As filed with the Securities and Exchange Commission on January 10, 1997
File Nos.: 333-11799
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM N-14
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Post-Effective Amendment No. 1
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THE MONTGOMERY FUNDS
(Exact Name of Registrant as Specified in Charter)
1-800-572-3863
(Area Code and Telephone Number)
101 California Street
San Francisco, California 94111
(Address of Principal Executive Offices)
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Copy to:
JACK G. LEVIN JULIE ALLECTA, ESQ.
600 Montgomery Street DAVID A. HEARTH, ESQ.
San Francisco, California 94111 Heller, Ehrman, White & McAuliffe
(name and address of Agent for Service) 333 Bush Street
San Francisco, California 94104
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An indefinite amount of the Registrant's securities has been registered
under the Securities Act of 1933 pursuant to Rule 24f-2 under the Investment
Company Act of 1940. In reliance on such Rule, no filing fee is being paid at
this time.
Total number of pages ____. Exhibit Index appears at ____.
<PAGE>
CROSS REFERENCE SHEET
Form N-14 Part A, Item Location in Prospectus/Proxy Statement
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All Items Incorporation of Documents by Reference in Pre-
Effective Amendment No. 1 of The Montgomery
Funds, filed October 18, 1996, and
Pre-Effective Amendment No. 2 of The Montgomery
Funds, filed October 24, 1996 (SEC File No.
333-11799)
Form N-14 Part B, Item Location in Statement of Additional Information
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All Items Incorporation of Documents by Reference in Pre-
Effective Amendment No. 1 of The Montgomery
Funds, filed October 18, 1996, and
Pre-Effective Amendment No. 2 of The Montgomery
Funds, filed October 24, 1996 (SEC File No.
333-11799)
Form N-14 Part C
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Information required to be included in Part C is set forth under the appropriate
item, so numbered, in Part C of Form N-14.
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THE FOLLOWING ITEMS ARE HEREBY INCORPORATED BY REFERENCE:
From Post-Effective Amendment No. 35 of The Montgomery Funds, filed June 7,
1996 (SEC File No. 33-34841):
Prospectus for Montgomery Emerging Markets Fund (with other funds of
The Montgomery Funds), dated June 30, 1996.
Statementof Additional Information for Montgomery Emerging Markets
Fund and Montgomery Advisors Emerging Markets Fund (with other
funds of The Montgomery Funds), dated June 30, 1996.
From Post-Effective Amendment No. 28 of The Montgomery Funds, filed
September 13, 1995 (SEC File No. 33-34841):
Prospectus for Montgomery Advisors Emerging Markets Fund, dated
November 13, 1995.
From Post-Effective Amendment No. 1 of The Montgomery Funds, filed October 18,
1996 (SEC File No. 333-11799):
Combined Proxy Statement and Prospectus for the Montgomery Advisors
Emerging Markets Fund and the Montgomery Emerging Markets Fund, dated
October 31, 1996.
Statement of Additional Information dated October 31, 1996 for
Registration Statement on Form N-14.
As previously sent to shareholders of each fund and filed with the SEC pursuant
to Rule 30b2-1:
Annual Report for the Montgomery Emerging Markets Fund for the fiscal
year ended June 30, 1996, as contained in the Annual Report
for The Montgomery Funds dated as of and for the periods ended
June 30, 1996.
Annual Report for the Montgomery Advisors Emerging Markets Fund for
the period ended June 30, 1996.
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PART C
OTHER INFORMATION
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<PAGE>
THE MONTGOMERY FUNDS
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FORM N-14
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PART C
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Item 15. Indemnification
Article VII, Section 3 of the Agreement and Declaration of Trust
empowers the Trustees of the Trust, to the full extent permitted by law, to
purchase with Trust assets insurance for indemnification from liability and to
pay for all expenses reasonably incurred or paid or expected to be paid by a
Trustee or officer in connection with any claim, action, suit or proceeding in
which he or she becomes involved by virtue of his or her capacity or former
capacity with the Trust.
