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EXHIBIT (4.1)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement")
is made as of this ____ day of ______, 2000, by and between Dresdner RCM Capital
Funds, Inc., a Maryland corporation (the "Capital Company") on behalf of its
Dresdner RCM MidCap Fund series ("MidCap Fund"), Dresdner RCM
InternationalGrowth Equity Fund series ("International Fund"), and Dresdner RCM
Small Cap Fund series ("Small Cap Fund"), and Dresdner RCM Global Funds, Inc., a
Maryland corporation (the "Global Company") on behalf of its Dresdner RCM MidCap
Fund series ("New MidCap Fund"), Dresdner RCM International Growth Equity Fund
series ("New International Fund"), and Dresdner RCM Small Cap Fund series ("New
Small Cap Fund").
WHEREAS, the parties wish to enter into a plan of
reorganization (the "Plan") which will consist, among other things, of the
transfer of assets of MidCap Fund to New MidCap Fund in exchange for shares of
common stock of New MidCap Fund ("New MidCap Shares"), the transfer of assets of
International Fund to New International Fund in exchange for shares of common
stock of New International Fund ("New International Shares"), and the transfer
of assets of Small Cap Fund to New Small Cap Fund in exchange for shares of
common stock of New Small Cap Fund ("New Small Cap Shares");
WHEREAS, the Board of Directors of the Capital Company,
including a majority of the Directors who are not "interested persons" of the
Capital Company, as defined in the Investment Company Act of 1940, as amended
(the "1940 Act"), has determined that the Plan is in the best interests of the
shareholders of MidCap Fund, International Fund and Small Cap Fund,
respectively, and that their interests would not be diluted as a result of the
transactions contemplated thereby; and
WHEREAS, the Board of Directors of the Global Company,
including a majority of the Directors who are not "interested persons" of the
Global Company, as defined in the 1940 Act, has determined that the Plan is in
the best interests of each of the sole shareholders of New MidCap Fund, New
International Fund and New Small Cap Fund, respectively, each of which is a
newly created series of the Global Company formed for the specific purpose of
entering into the Plan, and that the interests of each of the sole shareholders
of each of New MidCap Fund, New International Fund and New Small Cap Fund would
not be diluted as a result of the transactions contemplated thereby.
NOW THEREFORE, in consideration of the agreements contained in
this Agreement, the parties agree as follows:
ARTICLE 1
TRANSFER OF ASSETS AND LIABILITIES
1.1 TRANSFER OF ASSETS AND LIABILITIES. Subject to the terms and
conditions set forth herein, on the Closing Date (as hereafter defined), MidCap
Fund shall transfer all of its assets to New MidCap Fund, International Fund
shall transfer all of its assets to New International Fund, and Small Cap Fund
shall transfer all of its assets to New Small Cap Fund. In exchange therefor,
New MidCap Fund shall assume all of the liabilities of MidCap Fund and deliver
to MidCap Fund a number of New MidCap Shares which is equal to (i) the aggregate
net asset value of MidCap Fund
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at the close of business on the date preceding the Closing Date, divided by
(ii) the net asset value per share of New MidCap Fund outstanding as of the
close of business on such day; New International Fund shall assume all of the
liabilities of International Fund and deliver to International Fund a number
of New International Shares which is equal to (i) the aggregate net asset
value of International Fund at the close of business on the day preceding the
Closing Date, divided by (ii) the net asset value per share of New
International Fund outstanding as of the close of business on such day; and
New Small Cap Fund shall assume all of the liabilities of Small Cap Fund and
deliver to Small Cap Fund a number of New Small Cap Shares which is equal to
(i) the aggregate net asset value of Small Cap Fund at the close of business
on the day preceding the Closing Date, divided by (ii) the net asset value
per share of New Small Cap Fund outstanding as of the close of business on
such day.
1.2 LIQUIDATION OF MIDCAP FUND, INTERNATIONAL FUND AND SMALL CAP FUND.
Subject to the terms and conditions set forth herein, on the Closing Date each
of MidCap Fund, International Fund and Small Cap Fund shall liquidate and shall
distribute pro rata to its shareholders of record, determined as of the close of
business on the day preceding the Closing Date, the New MidCap Shares, New
International Shares and New Small Cap Shares, respectively, received by it
pursuant to Section 1.1.
