, and other
------------------------ instruments of transfer as ▇▇▇▇▇ Fargo
Funds or Achievement Funds deems desirable
for a Target Fund to transfer to an
Acquiring Fund all right and title to and
interest in the Corresponding Target Fund's
Assets and Liabilities and for the
Acquiring Fund to assume the Corresponding
Target Fund's Assets and Liabilities.
Schedule A......................... Schedule A to this Plan.
----------
Schedule B......................... Schedule B to this Plan, as may be amended
---------- from time to time.
Target Financial Statements........ The audited financial statements of each
--------------------------- Target Fund for its most recently completed
fiscal year and, if applicable, the
unaudited financial statements of each
Target Fund for its most recently completed
semi-annual period.
Valuation Time..................... The time on a Reorganization's Closing
-------------- Date, the business day immediately
preceding the Closing Date if the Closing
Date is not a business day or such other
time as the parties may agree to in
writing, that ▇▇▇▇▇ Fargo Funds determines
the net asset value of the shares of the
Acquiring Fund and Achievement Funds
determines the net value of the Assets of
or attributable to the Corresponding Target
Fund. Unless otherwise agreed to in
writing, the Valuation Time of a
Reorganization shall be at the time of day
then set forth in the Acquiring Fund's and
Target Fund's Registration Statement on
Form N-1A as the time of day at which net
asset value is calculated.
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2. Regulatory Filings and Shareholder Action.
-----------------------------------------
(a) ▇▇▇▇▇ Fargo Funds shall promptly prepare and file the N-14
Registration Statement with the SEC. ▇▇▇▇▇ Fargo Funds also shall make any
other required filings including, without limitation, filings with state or
foreign securities regulatory authorities.
(b) Achievement Funds shall assist ▇▇▇▇▇ Fargo Funds in preparing the
N-14 Registration Statement. Achievement Funds also shall make any other
filings required of it.
(c) The parties shall seek an order of the SEC, if appropriate,
providing them with any necessary relief from the 1940 Act to permit them to
consummate the transactions contemplated by this Plan.
(d) As soon as practicable after the effective date of the N-14
Registration Statement, Achievement Funds shall hold Target Fund shareholder
meetings to consider and approve this Plan, the Reorganizations and such other
matters as the Board of Trustees of Achievement Funds may determine.
3. Transfer of Target Fund Assets. Achievement Funds and ▇▇▇▇▇ Fargo
------------------------------
Funds shall take the following steps with respect to each Reorganization:
(a) On or prior to the Closing Date, Achievement Funds shall endeavor
to pay or make reasonable provision to pay out of the Target Fund's Assets all
of the Liabilities, expenses, costs and charges of or attributable to the Target
Fund that are Known to Achievement Funds and that are due and payable as of the
Closing Date.
(b) At the Effective Time, Achievement Funds shall assign, transfer,
deliver and convey all of the Target Fund's Assets to the Acquiring Fund. ▇▇▇▇▇
Fargo Funds shall then accept the Target Fund's Assets and assume the Target
Fund's Liabilities such that at and after the Effective Time (i) all of the
Target Fund's Assets at or after the Effective Time shall become and be the
Assets of the Acquiring Fund and (ii) all of the Target Fund's Liabilities at
the Effective Time shall attach to the Acquiring Fund, enforceable against the
Acquiring Fund to the same extent as if initially incurred by the Acquiring
Fund.
(c) Within a reasonable time prior to the Closing Date (but in no event
until after the Holding Company Merger Date), Achievement Funds shall provide,
if requested, the Target Fund's Assets List to ▇▇▇▇▇ Fargo Funds. The parties
agree that the Target Fund may sell any asset on the Assets List prior to the
Target Fund's Effective Time. Within a reasonable time after receipt of the
Assets List and prior to the Closing Date, ▇▇▇▇▇ Fargo Funds will advise
Achievement Funds in writing of any investments shown on the Assets List that
▇▇▇▇▇ Fargo Funds has reasonably determined to be impermissible or inconsistent
with the fundamental investment objective, policies and restrictions of the
Acquiring Fund. Upon request of ▇▇▇▇▇ Fargo Funds, Achievement Funds will seek
to dispose of any such securities prior to the Closing Date to the extent
practicable and consistent with applicable legal requirements, including the
Target Fund's investment objectives, policies and restrictions. In addition, if
▇▇▇▇▇ Fargo Funds determines that, as a result of the Reorganization, the
Acquiring Fund would own an aggregate
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amount of an investment that would exceed a percentage limitation applicable to
the Acquiring Fund, ▇▇▇▇▇ Fargo Funds will advise Achievement Funds in writing
of any such limitation and Achievement Funds shall seek to dispose of a
sufficient amount of such investment as may be necessary to avoid exceeding the
limitation as of the Effective Time, to the extent practicable and consistent
with applicable legal requirements, including the Target Fund's investment
objectives, policies and restrictions.
(d) Achievement Funds shall assign, transfer, deliver and convey each
Target Fund's Assets to the corresponding Acquiring Fund at the Reorganization's
Effective Time on the following bases:
(1) In exchange for the transfer of the Assets, ▇▇▇▇▇ Fargo Funds
shall simultaneously issue and deliver to the Target Fund full and
fractional shares of beneficial interest of each Acquiring Class. ▇▇▇▇▇
Fargo Funds shall determine the number of shares of each Acquiring Class to
issue by dividing the net value of the Assets attributable to the
Corresponding Target Class by the net asset value of one Acquiring Class
share. Based on this calculation, ▇▇▇▇▇ Fargo Funds shall issue shares of
beneficial interest of each Acquiring Class with an aggregate net asset
value equal to the net value of the Assets of the Corresponding Target
Class.
(2) The parties shall determine the net asset value of the Acquiring
Fund shares to be delivered, and the net value of the Assets to be
conveyed, as of the Valuation Time substantially in accordance with ▇▇▇▇▇
Fargo Funds current valuation procedures, a copy of which has been
furnished to Achievement Funds. The parties shall make all computations to
the fourth decimal place or such other decimal place as the parties may
agree to in writing.
