RS Investment Trust
Item 77Q1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the Agreement) is
made as of July 31,2009, by and between RS Investment Trust, a
Massachusetts business trust (the Trust), on behalf of RS Large Cap
Alpha Fund (the Acquiring Fund), and on behalf of RS Large Cap Value
Fund (the "Acquired Fund"). The capitalized terms used herein shall
have the meanings ascribed to them in this Agreement.
This Agreement is intended to be, and is adopted as, a plan of
reorganization and liquidation for purposes of Section 368(a) of the
United States Internal Revenue Code of 1986, as amended (the Code).
The reorganization (the Reorganization) will consist of (i) the
transfer of all of the assets of the Acquired Fund to the Acquiring
Fund in exchange for Class A shares (the Class A Acquiring Fund
Shares), Class B shares (the Class B Acquiring Fund Shares), Class C
shares (the Class C Acquiring Fund Shares) and Class K shares (the
Class K Acquiring Fund Shares, and, together with the Class A
Acquiring Fund Shares, the Class B Acquiring Fund Shares, the Class C
Acquiring Fund Shares, and the Class K Acquiring Fund Shares, the
Acquiring Fund Shares) of beneficial interest, no par value per
share, of the Acquiring Fund; (ii) the assumption by the Acquiring
Fund of all of the liabilities of the Acquired Fund; and (iii) the
distribution, after the closing date contemplated by Section 3.1 (the
Closing Date), of the Acquiring Fund shares, pro rata to the
shareholders of the corresponding class of shares of the Acquired
Fund, and the termination, dissolution and complete liquidation of
the Acquired Fund as provided herein, all upon the terms and
conditions hereinafter set forth in this Agreement. Before the
Closing Date, the Acquired Fund will declare and pay to its
shareholders a dividend or dividends in an amount such that it will
have distributed (i) the sum of (a) its net investment income and (b)
the excess of its net short-term capital gains over net long-term
capital losses, and (ii) the excess of its net long-term capital
gains over its net short-term capital losses, all as described in
Section 6.6.
In consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and
agree as follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND IN EXCHANGE FOR THE
ACQUIRING FUND SHARES AND ASSUMPTION OF LIABILITIES AND
LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to the terms and conditions hereof and on the basis
of the representations and warranties contained herein:
(a) The Acquired Fund will sell, assign, convey, transfer and
deliver to the Acquiring Fund, and the Acquiring Fund will
acquire, on the Closing Date, all of the properties and
assets, subject to liabilities, of the Acquired Fund as
set forth in Section 1.2.
(b) The Acquiring Fund shall, on the Closing Date, (i) issue
and deliver to the Acquired Fund (1) the number of Class
A Acquiring Fund Shares (including fractional shares, if
any) determined by dividing (A) the amount of the assets
of the Acquired Fund attributable to its Class A shares,
less the amount of the liabilities of the Acquired Fund
attributable to its Class A shares, computed in the
manner and as of the time and date set forth in Section
2.2, by (B) the net asset value of one Class A Acquiring
Fund Share, computed in the manner and as of the time
and date set forth in Section 2.3, (2) the number of
Class B Acquiring Fund Shares (including fractional
shares, if any) determined by dividing (A) the amount of
the assets of the Acquired Fund attributable to its
Class B shares, less the amount of the liabilities of
the Acquired Fund attributable to its Class B shares,
computed in the manner and as of the time and date set
forth in Section 2.2, by (B) the net asset value of one
Class B Acquiring Fund Share, computed in the manner and
as of the time and date set forth in Section 2.3, (3) the
number of Class C Acquiring Fund Shares (including
fractional shares, if any) determined by dividing (A) the
amount of the assets of the Acquired Fund attributable to
its Class C shares, less the amount of the liabilities of
the Acquired Fund attributable to its Class C shares,
computed in the manner and as of the time and date set
forth in Section 2.2, by (B) the net asset value of one
Class C Acquiring Fund Share, computed in the manner and
as of the time and date set forth in Section 2.3, and
(4) the number of Class K Acquiring Fund Shares (including
fractional shares, if any) determined by dividing (A) the
amount of the assets of the Acquired Fund attributable to
its Class K shares, less the amount of the liabilities of
the Acquired Fund attributable to its Class K shares,
computed in the manner and as of the time and date set
forth in Section 2.2, by (B) the net asset value of one
Class K Acquiring Fund Share, computed in the manner and
as of the time and date set forth in Section 2.3, and
(ii) assume all of the Acquired Fund's liabilities and
obligations of any kind whatsoever, whether absolute,
accrued, contingent, or otherwise, in existence on the
Closing Date. Such transactions shall take place at the
closing provided for in Section 3 (the Closing).