1.3 NO ISSUANCE OF SHARE CERTIFICATES. The liquidation and distribution
of MidCap Fund, International Fund and Small Cap Fund provided for herein shall
be accomplished by opening accounts on the books of each of New MidCap Fund, New
International Fund and New Small Cap Fund, respectively, in the names of its
respective shareholders and transferring to its respective shareholders New
MidCap Shares, New International Shares and New Small Cap Shares, respectively,
credited to the account of MidCap Fund, International Fund and Small Cap Fund,
respectively, on the books of New MidCap Fund, New International Fund and New
Small Cap Fund. No certificates evidencing New MidCap Shares, New International
Shares or New Small Cap Shares shall be issued.
1.4 TIME AND DATE OF COMPUTATION. The number of Shares to be issued by
New MidCap Fund to MidCap Fund, New International Fund to International Fund,
and New Small Cap Fund to Small Cap Fund shall be computed as of 4:30 p.m.
(Eastern time) on the date preceding the Closing Date in accordance with the
regular practices of MidCap Fund, International Fund, Small Cap Fund and the
Capital Company.
1.5 CLOSING TIME AND PLACE. The Closing Date shall be ___________,
2000, or such later date on which all of the conditions set forth in Article 2
have been fulfilled or otherwise waived by the parties hereto, but in any event
not later than _____________, 2000, or such later date as the parties may
mutually agree. All acts taking place on the Closing Date shall be deemed to be
taking place simultaneously as of the commencement of business on the Closing
Date, unless otherwise provided. The closing of the reorganization contemplated
by the Plan (the "Closing") shall be held at 10:00 a.m. (Pacific time) at the
offices of the Global Company, Four Embarcadero Center, San Francisco,
California, or such other time and/or place as the parties may mutually agree.
1.6 DELAY OF VALUATION. If on the day preceding the Closing Date (a)
the primary trading market for portfolio securities of either party is closed to
trading or trading thereon is restricted, or (b) trading or the reporting of
trading is disrupted so that an accurate appraisal of the value of the net
assets of either party and an accurate calculation of the number of shares held
by each shareholder is impracticable, the Closing Date shall be postponed until
the first business day after the day when trading shall have been fully resumed
and reporting shall have been restored.
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1.7 TERMINATION OF MIDCAP FUND, INTERNATIONAL FUND, SMALL CAP FUND AND
CAPITAL COMPANY. As promptly as practicable after the Closing, each of MidCap
Fund, International Fund, Small Cap Fund and Capital Company shall dissolve.
ARTICLE 2
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE REORGANIZATION
The respective obligation of each party to effect the
reorganization contemplated by this Agreement is subject to the satisfaction or
waiver on or prior to the Closing Date of the following conditions:
2.1 SHAREHOLDER APPROVAL. On or prior to the Closing Date, the
shareholders of MidCap Fund, International Fund and Small Cap Fund shall have
approved the transactions contemplated by this Agreement in accordance with the
provisions of Maryland law and the 1940 Act.
2.2 NO INJUNCTIONS OR RESTRAINTS. On the Closing Date, no action, suit
or other proceeding shall be pending before any court or government agency which
seeks to restrain or prohibit or obtain damages or other relief in connection
with this Agreement or the transactions contemplated hereby.
2.3 CONSENTS. All consents of the other party and all other consents,
orders and permits of Federal, state and local regulatory authorities deemed
necessary by the Capital Company to permit consummation, in all material
respects, of the transactions contemplated herein 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
either party or the Capital Company.
2.4 EFFECTIVE REGISTRATION STATEMENT. The Form N-1A Registration
Statement of the Global Company and the Form N-14 Registration Statement of the
Global Company with respect to the New MidCap Shares, New International Shares
and New Small Cap Shares shall have become effective and continue to be
effective and no stop orders 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.