Article VI of the By-Laws of the Trust provides that the Trust shall
indemnify any person who was or is a party or is threatened to be made a party
to any proceeding by reason of the fact that such person is and other amounts or
was an agent of the Trust, against expenses, judgments, fines, settlement and
other amounts actually and reasonable incurred in connection with such
proceeding if that person acted in good faith and reasonably believed his or her
conduct to be in the best interests of the Trust. Indemnification will not be
provided in certain circumstances, however, including instances of willful
misfeasance, bad faith, gross negligence, and reckless disregard of the duties
involved in the conduct of the particular office involved.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to the Trustees, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable in the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a Trustee, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Trustee, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
Item 16 Exhibits
(1)(A) Agreement and Declaration of Trust is incorporated by
reference to the Registrant's Registration Statement
as filed with the Commission on May 16, 1990
("Registration Statement").
C-1
<PAGE>
(1)(B) Amendment to Agreement and Declaration of Trust is
incorporated by reference to Post-Effective Amendment
No. 17 to the Registration Statement as filed with
the Commission on December 30, 1993 ("Post-Effective
Amendment No. 17").
(1)(C) Amended and Restated Agreement and Declaration of
Trust is incorporated by reference to Post-Effective
Amendment No. 28 to the Registration Statement as
filed with the Commission on September 13, 1995
("Post-Effective Amendment No. 28").
(2) By-Laws are incorporated by reference to the
Registration Statement.
(3) Voting Trust Agreement - Not applicable.
(4) Form of Agreement and Plan of Reorganization is
included in Part A
(5) Specimen Share Certificate - Not applicable.
(6)(A) Form of Investment Management Agreement is
incorporated by reference to Pre-Effective Amendment
No. 1 to the Registration Statement as filed with the
Commission on July 5, 1990 ("Pre-Effective Amendment
No. 1").
(6)(B) Form of Amendment to Investment Management Agreement
is incorporated by reference to Post-Effective
Amendment No. 24 to the Registration Statement as
filed with the Commission on March 31, 1995 ("Post-
Effective Amendment No. 24").
(7)(A) Form of Underwriting Agreement is incorporated by
reference to Pre-Effective Amendment No. 1.
(7)(B) Form of Selling Group Agreement is incorporated by
reference to Pre-Effective Amendment No. 1.
(8) Benefit Plan(s) - Not applicable.
(9) Custody Agreement is incorporated by reference to
Post-Effective Amendment No. 24.
(10) Form of Shareholder Services Plan is incorporated by
reference to Post-Effective Amendment No. 28.
(11) Consent and Opinion of Counsel as to legality of
shares is incorporated by reference to Pre-Effective
Amendment No. 1.
(12) Opinion and Consent of Counsel as to Tax Matters is
filed herewith.
(13)(A) Form of Administrative Services Agreement is
incorporated by reference to Post-Effective Amendment
No. 15.
(13)(B) Form of Multiple Class Plan is incorporated by
reference to Post-Effective Amendment No. 28.
(14) Independent Auditors' Consent is incorporated by
reference to the Registrant's Registration Statement
filed with the Commission on September 11, 1996.
C-2
<PAGE>
(15) Not Applicable.
(16) Powers of Attorney are incorporated by reference to
the Registrant's Registration Statement filed with
the Commission on September 11, 1996.
Item 17. Undertakings.
(1) Registrant agrees that, prior to any public
reoffering of the securities registered through the
use of a prospectus which is part of this
registration statement by any person or party who is
deemed to be an underwriter within the meaning of
Rule 145(c) of the Securities Act of 1933, the
reoffering prospectus will contain the information
called for by the applicable registration form for
the reofferings by persons who may be deemed
underwriters, in addition to the information called
for by the other items of the applicable form.
(2) The undersigned registrant agrees that every
prospectus that is filed under paragraph (1) above
will be filed as part of an amendment to the
registration statement and will not be used until the
amendment is effective, and that, in determining any
liability under the Securities Act of 1933, each
post-effective amendment shall be deemed to be a new
registration statement for the securities offered
therein, and the offering of the securities at that
time shall be deemed to be the initial bona fide
offering of them.
(3) Registrant hereby undertakes to file a post-effective
amendment to this Registration Statement including a
signed tax opinion from Heller, Ehrman, White &
McAuliffe opining on the tax-free nature of the
reorganization.
C-3
<PAGE>
SIGNATURES
As required by the Securities Act of 1933, the Registrant has
duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San
Francisco and State of California, on the 8th day of January, 1997.