(c) Upon consummation of the transactions described in
subsections (a) and (b) above, the Acquired Fund in
complete liquidation shall distribute to its respective
shareholders of record as of the Closing Date the
Acquiring Fund Shares received by it. Each Class A
shareholder of the Acquired Fund shall be entitled to
receive that number of Class A Acquiring Fund Shares
equal to the total of (i) the number of Class A shares
of the Acquired Fund held by such shareholder divided by
the number of Class A shares of the Acquired Fund
outstanding on such date multiplied by (ii) the total
number of Class A Acquiring Fund Shares received by the
Acquired Fund. Each Class B shareholder of the Acquired
Fund shall be entitled to receive that number of Class B
Acquiring Fund Shares equal to the total of (i) the
number of Class B shares of the Acquired Fund held by
such shareholder divided by the number of Class B shares
of the Acquired Fund outstanding on such date multiplied
by (ii) the total number of Class B Acquiring Fund Shares
received by the Acquired Fund. Each Class C shareholder
of the Acquired Fund shall be entitled to receive that
number of Class C Acquiring Fund Shares equal to the
total of (i) the number of Class C shares of the Acquired
Fund held by such shareholder divided by the number of
Class C shares of the Acquired Fund outstanding on such
date multiplied by (ii) the total number of Class C
Acquiring Fund Shares received by the Acquired Fund.
Each Class K shareholder of the Acquired Fund shall be
entitled to receive that number of Class K Acquiring Fund
Shares equal to the total of (i) the number of Class K
shares of the Acquired Fund held by such shareholder
divided by the number of Class K shares of the Acquired
Fund outstanding on such date multiplied by (ii) the
total number of Class K Acquiring Fund Shares received
by the Acquired Fund.
1.2. The assets of the Acquired Fund to be acquired by the
Acquiring Fund shall include, without limitation, all cash,
securities, commodities and futures interests, dividends and
interest receivable, receivables for shares sold and all
other properties and assets which are owned by the Acquired
Fund on the Closing Date.
1.3. As provided in Section 3.4, as soon after the Closing Date as
is conveniently practicable (the "Liquidation Date"), the
Acquired Fund will liquidate and distribute to its
shareholders of record the Acquiring Fund Shares received by
the Acquired Fund as contemplated by Section 1.1. Such
liquidation and distribution will be accomplished by the
transfer of the Acquiring Fund Shares then credited to the
account of the Acquired Fund on the books of the Acquiring
Fund to open accounts on the share records of the Acquiring
Fund in the names of Acquired Fund shareholders and
representing the respective number of the Acquiring Fund
Shares due to such shareholders. The Acquiring Fund shall
not be obligated to issue certificates representing the
Acquiring Fund Shares in connection with such exchange.