2.5 TAX OPINION. The parties shall have received an opinion of Paul,
Hastings, Janofsky & Walker LLP substantially to the effect that for Federal
income tax purposes:
(a) The transfer of MidCap Fund, International Fund and Small Cap
Fund assets to New MidCap Fund, New International Fund and New
Small Cap Fund, respectively, in exchange for New MidCap
Shares, New International Shares and New Small Cap Shares,
respectively, and the distribution of New MidCap Shares, New
International Shares and New Small Cap Shares to the
shareholders of MidCap Fund, International Fund and Small Cap
Fund, respectively, in liquidation of MidCap Fund,
International Fund and Small Cap Fund will constitute a
"reorganization" (the "Reorganization") within the meaning of
Section 368 of the Internal Revenue Code of 1986, as amended;
(b) No gain or loss will be recognized by New MidCap Fund, New
International Fund and New Small Cap Fund upon the receipt of
the assets of MidCap Fund,
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International Fund and Small Cap Fund, respectively, solely
in exchange for New MidCap Shares, New International Shares
and New Small Cap Shares, respectively;
(c) No gain or loss will be recognized by any of MidCap Fund,
International Fund and Small Cap Fund upon the transfer of its
assets to New MidCap Fund, New International Fund and New
Small Cap Fund, respectively, in exchange for New MidCap
Shares, New International Shares and New Small Cap Shares,
respectively;
(d) No gain or loss will be recognized by any shareholder of
MidCap Fund, International Fund and Small Cap Fund upon
exchange of its MidCap Fund, International Fund and Small Cap
Fund shares for New MidCap Shares, New International Shares
and New Small Cap Shares, respectively;
(e) The tax basis of the assets of MidCap Fund, International Fund
and Small Cap Fund acquired by New MidCap Fund, New
International Fund and New Small Cap Fund, respectively, will
be the same as the tax basis of such assets to MidCap Fund,
International Fund and Small Cap Fund, respectively,
immediately prior to the reorganization;
(f) The tax basis of New MidCap Shares, New International Shares
and New Small Cap Shares received by each shareholder of
MidCap Fund, International Fund and Small Cap Fund,
respectively, pursuant to the reorganization will be the same
as the tax basis of MidCap Fund shares, International Fund
shares and Small Cap Fund shares, respectively, held by such
shareholder immediately prior to the reorganization;
(g) The holding period of the assets of MidCap Fund, International
Fund and Small Cap Fund acquired by New MidCap Fund, New
International Fund and New Small Cap Fund, respectively will
include the period during which those assets were held by
MidCap Fund, International Fund and Small Cap Fund,
respectively; and
(h) The holding period of the New MidCap Shares, New International
Shares and New Small Cap Shares to be received by each
shareholder of MidCap Fund, International Fund and Small Cap
Fund will include the period during which the MidCap Fund
shares, International Fund shares and Small Cap Fund shares
exchanged therefor were held by such shareholder.
2.6 COVENANTS, REPRESENTATIONS AND WARRANTIES. Each party shall have
performed all of its covenants set forth in Article 4, and its representations
and warranties set forth in Article 3 shall be true and correct in all material
respects on and as of the Closing Date as if made on such date, and each of the
President of the Global Company and the President of the Capital Company shall
have executed a certificate to such effect.
2.7 STATEMENT OF ASSETS AND LIABILITIES. Each of MidCap Fund,
International Fund and Small Cap Fund shall have delivered to the Global Company
on the Closing Date a statement of its assets and liabilities, prepared in
accordance with generally accepted accounting principles consistently applied,
together with a certificate of its Treasurer or Assistant Treasurer as to its
portfolio securities and the federal income tax basis and holding period as of
the Closing Date.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The parties represent and warrant as follows:
3.1 STRUCTURE AND STANDING. Each party represents and warrants that it
is duly organized as a Maryland corporation, is validly existing and in good
standing under the laws of the State of Maryland, and has the power to own all
of its properties and assets and conduct its business.
3.2 POWER. Each party represents and warrants that it has full power
and authority to enter into and perform its obligations under this Agreement;
the execution, delivery and performance of this Agreement has been duly
authorized by all necessary action of its Board of Directors; this Agreement
does not violate, and its performance will not result in violation of, any
provision of its Articles of Incorporation, Bylaws, or any agreement, instrument
or other undertaking to which it is a party or by which it is bound; and this
Agreement constitutes its valid and binding contract enforceable in accordance
with its terms, subject to the effects of bankruptcy, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto.
3.3 LITIGATION. Each party represents and warrants that no litigation
or administrative proceeding or investigation of or before any court or
governmental body is currently pending against it and, to the best of its
knowledge, none is threatened against it or any of its properties or assets,
which, if adversely determined, would materially and adversely affect its
financial condition or the conduct of its business; it knows of no facts which
might form the basis for the institution of such proceedings; and it 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.
3.4 FUND ASSETS. Each of MidCap Fund, International Fund and Small Cap
Fund represents and warrants that on the Closing Date the assets received by New
MidCap Fund, New International Fund and New Small Cap Fund from MidCap Fund,
International Fund and Small Cap Fund, respectively, will be delivered to New
MidCap Fund, New International Fund and New Small Cap Fund, respectively, as
provided in Section 1.1 free and clear of all liens, pledges, security
interests, charges or other encumbrances of any nature whatsoever created by
MidCap Fund, International Fund and Small Cap Fund and without any restriction
upon the transfer thereof, except for such liabilities assumed as provided in
Section 1.1.