(3) Achievement Funds shall cause its custodian to transfer the
Target Fund's Assets with good and marketable title to the custodian for
the account of the corresponding Acquiring Fund. Achievement Funds shall
cause its custodian to transfer all cash in the form of immediately
available funds payable to the order of the ▇▇▇▇▇ Fargo Funds custodian for
the account of the Acquiring Fund. Achievement Funds shall cause its
custodian to transfer any Assets that were not transferred to the
corresponding Acquiring Fund's custodian at the Effective Time to the
corresponding Acquiring Fund's custodian at the earliest practicable date
thereafter.
(e) Promptly after the Closing Date, Achievement Funds will deliver to
▇▇▇▇▇ Fargo Funds a Statement of Assets and Liabilities of each Target Fund as
of the Closing Date.
4. Liquidation and Termination of Target Funds, Registration of Shares
-------------------------------------------------------------------
and Access to Records. Achievement Funds and ▇▇▇▇▇ Fargo Funds also shall take
---------------------
the following steps for each Reorganization:
(a) At or as soon as reasonably practical after the Effective Time,
Achievement Funds shall dissolve and liquidate the Target Fund in accordance
with applicable law and its
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Master Trust Agreement by transferring to shareholders of record of each
Corresponding Target Class full and fractional shares of beneficial interest of
the Acquiring Class equal in value to the shares of the Corresponding Target
Class held by the shareholder. Each shareholder also shall have the right to
receive any unpaid dividends or other distributions that Achievement Funds
declared with respect to the shareholder's Corresponding Target Class shares
before the Effective Time. ▇▇▇▇▇ Fargo Funds shall record on its books the
ownership by the shareholders of the respective Acquiring Fund shares;
Achievement Funds shall simultaneously redeem and cancel on its books all of the
issued and outstanding shares of each Corresponding Target Class. ▇▇▇▇▇ Fargo
Funds shall issue certificates representing the Acquiring Fund shares only if it
is in accordance with the then current Acquiring Fund's Declaration of Trust or
prospectus; provided, however, that ▇▇▇▇▇ Fargo Funds shall not issue
-------- -------
certificates representing Acquiring Fund shares to replace certificates
representing Target Fund shares unless the Target Fund share certificates are
first surrendered to ▇▇▇▇▇ Fargo Funds. Achievement Funds shall wind up the
affairs of the Target Fund and shall take all steps as are necessary and proper
to terminate its existence as a Massachusetts business trust as soon as is
reasonably possible after the Effective Time and in accordance with all
applicable laws and regulations. The winding-up of the affairs of a Target Fund
shall not cause the affairs of any other Target Fund to wind-up.
(b) If a former Target Fund shareholder requests a change in the
registration of the shareholder's Acquiring Fund shares to a person other than
the shareholder, ▇▇▇▇▇ Fargo Funds shall require the shareholder to (i) furnish
▇▇▇▇▇ Fargo Funds an instrument of transfer properly endorsed, accompanied by
any required signature guarantees and otherwise in proper form for transfer;
(ii) if any of the shares are outstanding in certificated form, deliver to ▇▇▇▇▇
Fargo Funds the certificate representing such shares; and (iii) pay to the
Acquiring Fund any transfer or other taxes required by reason of such
registration or establish to the reasonable satisfaction of ▇▇▇▇▇ Fargo Funds
that such tax has been paid or does not apply.
(c) At and after the Closing Date, Achievement Funds shall provide
▇▇▇▇▇ Fargo Funds and its transfer agent with immediate access to: (i) all
records containing the names, addresses and taxpayer identification numbers of
all of the Target Fund shareholders and the number and percentage ownership of
the outstanding shares of the Corresponding Target Classes owned by each
shareholder as of the Effective Time and (ii) all original documentation
(including all applicable Internal Revenue Service forms, certificates,
certifications and correspondence) relating to the Target Fund shareholders'
taxpayer identification numbers and their liability for or exemption from back-
up withholding. Prior to the Closing Date, Achievement Funds shall direct each
of its service providers that maintain records with respect to a Target Fund as
required by Section 31 of, and Rules 31a-1 and 31a-2 under, the 1940 Act to
continue to preserve and maintain such records as required by such Section and
Rules, unless ▇▇▇▇▇ Fargo Funds direct that such records be delivered to ▇▇▇▇▇
Fargo Funds or a service provider to the ▇▇▇▇▇ Fargo Funds. As soon as
practicable following the Reorganization with respect to a Target Fund,
Achievement Funds shall deliver all books and records with respect to the Target
Fund in its possession to ▇▇▇▇▇ Fargo and ▇▇▇▇▇ Fargo shall thereafter have the
responsibility to preserve and maintain, or to cause its service providers to
preserve and maintain, all such records received by it in accordance with
Section 31 of, and Rule 31a-1 and 31a-2 under, the 1940 Act.
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5. Certain Representations, Warranties and Agreements of Achievement
-----------------------------------------------------------------
Funds. Achievement Funds, on behalf of itself and, as appropriate, the Target
-----
Funds, represents and warrants to, and agrees with, ▇▇▇▇▇ Fargo Funds as
follows:
(a) Achievement Funds is a business trust duly created, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts. The Board of Trustees of Achievement Funds duly established and
designated each Target Fund as a series of Achievement Funds and each class of a
Target Fund as a class of the Target Fund. Achievement Funds is registered with
the SEC as an open-end management investment company under the 1940 Act, and
such registration is in full force and effect.
(b) Achievement Funds has the power and all necessary federal, state
and local qualifications and authorizations to own all of its properties and
Assets, to carry on its business as now being conducted and described in its
currently effective Registration Statement on Form N-1A, to enter into this Plan
and to consummate the transactions contemplated herein.
(c) The Board of Trustees of Achievement Funds has duly authorized the
execution and delivery of the Plan and the transactions contemplated herein.
Duly authorized officers of Achievement Funds have executed and delivered the
Plan. The Plan represents a valid and binding contract, enforceable in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
bankruptcy reorganization, arrangement, moratorium, and other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles. The execution and delivery of this Plan does not, and,
subject to the approval of shareholders referred to in Section 2, the
consummation of the transactions contemplated by this Plan will not, violate
Achievement Funds' Master Trust Agreement or By-Laws or any Material Agreement.
Except for the approval of Target Fund shareholders, Achievement Funds does not
need to take any other action to authorize its officers to effectuate this Plan
and the transactions contemplated herein.