1.4. With respect to the Acquiring Fund Shares distributable
pursuant to Section 1.3 to an Acquired Fund shareholder
holding a certificate or certificates for shares of the
Acquired Fund, if any, on the Valuation Date (as defined in
Section 2.4 of this Agreement), the Acquiring Fund will not
permit such shareholder to receive Acquiring Fund Share
certificates therefor, exchange such Acquiring Fund Shares
for shares of other series of the Trust, effect an account
transfer of such Acquiring Fund Shares, or pledge or redeem
such Acquiring Fund Shares until the Acquiring Fund has been
notified by the Acquired Fund or its agent that such
Acquired Fund shareholder has surrendered all his or her
outstanding certificates for Acquired Fund Shares or, in the
event of lost certificates, posted adequate bond.
1.5. As soon as practicable after the Closing Date, the Acquired
Fund shall make all filings and take all other steps as
shall be necessary and proper to effect its complete
liquidation. Any reporting responsibility of the Acquired
Fund is and shall remain the responsibility of the Acquired
Fund up to and including the Closing Date and thereafter.
1.6. Any and all obligations or liabilities arising under or in
respect of this Agreement shall be those of the Acquired
Fund or the Acquiring Fund, as the case may be, and shall
not otherwise be obligations or liabilities of the Trust,
and, for clarity, under no circumstances will any other
series of the Trust have any obligation or liability under
or in respect of this Agreement or the transactions
contemplated hereby.
2. VALUATION AND VALUATION DATE
2.1. On the Closing Date, the Acquiring Fund will deliver to the
Acquired Fund a number of Class A, Class B, Class C, and
Class K Acquiring Fund Shares (including fractional shares,
if any) determined as provided in Section 1.
2.2. The value of the Acquired Fund's net assets will be computed
as of the Valuation Date (as defined in Section 2.4 of this
Agreement) using the valuation procedures for the Acquiring
Fund set forth in the Trust's Amended and Restated Agreement
and Declaration of Trust, as amended (the Declaration of
Trust) and the Acquiring Fund's then current prospectus or
prospectuses and statement of additional information or
statements of additional information (collectively, as
amended or supplemented from time to time, the "Acquiring
Fund Prospectus").
2.3. The net asset value of a Class A, Class B, Class C, or Class
K Acquiring Fund Share shall be the net asset value per Class
A share, Class B, Class C, or Class K share, as the case may
be, of the Acquiring Fund computed as of the Valuation Date
using the valuation procedures for the Acquiring Fund set
forth in the Declaration of Trust and the Acquiring Fund
Prospectus.
2.4. The Valuation Date shall be 4:00 p.m. Eastern time, and after
the declaration of any dividends by the Acquired Fund, on the
business day immediately preceding the Closing Date, or such
earlier date as may be mutually agreed upon in writing by the
parties hereto (the "Valuation Date").
2.5. The Acquiring Fund shall issue the Acquiring Fund Shares to
the Acquired Fund on one or more share deposit receipts
registered in the name of the Acquired Fund. The Acquired
Fund shall distribute in liquidation the Acquiring Fund
Shares received by it hereunder to its shareholders as
contemplated by Section 1.1, by redelivering such share
deposit receipts by Section 1.1, by redelivering such share
deposit receipts to to the Trust's transfer agent which will
as soon as practicable set up open accounts for Acquired Fund
shareholders in accordance with written instructions
furnished by the Acquired Fund. Immediately after the close
of business on the Valuation Date, the share transfer books
of the Acquired Fund will be closed and no further transfers
of Acquired Fund shares will be made.
2.6. The Acquired Fund will pay or cause to be paid to the
Acquiring Fund any interest, cash or such dividends, rights
and other payments received by it on or after the Closing
Date with respect to the Investments (as defined in Section
4.1 of this Agreement) and other properties and assets of
the Acquired Fund, whether accrued or contingent, received by
it on or after the Closing Date. Any such distribution shall
be deemed included in the assets transferred to the Acquiring
Fund at the Closing Date and shall not be separately valued
unless the securities in respect of which such distribution
is made shall have gone "ex" such distribution prior to the
Valuation Date, in which case any such distribution which
remains unpaid at the Closing Date shall be included in the
determination of the value of the assets of the Acquired Fund
acquired by the Acquiring Fund.