THE MONTGOMERY FUNDS
By: R. Stephen Doyle*
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R. Stephen Doyle
Chairman and Principal
Executive Officer
<TABLE>
As required by the Securities Act of 1933, this Amendment to Registrant's
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
R. Stephen Doyle* Principal Executive Officer; January 8, 1996
- ------------------------ Principal Financial and
R. Stephen Doyle Accounting Officer; and Trustee
Andrew Cox* Trustee January 8, 1996
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Andrew Cox
Cecilia H. Herbert* Trustee January 8, 1996
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Cecilia H. Herbert
John A. Farnsworth* Trustee January 8, 1996
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John A. Farnsworth
*By: /s/ Julie Allecta
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Julie Allecta, Attorney-in-Fact
pursuant to Power of Attorney
filed herewith.
</TABLE>
C-4
<PAGE>
Exhibit(s) Index
Exhibit No. Document Page No.
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(12) Opinion and Consent of Counsel ____
C-5
EXHIBIT #12
Opinion and Consent of Counsel
C-6
<PAGE>
HELLER EHRMAN WHITE & MCAULIFFE
ATTORNEYS
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
333 BUSH STREET ANCHORAGE
SAN FRANCISCO LOS ANGELES
CALIFORNIA 94104-2878 PALO ALTO
PORTLAND
FACSIMILE (415) 772-6268 SEATTLE
TELEPHONE (415) 772-6000 TACOMA
December 18, 1996
Montgomery Emerging Markets Fund
c/o The Montgomery Funds
101 California Street
San Francisco, California 94111
Montgomery Advisors Emerging Markets Fund
c/o The Montgomery Funds
101 California Street
San Francisco, California 94111
Ladies and Gentlemen:
You have requested our opinion as to certain United States federal
income tax consequences of the acquisition by Montgomery Emerging Markets Fund
(the "Acquiring Fund"), a portfolio of the Montgomery Funds (the "Trust"), a
Massachusetts business trust, of all of the assets and the assumption of certain
of the liabilities of Montgomery Advisors Emerging Markets Fund (the "Acquired
Fund"), a portfolio of the Trust, solely in exchange for voting shares of the
Acquiring Fund which shall thereafter be distributed to the shareholders of the
Acquired Fund and the assumption by the Acquiring Fund of certain liabilities of
the Acquired Fund pursuant to an Agreement and Plan of Reorganization dated as
of November 30, 1996 (the "Plan"). The transactions contemplated by the Plan are
referred to herein as the "Reorganization". At your request, we are rendering
our opinion concerning the material federal income tax consequences of the
Reorganization.
In rendering this opinion, we have examined and relied upon (i) the
Plan, (ii) the Registration Statement on Form N-14 (the "Registration
Statement") and the Combined Proxy Statement and Prospectus (the "Proxy
Statement/Prospectus") filed with the Securities and Exchange Commission on
September 11, 1996 (as amended by Pre-Effective Amendment No. 1 filed with the
Securities and Exchange Commission on October 18, 1996) in connection with the
Reorganization, (iii) certain representations concerning the Reorganization made
to us by the Trust for itself and on behalf of the Acquiring Fund and the
Acquired Fund in a certificate dated December 18, 1996, and (iv) such other
documents, financial and other reports and corporate minutes that we deemed
relevant or appropriate. We have assumed, without independent investigation or
review thereof, the accuracy and completeness of the facts and representations
and warranties contained in the above documents. Any capitalized term used and
not defined herein has the meaning given to it in the Proxy Statement/Prospectus
or the appendices thereto (including the Plan).
<PAGE>
Montgomery Emerging Markets Fund
Montgomery Advisors Emerging Markets Fund
December 18, 1996
Page 2
We have also assumed that the transactions contemplated by the
Plan will be consummated in accordance therewith and as described in the Proxy
Statement/Prospectus and that, as described in the Plan, prior to the Closing
Date, the Acquired Fund will dispose of and/or reinvest any investments which
would violate stated investment objectives or policies or certain percentage
limitations of the Acquiring Fund.