(d) Each Target Fund has qualified as a regulated investment company
under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code, in respect
of each taxable year since the commencement of its operations and qualifies and
shall continue to qualify as a regulated investment company for its taxable year
ending upon its liquidation.
(e) The materials included within the N-14 Registration Statement when
filed with the SEC, when Part A of the N-14 Registration Statement is
distributed to shareholders, at the time of the Target Fund shareholder meetings
for the Reorganizations and at the Effective Time of each Reorganization,
insofar as they relate to Achievement Funds and each Target Fund shall not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein
not misleading in light of the circumstances under which they were made.
(f) Achievement Funds has duly authorized and validly issued all of the
issued and outstanding shares of each Target Fund and all of the shares are
validly outstanding, fully paid and non-assessable, and were offered for sale
and sold in conformity with the registration requirements of all applicable
federal and state securities laws. There are no outstanding options,
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warrants or other rights to subscribe for or purchase any Target Fund shares,
nor are there any securities convertible into Target Fund shares.
(g) Each Target Fund is in compliance in all material respects with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, the 1933 Act, the 1934 Act and all applicable state securities laws. Each
Target Fund is in compliance in all materials respects with the investment
policies and restrictions applicable to it set forth in the Form N-1A
Registration Statement currently in effect. The value of the net assets of each
Target Fund is determined using portfolio valuation methods that comply in all
material respects with the requirements of the 1940 Act and the policies of such
Target Fund and all purchases and redemptions of Target Fund shares have been
effected at the net asset value per share calculated in such a manner.
(h) Achievement Funds shall operate the business of each Target Fund in
the ordinary course between the date hereof and the Effective Time of the Fund's
Reorganization, it being agreed that such ordinary course of business will
include the transactions described in Subsection 3(c), the declaration and
payment of customary dividends and distributions and any other dividends and
distributions deemed advisable by mutual agreement of Achievement Funds and
▇▇▇▇▇ Fargo Funds in anticipation of the Fund's Reorganization.
(i) At a Target Fund's Effective Time, the relevant Target Fund will
have good and marketable title to the Target Fund's Assets and full right, power
and authority to assign, transfer, deliver and convey such Assets.
(j) The Target Financial Statements, copies of which have been
previously delivered to ▇▇▇▇▇ Fargo Funds, fairly present the financial position
of each Target Fund as of the Fund's most recent fiscal year-end and the results
of the Fund's operations and changes in the Fund's net Assets for the periods
indicated. The Target Financial Statements have been prepared in accordance
with generally accepted accounting principles consistently applied.
(k) To the Knowledge of Achievement Funds, no Target Fund has any
Liabilities, whether or not determined or determinable, other than the
Liabilities disclosed or provided for in the Target Financial Statements or
Liabilities incurred in the ordinary course of business subsequent to the date
of the Assets List required by Section 3(c) of this Plan.
(l) Achievement Funds does not Know of any claims, actions, suits,
investigations or proceedings of any type pending or threatened against
Achievement Funds or any Target Fund or its Assets or businesses. Achievement
Funds does not Know of any facts that it currently has reason to believe are
likely to form the basis for the institution of any such claim, action, suit,
investigation or proceeding against Achievement Funds or any Target Fund. For
purposes of this provision, investment underperformance or negative investment
performance shall not be deemed to constitute such facts, provided all customary
performance disclosures have been made. Neither Achievement Funds nor any
Target Fund is a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body that adversely affects, or is
reasonably likely to adversely affect, its financial condition, results of
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operations, business, properties or Assets or its ability to consummate the
transactions contemplated by the Plan.
(m) Except for contracts, agreements, franchises, licenses or permits
entered into or granted in the ordinary course of its business, in each case
under which no material default exists, Achievement Funds is not a party to or
subject to any material contract, debt instrument, employee benefit plan, lease,
franchise, license or permit of any kind or nature whatsoever on behalf of any
Target Fund.
(n) Achievement Funds has filed the federal income tax returns of each
Target Fund for all taxable years to and including the Fund's most recent
taxable year (unless a valid extension for filing has been properly submitted as
to any such taxable year), and has paid all taxes payable pursuant to such
returns. To the Knowledge of Achievement Funds, no such return is currently
under audit and no assessment has been asserted with respect to such returns.
Achievement Funds will file the federal income tax returns of each Target Fund
for its next taxable year (and for any previous taxable year that is subject to
a valid extension) on or before their due date, as the same may be properly
extended.
(o) Since the date of the Target Financial Statements, there has been
no material adverse change in the financial condition, results of operations,
business, properties or Assets of any Target Fund. For purposes of this
provision, investment underperformance, negative investment performance or net
redemptions shall not be deemed to constitute such facts, provided all customary
performance disclosures have been made.
6. Certain Representations, Warranties and Agreements of ▇▇▇▇▇ Fargo
-----------------------------------------------------------------
Funds. ▇▇▇▇▇ Fargo Funds, on behalf of itself and, as appropriate, the
-----
Acquiring Funds, represents and warrants to, and agrees with Achievement Funds
as follows:
(a) ▇▇▇▇▇ Fargo Funds is a business trust duly created, validly
existing and in good standing under the laws of the State of Delaware. The Board
of Trustees of ▇▇▇▇▇ Fargo Funds duly established and designated each Acquiring
Fund as a series of ▇▇▇▇▇ Fargo Funds and each Acquiring Class as a class of the
Acquiring Fund. ▇▇▇▇▇ Fargo Funds is registered with the SEC as an open-end
management investment company under the 1940 Act.
(b) ▇▇▇▇▇ Fargo Funds has the power and all necessary federal, state
and local qualifications and authorizations to own all of its properties and
Assets, to carry on its business as described in its Registration Statement on
Form N-1A as filed with the SEC, to enter into this Plan and to consummate the
transactions contemplated herein.
(c) The Board of Trustees of ▇▇▇▇▇ Fargo Funds has duly authorized
execution and delivery of the Plan and the transactions contemplated herein.
Duly authorized officers of ▇▇▇▇▇ Fargo Funds have executed and delivered the
Plan. The Plan represents a valid and binding contract, enforceable in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The execution and delivery of this Plan does not, and the
consummation of the transactions
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contemplated by this Plan will not, violate the Declaration of Trust of ▇▇▇▇▇
Fargo Funds or any Material Agreement. ▇▇▇▇▇ Fargo Funds does not need to take
any other action to authorize its officers to effectuate the Plan and the
transactions contemplated herein.