2.7. All computations of value shall be made by the pricing agent
for the Acquiring Fund, in accordance with its regular
practice in pricing the shares and assets of the Acquiring
Fund using the valuation procedures set forth in the
Declaration of Trust and the Acquiring Fund Prospectus.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be August 3, 2009, or at such other
date to which the parties may agree. The Closing shall be
held at the offices of Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx
Xxxxx, Xxxxxx, XX 00000, at 9:00 a.m. Eastern Time or at such
other time and/or place as the parties may agree.
3.2. The portfolio securities of the Acquired Fund shall be made
available by the Acquired Fund to the custodian for the
Acquiring Fund (the "Custodian"), for examination no later
than five business days preceding the Valuation Date. On the
Closing Date, such portfolio securities and all the Acquired
Fund's cash shall be delivered by the Acquired Fund to the
Custodian for the account of the Acquiring Fund, such
portfolio securities to be duly endorsed in proper form for
transfer in such manner and condition as to constitute good
delivery thereof in accordance with the custom of brokers or,
in the case of portfolio securities held in the U.S. Treasury
Department's book-entry system or by the Depository Trust
Company, Participants Trust Company or other third party
depositories, by transfer to the account of the Custodian in
accordance with Rule 17f-4, Rule 17f-5 or Rule 17f-7, as the
case may be, under the Investment Company Act of 1940, as
amended (the "1940 Act"), and accompanied by all necessary
federal and state stock transfer stamps or a check for the
appropriate purchase price thereof. The cash delivered shall
be in the form of currency or certified or official bank
checks, payable to the order of the custodian for the
Acquiring Fund.
3.3. In the event that on the Valuation Date (a) the New York
Stock Exchange shall be closed to trading or trading thereon
shall be restricted, or (b) trading or the reporting of
trading on said Exchange or elsewhere shall be disrupted so
that accurate appraisal of the value of the net assets of
the Acquired Fund or the Acquiring Fund 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; provided that if
trading shall not be fully resumed and reporting restored
within three business days after the Valuation Date, this
Agreement may be terminated by the Acquiring Fund or the
Acquired Fund upon the giving of written notice to the other
party.
3.4. At the Closing, the Acquired Fund or its transfer agent
shall deliver to the Acquiring Fund or its designated
agent a list of the names and addresses of the Acquired
Fund shareholders and the number of outstanding shares
of the Acquired Fund owned by each Acquired Fund
shareholder, all as of the close of business on the
Valuation Date, certified by any Vice President,
Secretary or Assistant Secretary of the Trust, on behalf
of the Acquired Fund. The Acquiring Fund will provide
to the Acquired Fund evidence reasonably satisfactory
to the Acquired Fund that the Acquiring Fund Shares
issuable pursuant to Section 1.1 have been credited to
the Acquired Fund's account on the books of the
Acquiring Fund. On the Liquidation Date, the Acquiring
Fund will provide to the Acquired Fund evidence
reasonably satisfactory to the Acquired Fund that such
Acquiring Fund Shares have been credited pro rata within
each class of shares to open accounts in the names of
Acquired Fund shareholders as provided in Section 1.3.
3.5. At the Closing, each party shall deliver to the other such
bills of sale, instruments of assumption of liabilities,
checks, assignments, stock certificates, receipts or other
documents as such other party or its counsel may reasonably
request in connection with the transfer of assets, assumption
of liabilities and liquidation contemplated by Section 1.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of the Trust, on behalf of the
Acquired Fund.
The Trust, on behalf of the Acquired Fund, represents and
warrants the following to the Acquiring Fund as of the date
hereof and agrees to confirm the continuing accuracy and
completeness in all material respects of the following on
the Closing Date:
(a) The Trust is a business trust duly organized and validly
existing under the laws of The Commonwealth of
Massachusetts and has power to own all of its properties
and assets and to carry out its obligations under this
Agreement. The Trust is not required to qualify as a
foreign entity in any jurisdiction where it is not so
qualified and the failure to so qualify would have a
material adverse effect on the Acquired Fund. The
Acquired Fund has all necessary federal, state and local
authorizations to carry on its business as now being
conducted.