3.5 THE SHARES. Each of New MidCap Fund, New International Fund and New
Small Cap Fund represents and warrants that on the Closing Date (a) the New
MidCap Shares, New International Shares and New Small Cap Shares, respectively,
to be delivered to MidCap Fund, International Fund and Small Cap Fund as
contemplated in this Agreement will be duly authorized, validly issued, fully
paid and nonassessable; (b) no shareholder of New MidCap Fund, New International
Fund or New Small Cap Fund or any other series of the Global Company has any
preemptive right to subscription or purchase in respect thereof; (c) MidCap
Fund, International Fund and Small Cap Fund will acquire the New MidCap Shares,
New International Shares and New Small Cap Shares, respectively, free and clear
of all liens, pledges, security interests, charges or other encumbrances of any
nature whatsoever created by the Global Company and without any restriction on
the transfer thereof; and (d) the New MidCap Shares, New International Shares
and New Small Cap Shares will be duly qualified for offering to the public in
all of the states of the
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United States in which such qualification is required or an exemption from
such requirement shall have been obtained.
3.6 TAX STATUS AND FILINGS. Each party represents and warrants that it
has satisfied the requirements of Subchapter M of the Code for treatment as a
regulated investment company and has elected (or, in the case of New MidCap
Fund, New International Fund and New Small Cap Fund, will elect) to be treated
as such; it has filed or furnished all federal, state, and other tax returns and
reports required by law to have been filed or furnished, and it has paid or made
provision for payment of, so far as due, all federal, state and other taxes,
interest and penalties; that no such return is currently being audited; and that
no assessment has been asserted with respect to any such returns or reports.
3.7 ACCURACY OF INFORMATION. Each party represents and warrants that
all information furnished by it to the other party for use in any documents
which may be necessary in connection with the transactions contemplated by this
Agreement will be accurate and complete and will comply in all material respects
with federal securities and other laws and regulations applicable thereto.
3.8 ACQUISITION OF THE SHARES. Each of MidCap Fund, International Fund
and Small Cap Fund represents and warrants that the New MidCap Shares, New
International Shares and New Small Cap Shares, respectively, it acquires
pursuant to this Agreement are not being acquired for the purpose of making any
distribution thereof, except in accordance with the terms of this Agreement.
3.9 THE GLOBAL COMPANY. The Global Company represents and warrants that
as of the Closing Date the New MidCap Fund, New International Fund and New Small
Cap Fund will have only nominal assets and outstanding shares, solely for the
purpose of voting on matters related to the reorganization contemplated by the
Plan.
3.10 CAPITAL COMPANY FINANCIAL STATEMENTS. MidCap Fund, International
Fund and Small Cap Fund each represents and warrants that its Statement of
Assets and Liabilities of ______, 2000 provided to the Global Company has been
prepared in accordance with generally accepted accounting principles
consistently applied, and fairly reflects its financial condition as of such
date, and there are no known contingent liabilities of such party as of such
date not disclosed therein.
3.11 NO ADVERSE CHANGES IN CAPITAL COMPANY. MidCap Fund, International
Fund and Small Cap Fund each represents and warrants that since ______, 2000,
there has not been any material adverse change in its financial condition,
assets, liabilities or business other than changes occurring in the ordinary
course of business except as otherwise disclosed in writing to and accepted by
the Global Company (for the purposes of this paragraph, a decline in net asset
value per share of a party shall not constitute a material adverse change).
3.12 PROXY STATEMENT. Each party represents and warrants that the
Combined Proxy Statement and Prospectus contained in the Registration Statement
on Form N-14 to be used in connection with the transaction contemplated hereby
(only insofar as it relates to such party) will, on its effective date and on
the Closing Date, not contain any untrue statement of 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.
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ARTICLE 4
COVENANTS
4.1 CONDUCT OF BUSINESS. During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Closing Date, each party shall operate its business in the ordinary
course except as contemplated by this Agreement.
4.2 SHAREHOLDERS MEETING. Each of MidCap Fund, International Fund and
Small Cap Fund shall call a special meeting of its shareholders as soon as
possible for the purpose of considering the reorganization contemplated by this
Agreement.