(d) Each Acquiring Fund has qualified as a regulated investment company
under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code in respect of
each taxable year since commencement of its operations and qualifies and shall
continue to qualify as a regulated investment company for its current taxable
year.
(e) The N-14 Registration Statement, when filed with the SEC, when Part
A of the N-14 Registration Statement is distributed to shareholders, at the time
of the Target Fund shareholder meetings for the Reorganizations and at the
Effective Time of each Reorganization, insofar as it relates to ▇▇▇▇▇ Fargo
Funds, the Acquiring Funds or the Acquiring Classes: (i) shall comply in all
material respects with the applicable provisions of the 1933 Act, the 1934 Act
and the 1940 Act, the rules and regulations thereunder and state securities laws
and (ii) shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein not misleading in light of the circumstances in which
they were made.
(f) ▇▇▇▇▇ Fargo Funds shall duly authorize the Acquiring Fund shares to
be issued and delivered to each Corresponding Target Fund as of the Target
Fund's Effective Time. When issued and delivered, the Acquiring Fund shares
shall have been registered for sale under the Securities Act of 1933 and shall
be duly and validly issued, fully paid and non-assessable, and no shareholder of
any Acquiring Fund shall have any preemptive right of subscription or purchase
in respect of them. There are no outstanding options, warrants or other rights
to subscribe for or purchase any Acquiring Fund shares, nor are there any
securities convertible into Acquiring Fund shares.
(g) Each Acquiring Fund is in compliance in all material respects with
all applicable laws, rules and regulations, including, without limitation, the
1940 Act, the 1933 Act, the 1934 Act and all applicable state securities laws.
Each Acquiring Fund is in compliance in all materials respects with the
investment policies and restrictions applicable to it set forth in the Form N-1A
Registration Statement currently in effect. The value of the net assets of each
Acquiring Fund is determined using portfolio valuation methods that comply in
all material respects with the requirements of the 1940 Act and the policies of
such Acquiring Fund and all purchases and redemptions of Acquiring Fund shares
have been effected at the net asset value per share calculated in such a manner.
(h) ▇▇▇▇▇ Fargo Funds does not Know of any claims, actions, suits,
investigations or proceedings of any type pending or threatened against ▇▇▇▇▇
Fargo Funds or any Acquiring Fund or its Assets or businesses. There are no
facts that ▇▇▇▇▇ Fargo Funds currently has reason to believe are likely to form
the basis for the institution of any such claim, action, suit, investigation or
proceeding against ▇▇▇▇▇ Fargo Funds or any Acquiring Fund. For purposes of
this provision, investment underperformance or negative investment performance
shall not be deemed to constitute such facts, provided all customary performance
disclosures have been made. Neither ▇▇▇▇▇ Fargo Funds nor any Acquiring Fund is
a party to or subject to the
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provisions of any order, decree or judgment of any court or governmental body
that adversely affects, or is reasonably likely to adversely affect, its
financial condition, results of operations, business, properties or Assets or
its ability to consummate the transactions contemplated by this Plan.
(i) Except for contracts, agreements, franchises, licenses or permits
entered into or granted in the ordinary course of its business, in each case
under which no material default exists, ▇▇▇▇▇ Fargo Funds is not a party to or
subject to any material contract, debt instrument, employee benefit plan, lease,
franchise, license or permit of any kind or nature whatsoever on behalf of any
Acquiring Fund.
(j) ▇▇▇▇▇ Fargo Funds has filed the federal income tax returns of each
Acquiring Fund for all taxable years to and including the Fund's most recent
taxable year, and has paid all taxes payable pursuant to such returns. To the
Knowledge of ▇▇▇▇▇ Fargo Funds, no such return is currently under audit and no
assessment has been asserted with respect to any such return. ▇▇▇▇▇ Fargo Funds
shall file the federal income tax returns of each Acquiring Fund for the Fund's
current taxable year on or before their due date, as the same may be properly
extended.
(k) Since the date of the Acquiring Fund Financial Statements, there
has been no material adverse change in the financial condition, business,
properties or Assets of any Acquiring Fund. For purposes of this provision,
investment underperformance, negative investment performance or net redemptions
shall not be deemed to constitute such facts, provided all customary performance
disclosures have been made.
(l) The Acquiring Fund Financial Statements, copies of which have been
previously delivered to Achievement Funds, fairly present the financial position
of each Acquiring Fund as of the Fund's most recent fiscal year-end and the
results of the Fund's operations and changes in the Fund's net assets for the
periods indicated. The Acquiring Fund Financial Statements have been prepared
in accordance with generally accepted accounting principles consistently
applied.
(m) To the Knowledge of ▇▇▇▇▇ Fargo Funds, no Acquiring Fund has any
Liabilities, whether or not determined or determinable, other than Liabilities
disclosed or provided for in the Acquiring Fund Financial Statements or
Liabilities incurred in the ordinary course of business.
(n) ▇▇▇▇▇ Fargo Funds shall operate the business of each Acquiring Fund
in the ordinary course between the date hereof and the Effective Time, it being
agreed that such ordinary course of business will include the declaration and
payment of customary dividends and distributions.
7. Conditions to Achievement Funds Obligations. The obligations of
-------------------------------------------
Achievement Funds with respect to each Reorganization shall be subject to the
following conditions precedent:
(a) The shareholders of the Target Fund to which the Reorganization
relates shall have approved the Reorganization in the manner required by the
Master Trust Agreement of
E-13
Achievement Funds and applicable law. If that Target Fund's shareholders fail to
approve the Reorganization, that failure shall release Achievement Funds of its
obligations under this Plan only with respect to that Reorganization and not any
other Reorganization.
(b) ▇▇▇▇▇ Fargo Funds shall have duly executed and delivered the
Acquiring Funds' Reorganization Documents to Achievement Funds.
(c) All representations and warranties of ▇▇▇▇▇ Fargo Funds made in
this Plan that apply to the Reorganization shall be true and correct in all
material respects as if made at and as of the Effective Time.