(b) The Trust is duly registered under the 1940 Act, as a
management company of the open-end type, and such
registration has not been revoked or rescinded and is
in full force and effect, and the Acquired Fund is a
separate series thereof duly designated in accordance
with the applicable provisions of the Declaration of
Trust of the Trust and the 1940 Act.
(c) The Acquired Fund is not in violation in any material
respect of any provisions of the Declaration of Trust or
the Trust's Bylaws (the "Bylaws") or any agreement,
indenture, instrument, contract, lease or other
undertaking to which the Acquired Fund is a party or by
which the Acquired Fund or its assets are bound, and
the execution, delivery and performance of this
Agreement will not result in any such violation.
(d) The Acquired Fund's current prospectus and statement of
additional information (collectively, as amended or
supplemented from time to time, the "Acquired Fund
Prospectus") conform in all material respects to the
applicable requirements of the Securities Act of 1933,
as amended (the "1933 Act"), and the 1940 Act and the .
rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder and do not
include any untrue statement of a material fact or omit
to state any material fact relating to the Acquired Fund
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading.
(e) At the Closing Date, the Acquired Fund will have good
and marketable title to the Acquired Fund's assets to
be transferred to the Acquiring Fund pursuant to
Section 1.2.
(f) Except as otherwise disclosed to the Acquiring Fund, no
material litigation, administrative or other proceedings
or investigation is presently pending or, to the
knowledge of the Acquired Fund, threatened as to the
Acquired Fund or any of its properties or assets or any
person whom the Acquired Fund may be obligated to
directly or indirectly indemnify in connection with such
litigation, proceedings or investigation. Neither the
Trust nor the Acquired Fund knows of any facts which
might form the basis for the institution of such
proceedings and the Acquired Fund is not a party to or
subject to the provisions of any order, decree or
judgment of any court or governmental body, which
materially and adversely affects its business or its
ability to consummate the transactions contemplated
hereby.
(g) The statement of assets and liabilities, statement of
operations, statement of changes in net assets and
schedule of portfolio investments (indicating their
market values) of the Acquired Fund at, as of, and
for the fiscal year ended December 31, 2008, audited
by PricewaterhouseCoopers LLP, independent registered
public accounting firm to the Acquired Fund, copies
of which have been furnished to the Acquiring Fund,
fairly reflect the financial condition, results of
operations, and changes in net assets of the Acquired
Fund as of such date and for the period then ended in
accordance with accounting principles generally
accepted in the United States consistently applied,
and the Acquired Fund has no known liabilities of a
material amount, contingent or otherwise, other than
those shown on the statements of assets and
liabilities referred to above, or those incurred in
the ordinary course of its business since December
31, 2008.
(h) Since December 31, 2008, there has not been any
material adverse change in the Acquired Fund's
financial condition, assets, liabilities or business
(other than changes occurring in the ordinary course
of business), or any incurrence by the Acquired
Fund of indebtedness (other than in the ordinary
course of business). For purposes of this
subparagraph (h), changes in portfolio securities,
changes in the market value of portfolio securities
or net redemptions shall be deemed to be in the
ordinary course of business.
(i) As of the Closing Date: (i) all federal and other
tax returns and reports of the Acquired Fund
required by law to have been filed by such date
(giving effect to extensions) shall have been
timely filed and true, correct and complete in all
material respects as of the time of their filing;
(ii) all taxes (if any) of the Acquired Fund which
are due and payable on such returns or reports or
on any assessments received by Acquired Fund shall
have been timely paid or the timely payment thereof
shall have been provided for; (iii) the Acquired
Fund is not liable for taxes of any person other than
itself and is not a party to any tax sharing or
allocation agreement; (iv) all of the Acquired
Fund's tax liabilities will have been adequately
provided for on its books; and (v) to the best of
the Trust's or the Acquired Fund's knowledge, the
Acquired Fund has not had any tax deficiency or
liability asserted against it or question with
respect thereto raised, and it is not under audit by
the Internal Revenue Service or by any state or
local tax authority for taxes in excess of those
already paid.