Based upon the foregoing and subject to the following, it is
our opinion that the Reorganization will constitute a reorganization within the
meaning of Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as amended
(the "Code"), that the Acquiring Fund and the Acquired Fund will each be a party
to that reorganization within the meaning of Section 368(b) of the Code, and
that, accordingly, the following will be the material federal income tax
consequences of the Reorganization:
(1) No gain or loss will be recognized by the Acquired Fund on the
transfer of its assets to the Acquiring Fund pursuant to the Plan solely in
exchange for Acquiring Fund shares and the assumption by the Acquiring Fund of
certain of the Acquired Fund's liabilities, or upon the distribution of the
Acquiring Fund Shares to shareholders of the Acquired Fund in exchange for their
shares of the Acquired Fund.
(2) No gain or loss will be recognized by the Acquiring Fund on the
receipt by the Acquiring Fund of the assets of the Acquired Fund pursuant to the
Plan solely in exchange for Acquiring Fund shares and the assumption by the
Acquiring Fund of certain of the Acquired Fund's liabilities.
(3) The basis to the Acquiring Fund of the assets of the Acquired Fund
received in the Reorganization will be the same as the basis of those assets in
the hands of the Acquired Fund immediately prior to the Reorganization.
(4) The holding period of the Acquiring Fund of the assets of the
Acquired Fund received in the Reorganization will include the period for which
such assets were held by the Acquired Fund.
(5) No gain or loss will be recognized by the shareholders of the
Acquired Fund on the exchange of their shares in the Acquired Fund solely for
shares of the Acquiring Fund pursuant to the terms of the Plan.
(6) The aggregate basis of the shares of the Acquiring Fund to be
received by a shareholder of the Acquired Fund pursuant to the Plan will be the
same as the aggregate basis of the shares of the Acquired Fund exchanged
therefor.
(7) The holding period for shares of the Acquiring Fund to be received
by a
<PAGE>
Montgomery Emerging Markets Fund
Montgomery Advisors Emerging Markets Fund
December 18, 1996
Page 3
shareholder of the Acquired Fund will include the period during which the
Acquired Fund shares exchanged therefor were held, provided such Acquired Fund
shares were a capital asset in the hands of the shareholder on the date of the
exchange.
This opinion may not be applicable to certain classes of
Acquired Fund shareholders, including securities dealers, foreign persons and
persons who acquired their own stock pursuant to the exercise of employee stock
options or rights or otherwise as compensation.
No opinion is expressed regarding the federal income tax
consequences to the Acquiring Fund, the Acquired Fund, or the shareholders of
the Acquired Fund in the event that money or property other than Acquiring Fund
shares is paid by the Acquiring Fund or is distributed by the Acquired Fund to
its shareholders in connection with this transaction. No opinion is expressed
regarding whether the payment by Montgomery Asset Management, L.P. of expenses
of the Reorganization will cause the Acquiring Fund to recognize gross income
under Section 61 of the Code or qualifying income under Section 851(b)(2) of the
Code.
This opinion is based upon existing provisions of the Code,
regulations, judicial decisions, and administrative rulings. Legislative changes
in the tax law, or changes in the judicial, regulatory and administrative
interpretation of the law (including changes having retroactive application)
could occur at any time which would modify the federal income tax consequences
described in this opinion. This opinion is expressly limited to the matters
discussed herein and does not address any state, local or foreign tax
consequences of the Reorganization or any federal income tax matters not
specifically mentioned.
No opinion is expressed as to any transaction other than the
Reorganization or to any transaction whatsoever including the Reorganization if
all the transactions described in such Plan have not been consummated in
accordance with the terms of such Plan and without waiver of any material
provision thereof or if all of the representations, warranties, statements and
assumptions upon which we have relied are not true and accurate at all relevant
times. If any such representation, warranty, statement or assumption is not
true, correct and complete in all material respects, our opinion could be
adversely affected and should not be relied upon.
This opinion only represents our best judgment as to the
federal income tax consequences of the Reorganization and is not binding on the
Internal Revenue Service or the courts. We disclaim any obligation to advise of
any developments in areas covered by this opinion that occur after the date of
this opinion.
<PAGE>
Montgomery Emerging Markets Fund
Montgomery Advisors Emerging Markets Fund
December 18, 1996
Page 4
The foregoing opinion is intended solely for the Acquiring
Fund, the Acquired Fund and the shareholders of the Acquired Fund and, without
our consent may not be disclosed to any other person. We consent to the use of
this opinion as an exhibit to the registration statement on Form N-14 filed with
the Securities and Exchange Commission in connection with the Reorganization.
Very truly yours,
/s/ Heller, Ehrman, White & McAuliffe