(d) ▇▇▇▇▇ Fargo Funds shall have delivered to Achievement Funds a
certificate dated as of the Closing Date and executed in its name by its
Secretary or Treasurer, in a form reasonably satisfactory to Achievement Funds,
stating that the representations and warranties of ▇▇▇▇▇ Fargo Funds in this
Plan that apply to the Reorganization are true and correct in all material
respects at and as of the Valuation Time and that it has approved the Target
Fund's Assets as being consistent with its investment objectives, policies and
restrictions and that the Target Fund's Assets may otherwise be lawfully
acquired by the Acquiring Fund.
(e) Achievement Funds shall have received an opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, as counsel to ▇▇▇▇▇ Fargo Funds, in form and substance reasonably
satisfactory to Achievement Funds and dated as of the Closing Date,
substantially to the effect that:
(1) ▇▇▇▇▇ Fargo Funds is a business trust duly created, validly
existing and in good standing under the laws of the State of Delaware and
is an open-end, management investment company registered under the 1940
Act;
(2) the shares of the Acquiring Fund to be delivered as provided for
by this Plan are duly authorized and upon delivery will be validly issued,
fully paid and non-assessable by ▇▇▇▇▇ Fargo Funds, provided that the
payments for transfer taxes by shareholders provided for in Section 4(b) of
this Plan shall not be deemed to render the shares issued assessable;
(3) the execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate the Declaration of
Trust of ▇▇▇▇▇ Fargo Funds or any Material Agreement to which ▇▇▇▇▇ Fargo
Funds is a party or by which it is bound; and
(4) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by ▇▇▇▇▇ Fargo Funds of the Reorganization, or for the
execution and delivery of ▇▇▇▇▇ Fargo Funds' Reorganization Documents,
except those that have been obtained under the 1933 Act, the 1934 Act, the
1940 Act and the rules and regulations under those Acts or that may be
required under state securities laws, the HSR Act or subsequent to the
Effective Time or when the failure to obtain the consent, approval,
authorization or order would not have a material adverse effect on the
operation of the Acquiring Fund.
E-14
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (iv) define the word "Knowledge" and related terms to
mean the Knowledge of attorneys then with such firm who have devoted substantive
attention to matters directly related to this Plan and (v) rely on certificates
of officers or trustees of ▇▇▇▇▇ Fargo Funds.
(f) Achievement Funds shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger P.A., addressed to Achievement Funds and ▇▇▇▇▇ Fargo Funds, in
form and substance reasonably satisfactory to them and dated as of the Closing
Date, substantially to the effect that this Plan has been duly authorized,
executed and delivered by Achievement Funds and ▇▇▇▇▇ Fargo Funds, and, assuming
due authorization, execution and delivery of this Plan by Achievement Funds on
behalf of the Target Fund and ▇▇▇▇▇ Fargo Funds on behalf of the Acquiring Fund,
represents a legal, valid and binding contract of each Fund, enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and transfer and similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto,
and further subject to the application of equitable principles in any proceeding
whether at law or in equity or with respect to the enforcement of provisions of
the Plan and the effect of judicial decisions which have held that certain
provisions are unenforceable when their enforcement would violate an implied
covenant of good faith and fair dealing or would be commercially unreasonable or
when default under the Plan is not material. In rendering such opinion, such
counsel may (i) make assumptions regarding the authenticity, genuineness and/or
conformity of documents and copies thereof without independent verification
thereof, (ii) limit such opinion to applicable state law, and (iii) rely on
certificates of officers or trustees of Achievement Funds and ▇▇▇▇▇ Fargo Funds.
(g) Achievement Funds shall have received an opinion from [_________],
addressed to Achievement Funds and ▇▇▇▇▇ Fargo Funds in form and substance
reasonably satisfactory to them, and dated as of the Closing Date, with respect
to the tax matters specified in Subsection 8(g).
(h) Achievement Funds shall have received (i) a memorandum addressed to
Achievement Funds and ▇▇▇▇▇ Fargo Funds, in form and substance reasonably
satisfactory to them, prepared by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, or another person
agreed to in writing by the parties, concerning compliance with each relevant
state's securities laws in connection with ▇▇▇▇▇ Fargo Funds' issuance of
Acquiring Fund shares.
(i) The N-14 Registration Statement shall have become effective under
the 1933 Act as to the Acquiring Fund's shares and the SEC shall not have
instituted or, to the Knowledge of ▇▇▇▇▇ Fargo Funds, contemplated instituting,
any stop order suspending the effectiveness of the N-14 Registration Statement.
(j) 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, the
Reorganization.
E-15
(k) The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking to enjoin
consummation of the Reorganization under Section 25(c) of the 1940 Act.
(l) ▇▇▇▇▇ Fargo Funds shall have performed and complied in all material
respects with each of its agreements and covenants required by this Plan to be
performed or complied with by it prior to or at the Reorganization's Valuation
Time and Effective Time.
(m) Achievement Funds shall have received from ▇▇▇▇▇ Fargo Funds a duly
executed instrument whereby the Acquiring Fund assumes all of the Liabilities of
or attributable to the Target Fund.
(n) Achievement Funds shall have received a letter dated as of the
Closing Date from KPMG LLP addressed to Achievement Funds and ▇▇▇▇▇ Fargo Funds
in form and substance reasonably satisfactory to them to the effect that on the
basis of limited procedures as agreed to by Achievement Funds and ▇▇▇▇▇ Fargo
Funds and described in such letter (but not an examination in accordance with
generally accepted auditing standards):
(1) nothing came to their attention that caused them to believe that
the relevant unaudited pro forma financial statements included in the N-14
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X
or that the relevant pro forma adjustments have not properly been applied
to the historical amounts in the compilation of those amounts;
(2) the data used in the calculation of the current and pro forma
expense ratios of the Target Fund and the Acquiring Fund appearing in the
N-14 Registration Statement, including the proxy materials, agree with the
underlying accounting records of the Target Fund and the Acquiring Fund, as
appropriate, or with written estimates provided by officers of Achievement
Funds or ▇▇▇▇▇ Fargo Funds, as appropriate, having responsibility for
financial and reporting matters; and
(3) the information relating to the Acquiring Fund and the Target
Fund appearing in the N-14 Registration Statement that is expressed in
dollars or percentages of dollars has been obtained from the accounting
records of the Acquiring Fund or the Target Fund, as appropriate, or from
schedules prepared by officers of Achievement Funds or ▇▇▇▇▇ Fargo Funds,
as appropriate, having responsibility for financial and reporting matters
and such information is in agreement with such records or schedules or with
computations made therefrom.