4.3 PREPARATION OF COMBINED PROSPECTUS AND PROXY STATEMENT. As soon as
reasonably practicable after the execution of this Agreement, the Global Company
shall prepare and file with the United States Securities and Exchange Commission
in form and substance satisfactory to both parties, (a) an amendment to the Form
N-1A registration statement of the Global Company with respect to New MidCap
Fund, New International Fund and New Small Cap Fund, and (b) a combined
prospectus and proxy statement on Form N-14 with respect to the reorganization
and shall use its best efforts to provide that the combined prospectus and proxy
statement can be distributed to the shareholders of MidCap Fund, International
Fund and Small Cap Fund as promptly thereafter as practicable. As soon as
reasonably practicable, the parties shall also prepare and file any other
related filings required under applicable state securities laws.
4.4 FEES AND EXPENSES. Whether or not this Agreement is consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by Dresdner RCM Global
Investors, LLC.
4.5 PROVISION OF DOCUMENTS. Each party agrees that it will, from time
to time as and when reasonably requested by the other party, execute and file
Articles of Transfer with respect to the transactions contemplated in this
Agreement with the Maryland State Department of Assessments and Taxation,
provide or cause to be provided to the other party such information, execute and
deliver or cause to be executed and delivered to the other party such documents,
and take or cause to be taken such further action, as the other party may deem
necessary in order to carry out the intent of this Agreement.
4.6 CAPITAL COMPANY LIABILITIES. The Capital Company will use its best
efforts to discharge all of its financial liabilities and obligations prior to
the Closing Date.
ARTICLE 5
TERMINATION, AMENDMENT AND WAIVER
5.1 TERMINATION. This Agreement may be terminated by resolution of the
Board of Directors of the Capital Company or the Board of Directors of the
Global Company at any time prior to the Closing Date, if
(a) either party shall have breached any material provision of
this Agreement; or
(b) circumstances develop that, in the opinion of such Board, make
proceeding with the Plan inadvisable; or
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(c) any governmental body shall have issued an order, decree or
ruling having the effect of permanently enjoining, restraining
or otherwise prohibiting the consummation of this Agreement.
5.2 EFFECT OF TERMINATION. In the event of any termination pursuant to
Section 5.1 (b) or (c), there shall be no liability for damage on the part of
either party to the other party.
5.3 AMENDMENT. This Agreement contains the entire agreement of the
parties with respect to the reorganization contemplated by the Plan and may be
amended prior to the Closing Date by the parties in writing at any time;
provided, however, that there shall not be any amendment that by law requires
approval by the shareholders of a party without obtaining such approval.
5.4 WAIVER. At any time prior to the Closing Date, any of the terms or
conditions of this Agreement may be waived by the Board of Directors of the
Capital Company or the Board of Directors of the Global Company, if, in its
judgment after consultation with legal counsel, such action or waiver will not
have a material adverse effect on the benefits intended under this Agreement to
the shareholders of MidCap Fund, International Fund or Small Cap Fund, or of New
MidCap Fund, New International Fund, or New Small Cap Fund, respectively.
ARTICLE 6
GENERAL PROVISIONS
6.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Maryland applicable to contracts made
and to be performed in such state.
6.2 ASSIGNMENT. This Agreement shall be binding upon 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 either party without the written consent of the other party. Nothing
herein expressed or implied is intended or shall be construed to confer upon or
give any person other than the parties hereto and their respective successors
and assigns any rights or remedies under or by reason of this Agreement.
6.3 NOTICES. Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be in writing and shall be
given by prepaid telegraph, telecopy or certified mail addressed to the Capital
Company at Four Embarcadero Center, San Francisco, California 94111, Attention:
President, or the Global Company at Four Embarcadero Center, San Francisco,
California 94111, Attention: President.
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IN WITNESS WHEREOF, each party has caused this Agreement to be
executed and attested on its behalf by its duly authorized representatives as of
the date first above written.
DRESDNER RCM CAPITAL FUNDS, INC., on
behalf of its Dresdner RCM MidCap Fund
series, Dresdner RCM International Growth
Equity Fund series, and Dresdner RCM
Small Cap Fund series
Attest: By:
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Anthony Ain
President
---------------------------
Secretary
DRESDNER RCM GLOBAL FUNDS, INC., on
behalf of its Dresdner RCM MidCap Fund
series, Dresdner RCM International Growth
Equity Fund series, and Dresdner RCM
Small Cap Fund series
Attest: By:
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Anthony Ain
President
--------------------------
Secretary
For good and valuable consideration, receipt of which is
hereby acknowledged, the undersigned hereby agrees to the provisions of Section
4.4 of this Agreement.
DRESDNER RCM GLOBAL INVESTORS LLC
By:
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