(o) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
(p) The parties shall have received any necessary order of the SEC
providing them with any necessary relief from the 1940 Act to permit the
Reorganization.
E-16
8. Conditions to ▇▇▇▇▇ Fargo Funds Obligations. The obligations of ▇▇▇▇▇
-------------------------------------------
Fargo Funds with respect to each Reorganization shall be subject to the
following conditions precedent:
(a) The shareholders of the Target Fund to which the Reorganization
relates shall have approved the Reorganization in the manner required by the
Master Trust Agreement of Achievement Funds and applicable law. If that Target
Fund's shareholders fail to approve the Reorganization, that failure shall
release ▇▇▇▇▇ Fargo Funds of its obligations under this Plan only with respect
to that Reorganization, and not any other Reorganization.
(b) Achievement Funds shall have duly executed and delivered the Target
Fund Reorganization Documents to ▇▇▇▇▇ Fargo Funds.
(c) All representations and warranties of Achievement Funds made in
this Plan that apply to the Reorganization shall be true and correct in all
material respects as if made at and as of the Valuation Time and the Effective
Time.
(d) Achievement Funds shall have delivered to ▇▇▇▇▇ Fargo Funds a
certificate dated as of the Closing Date and executed in its name by its
Treasurer or Secretary, in a form reasonably satisfactory to ▇▇▇▇▇ Fargo Funds,
stating that the representations and warranties of Achievement Funds in this
Plan that apply to the Reorganization are true and correct at and as of the
Valuation Time.
(e) ▇▇▇▇▇ Fargo Funds shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, as counsel to Achievement Funds, in form and substance
reasonably satisfactory to ▇▇▇▇▇ Fargo Funds and dated as of the Closing Date,
substantially to the effect that:
(1) Achievement Funds is a business trust duly created, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts and is an open-end, management investment company registered
under the 1940 Act;
(2) this Plan has been duly authorized, executed and delivered by
Achievement Funds;
(3) the execution and delivery of this Plan did not, and the
consummation of the Reorganization will not, violate the Master Trust
Agreement or By-Laws of Achievement Funds or any Material Agreement to
which Achievement Funds is a party or by which it is bound; and
(4) to the Knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by Achievement Funds of the Reorganization, or the
execution and delivery of the Achievement Funds Reorganization Documents,
except those that have been obtained under the 1933 Act, the 1934 Act, the
1940 Act and the rules and regulations under those Acts, or that may be
required under state securities laws, the HSR Act or subsequent to
E-17
the Effective Time or when the failure to obtain the consent, approval,
authorization or order would not have a material adverse effect on the
operation of the Target Fund.
In rendering such opinion, such counsel may (i) rely on the opinion of other
counsel to the extent set forth in such opinion, (ii) make assumptions regarding
the authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (iv) define the word "Knowledge" and related terms to
mean the Knowledge of attorneys then with such firm who have devoted substantive
attention to matters directly related to this Plan and (v) rely on certificates
of officers or trustees of Achievement Funds.
(f) ▇▇▇▇▇ Fargo Funds shall have received an opinion from ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger P.A., addressed to Achievement Funds and ▇▇▇▇▇ Fargo Funds in
form and substance reasonably satisfactory to them and dated as of the closing
date, with respect to the matters set forth in subsection 7(f).
(g) ▇▇▇▇▇ Fargo Funds shall have received an opinion of [_________],
addressed to Achievement Funds and ▇▇▇▇▇ Fargo Funds in form and substance
reasonably satisfactory to them, based upon representations made in certificates
provided by Achievement Funds and ▇▇▇▇▇ Fargo Funds, their affiliates and/or
principal shareholders and dated as of the Closing Date, substantially to the
effect that, for federal income tax purposes:
(1) The Reorganization will constitute a "reorganization" within the
meaning of Section 368(a). Each Acquiring Fund and the corresponding Target
Fund will be a "party to a reorganization." Section 368(b).
(2) Each Target Fund's shareholders will recognize no gain or loss
on their receipt of voting shares of the corresponding Acquiring Fund in
exchange for their voting shares of the Target Fund pursuant to the
Reorganization. Section 354(a)(1).
(3) No Target Fund will recognize gain or loss on the transfer of
all of its assets to the corresponding Acquiring Fund solely in exchange
for voting shares of the Acquiring Fund and the assumption by the Acquiring
Fund of certain Target Fund liabilities pursuant to the Reorganization.
Sections 357(a) and 361(a).
(4) No Target Fund will recognize gain or loss on its distribution
of voting shares of the corresponding Acquiring Fund to its shareholders
pursuant to the liquidation of the Target Fund. Section 361(c).
(5) No Acquiring Fund will recognize gain or loss on its acquisition
of all of the assets of the corresponding Target Fund solely in exchange
for voting shares of such Acquiring Fund and the assumption by such
Acquiring Fund of the Target Fund's liabilities. Section 1032(a).
(6) The basis of each of the voting shares of an Acquiring Fund
received by the corresponding Target Fund's shareholders pursuant to the
Reorganization will equal
E-18
the basis of the voting shares of the Target Fund surrendered in exchange
therefor. Section 358(a)(1).
(7) The holding period of the voting shares of an Acquiring Fund
received by the corresponding Target Fund's shareholders pursuant to the
Reorganization will include the period that the shareholders held the
voting shares of the Target Fund exchanged therefor, provided that the
shareholders held such shares as a capital asset on the date of the
Reorganization. Section 1223(1).
(8) Each Acquiring Fund's basis in the assets of the corresponding
Target Fund received pursuant to the Reorganization will equal the Target
Fund's basis in the assets immediately before the Reorganization. Section
362(b).
(9) Each Acquiring Fund's holding period in the Target Fund assets
received pursuant to the Reorganization will include the period during
which the corresponding Target Fund held the assets. Section 1223(2).
(10) Each Acquiring Fund will succeed to and take into account the
items of the corresponding Target Fund described in Section 381(c),
including the earnings and profits, or deficit in earnings and profits, of
the corresponding Target Fund as of the date of the Reorganization. Each
Acquiring Fund will take these items into account subject to the conditions
and limitations specified in Sections 381, 382, 383 and 384 and applicable
regulations thereunder.
(h) The N-14 Registration Statement shall have become effective under
the 1933 Act as to the Acquiring Fund's shares and no stop order suspending the
effectiveness of the N-14 Registration Statement shall have been instituted or,
to the Knowledge of ▇▇▇▇▇ Fargo Funds, contemplated by the SEC.
(i) No action, suit or other proceeding shall be threatened or pending
before any court or governmental agency in which it is sought to restrain or
prohibit or obtain damages or other relief in connection with the
Reorganization.
(j) The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking to enjoin
consummation of the Reorganization under Section 25(c) of the 1940 Act.
(k) Achievement Funds shall have performed and complied in all material
respects with each of its agreements and covenants required by this Plan to be
performed or complied with by it prior to or at the Reorganization's Valuation
Time and Effective Time.
(l) Achievement Funds shall have taken all steps required to terminate
any agreements with its service providers and shall have discharged any and all
payment obligations under such agreements.
E-19
(m) ▇▇▇▇▇ Fargo Funds shall have received a letter from KPMG LLP
addressed to Achievement Funds and ▇▇▇▇▇ Fargo Funds as described in Subsection
7(n).
(n) Except to the extent prohibited by Rule 19b-1 under the 1940 Act,
the Target Fund shall have declared a dividend or dividends that, together with
all previous such dividends, shall have the effect of distributing to the Target
Fund shareholders substantially all investment company taxable income of or
attributable to the Target Fund earned prior to the Closing Date and
substantially all net capital gain of or attributable to the Target Fund
realized prior to such date.
(o) Neither party shall have terminated this Plan with respect to the
Reorganization pursuant to Section 10 of this Plan.
(p) The parties shall have received any necessary order of the SEC
providing them with any relief from the 1940 Act to permit the Reorganization.
9. Survival of Representations and Warranties. The representations and
------------------------------------------
warranties of the parties hereto shall survive the completion of the
transactions contemplated herein.
10. Termination of Plan. A majority of a party's Board of Trustees may
-------------------
terminate this Plan with respect to any Acquiring Fund or Target Fund, as
appropriate if: (i) the party's conditions precedent set forth in Sections 7 or
8, as appropriate, are not satisfied on the Closing Date; (ii) it becomes
reasonably apparent to the party's Board of Trustees that the other party will
not be able to satisfy such conditions precedent on the Closing Date; or (iii)
the party's Board of Trustees determines that the consummation of the applicable
Reorganization is not in the best interests of shareholders and gives notice to
the other party. The termination of this Plan with respect to an Acquiring Fund
and its Corresponding Target Fund shall not affect the survival of the Plan with
respect to any other Acquiring Fund or Target Fund.
11. Governing Law. This Plan and the transactions contemplated hereby
-------------
shall be governed, construed and enforced in accordance with the laws of the
State of Delaware, except to the extent preempted by federal law, without regard
to conflicts of law principles.
12. Finders Fees. Each party represents and warrants that there are no
------------
brokers or finders entitled to receive any payments in connection with the
transactions provided for in this Plan.
13. Amendments. The parties may, by agreement in writing authorized by
----------
their respective Boards of Trustees, amend this Plan with respect to any
Reorganization at any time before or after the Target Fund's shareholders
approve the Reorganization. However, after a Target Fund's shareholders approve
a Reorganization, the parties may not amend this Plan in a manner that
materially adversely affects the interests of the Target Fund's shareholders
with respect to that Reorganization. This Section shall not preclude the parties
from changing the Closing Date or the Effective Time of a Reorganization by
mutual agreement.
E-20
14. Waivers. At any time prior to the Closing Date, either party may by
-------
written instrument signed by it (i) waive the effect of any inaccuracies in the
representations and warranties made to it contained herein and (ii) waive
compliance with any of the agreements, covenants or conditions made for its
benefit contained herein. The parties agree that any waiver shall apply only to
the particular inaccuracy or requirement for compliance waived, and not any
other or future inaccuracy or lack of compliance.
15. Indemnification of Trustees. ▇▇▇▇▇ Fargo Funds shall indemnify,
---------------------------
defend and hold harmless Achievement Funds, its officers, trustees, employees
and agents against all losses, claims, demands, liabilities and expenses,
including reasonable legal and other expenses incurred in defending claims or
liabilities, whether or not resulting in any liability of Achievement Funds, its
officers, trustees, employees or agents, arising out of our based on (i) any
material breach by ▇▇▇▇▇ Fargo Funds of any of its representations, warranties
or agreements set forth in this Agreement, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement on Form N-1A or Form N-14 for ▇▇▇▇▇ Fargo Funds that is used in
connection with the Reorganization. ▇▇▇▇▇ Fargo Funds also agrees that it will
assume all liabilities and obligations of Achievement Funds relating to any
obligation of Achievement Funds to indemnify its current and former Trustees and
officers, acting in their capacities as such, to the fullest extent permitted by
law and Achievement Funds' Master Trust Agreement, as in effect as of the date
of this Plan. ▇▇▇▇▇ Fargo Funds also agrees that all rights to indemnification
and all limitations of liability existing in favor of the current and former
Trustees and officers, acting in their capacities as such, under the Achievement
Funds Master Trust Agreement as in effect as of the date of this Plan shall
survive the Reorganizations and shall continue in full force and effect, without
any amendment thereto, and shall constitute rights which may be asserted against
▇▇▇▇▇ Fargo Funds, its successors and assigns.
16. Cooperation and Further Assurances. Each party will cooperate with
----------------------------------
the other in fulfilling its obligations under this Plan and will provide such
information and documentation as is reasonably requested by the other in
carrying out this Plan's terms. Each party will provide such further assurances
concerning the performance of obligations under this Plan and the consummation
of the Reorganizations as the other shall deem necessary, advisable or
appropriate.
17. Updating of N-14 Registration Statement. If at any time prior to the
---------------------------------------
Effective Time of a Reorganization a party becomes aware of any untrue statement
of material fact or omission to state a material fact required to be stated
therein or necessary to make the statements made not misleading in light of the
circumstances under which they were made in the N-14 Registration Statement, as
appropriate, the party discovering the item shall notify the other party and the
parties shall cooperate in promptly preparing, filing and clearing with the SEC
and, if appropriate, distributing to shareholders appropriate disclosure with
respect to the item.
18. Limitation on Liabilities. The obligations of Achievement Funds,
-------------------------
▇▇▇▇▇ Fargo Funds and each Fund shall not bind any of the Trustees,
shareholders, nominees, officers, agents, or employees of Achievement Funds or
▇▇▇▇▇ Fargo Funds personally, but shall bind only the Assets and property of the
Acquiring Funds and Target Funds. The execution and delivery of this Plan by the
parties' officers shall not be deemed to have been made by any of them
E-21
individually or to impose any liability on any of them personally, but shall
bind only the Assets and the property of the Acquiring Funds or Target Funds, as
appropriate.
19. Termination of Achievement Funds. If the parties complete every
--------------------------------
Reorganization, Achievement Funds shall terminate its registration under the
1940 Act and terminate its existence as a Massachusetts business trust.
20. Notices. Any notice, report, statement, certificate or demand
-------
required or permitted by any provision of this Plan shall be in writing and
shall be given by prepaid telegraph, telecopy, certified mail or overnight
express courier to:
For Achievement Funds:
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
For ▇▇▇▇▇ Fargo Funds:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇▇ Fargo Funds Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
C. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
▇▇▇▇▇ Fargo Funds Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
21. General. This Plan supersedes all prior agreements between the
-------
parties (written or oral), is intended as a complete and exclusive statement of
the terms of the agreement between the parties and may not be changed or
terminated orally. The parties may execute this Plan in counterparts, which
shall be considered one and the same agreement, and shall become effective when
the counterparts have been executed by and delivered to both parties. The
headings contained in this Plan are for reference only and shall not affect in
any way the meaning or interpretation of this Plan. Nothing in this Plan,
expressed or implied, confers upon any other person any rights or remedies under
or by reason of this Plan. Neither party may assign or transfer any right or
obligation under this Plan without the written consent of the other party.
E-22
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers designated below to execute this Plan as of the date first written
above.
▇▇▇▇▇ FARGO FUNDS TRUST
ATTEST:
_____________________________ By:_____________________________
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary Title: President
ACHIEVEMENT FUNDS
_____________________________ By:_____________________________
Name: __________________ Name: __________________
Title:__________________ Title: _________________
E-23
SCHEDULE A
I. Corresponding Classes Table:
---------------------------
-------------------------------------------------------------------------------------------------------------------
Corresponding Target Classes Acquiring Fund Classes
-------------------------------------------------------------------------------------------------------------------
Equity Fund Growth Fund
Class A Class A
Class B Class B
Class I Class I
-------------------------------------------------------------------------------------------------------------------
Balanced Fund Asset Allocation Fund
Class A Class A
Class B Class B
Class I Class I
-------------------------------------------------------------------------------------------------------------------
Municipal Bond Fund National Tax-Free Fund
Class A Class A
Class B Class B
Class I Class I
-------------------------------------------------------------------------------------------------------------------
Idaho Municipal Bond Fund National Tax-Free Fund
Class A Class A
Class B Class B
Class I Class I
-------------------------------------------------------------------------------------------------------------------
Intermediate Term Bond Fund Income Fund
Class A Class A
Class I Class I
-------------------------------------------------------------------------------------------------------------------
Short Term Bond Fund Stable Income Fund
Class A Class A
Class I Class I
-------------------------------------------------------------------------------------------------------------------
E-24
SCHEDULE B
MATERIAL AGREEMENTS
The following agreements shall be Material Agreements for Achievement Funds:
Investment Advisory Agreement between First Security Investment Management, Inc.
and Achievement Funds dated December 27, 1994.
Distribution Agreement between SEI Investments Distribution Co. and Achievement
Funds dated December 27, 1994.
Custody Agreement between First Union National Bank and Achievement Funds dated
December 27, 1994.
Administration Agreement between SEI Investments Mutual Funds Services and
Achievement Funds dated December 27, 1994.
Transfer Agency Agreement between DST Systems, Inc. and Achievement Funds dated
December 27, 1994.
Shareholder Servicing Agreement approved by the Board of Achievement Funds on
__________.
The following agreements shall be Material Agreements for ▇▇▇▇▇ Fargo Funds:
Investment Advisory Contract between ▇▇▇▇▇ Fargo Bank, N.A. ("▇▇▇▇▇ Fargo Bank")
----------------
and ▇▇▇▇▇ Fargo Funds, dated November 8, 1999.
Sub-Advisory Contract between Barclays Global Fund Advisors, ▇▇▇▇▇ Fargo Bank
and ▇▇▇▇▇ Fargo Funds, dated November 8, 1999.
Sub-Advisory Contract between Galliard Capital Management, Inc., ▇▇▇▇▇ Fargo
Bank and ▇▇▇▇▇ Fargo Funds, dated November 8, 1999.
Sub-Advisory Contract between ▇▇▇▇▇ Capital Management, Incorporated, ▇▇▇▇▇
Fargo Bank and ▇▇▇▇▇ Fargo Funds, dated November 8, 1999.
Distribution Agreement between ▇▇▇▇▇▇▇▇, Inc. and ▇▇▇▇▇ Fargo Funds,
dated November 8, 1999.
Custody Agreement between Barclays Global Investors, N.A. and ▇▇▇▇▇ Fargo Funds,
dated November 8, 1999.
Custody Agreement between Norwest Bank Minnesota, N.A. and ▇▇▇▇▇ Fargo Funds,
dated November 8, 1999.
E-25
Administration Agreement between ▇▇▇▇▇ Fargo Bank and ▇▇▇▇▇ Fargo Funds
dated November 8, 1999.
Fund Accounting Agreement between Forum Accounting Services, LLC and ▇▇▇▇▇ Fargo
Funds, dated November 8, 1999.
Transfer Agency and Service Agreement between Boston Financial Data Services,
Inc. and ▇▇▇▇▇ Fargo Funds, dated November 8, 1999.
Shareholder Servicing Agreement approved by the Board of ▇▇▇▇▇ Fargo Funds
on March 26, 1999.
Fee and Expense Agreement between ▇▇▇▇▇ Fargo Funds and ▇▇▇▇▇ Fargo Bank,
dated July 25, 2000.
E-26