(j) For each taxable year of its operation (including
for the taxable year ending on the Closing Date),
the Acquired Fund has met, and will continue to meet
at all times through the Closing Date, the
requirements of Subchapter M of the Code for
qualification and treatment as a "regulated
investment company," has elected to be treated as
such, and has computed or will compute, as
applicable, its U.S. federal income tax under
Section 852 of the Code.
(k) The Acquired Fund has not received written
notification from any tax authority that asserts a
position contrary to any of the representations in
paragraphs (i) or (j) of this Section 4.1.
(l) The authorized capital of the Trust consists of an
unlimited number of shares of beneficial interest,
no par value, of such number of different series as
the Board of Trustees of the Trust may authorize
from time to time. The outstanding shares of
beneficial interest of the Acquired Fund as of the
Closing Date are divided into Class A shares, Class
B shares, Class C shares, and Class K shares, each
having the characteristics described in the
Acquired Fund Prospectus and will, at the time of
the Closing Date, be held by the persons and in the
amounts set forth in the records of the transfer
agent as provided in Section 3.4. All issued and
outstanding shares of the Acquired Fund are, and at
the Closing Date will be, duly and validly issued
and outstanding, fully paid and non-assessable by
the Acquired Fund (except as set forth in the
Acquired Fund Prospectus), and will have been
issued in compliance with all applicable
registration or qualification requirements of
federal and state securities laws. No options,
warrants or other rights to subscribe for or
purchase, or securities convertible into, any shares
of the Acquired Fund are outstanding.
(m) The Acquired Fund's investment operations from
inception to the date hereof have been in
compliance in all material respects with the
investment policies and investment restrictions set
forth in the Acquired Fund Prospectus, except as
previously disclosed in writing to the Acquiring
Fund.
(n) The execution, delivery and performance of this
Agreement have been duly authorized by the Board of
Trustees of the Trust and by all other necessary
trust action on the part of the Trust and the
Acquired Fund, and this Agreement constitutes the
valid and binding obligation of the Acquired Fund
enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforcement of creditors' rights generally and other
equitable principles.
(o) The Acquiring Fund Shares to be issued to the
Acquired Fund pursuant to the terms of this
Agreement will not be acquired for the purpose of
making any distribution thereof other than to
Acquired Fund shareholders as provided in Section
1.1(c).
(p) The information relating to the Acquired Fund
furnished by the Trust and the Acquired Fund for
use in no-action letters, applications for orders,
and other documents that may be necessary in
connection with the transactions contemplated hereby
is and will be accurate and complete in all material
respects and complies in all material respects with
federal securities laws and regulations thereunder
applicable thereto.
(q) There are no material contracts outstanding to which
the Acquired Fund is a party, other than as disclosed
in the Acquired Fund Prospectus or in the registration
statement of the Trust, as amended, filed with the
Commission under the 1933 Act and the 1940 Act (the
"Registration Statement").
(r) No consent, approval, authorization or order of any
court or governmental authority is required for the
consummation by the Acquired Fund of the transactions
contemplated by this Agreement, except such as may be
required under the 1933 Act, the Securities Exchange
Act of 1934 Act (the "1934 Act"), the 1940 Act, state
securities or blue sky laws (which term as used herein
shall include the laws of the District of Columbia and
of Puerto Rico).
(s) As of both the Valuation Date and the Closing Date,
the Acquired Fund will have full right, power and
authority to sell, assign, transfer and deliver the
Investments (as defined below) and any other assets
and liabilities of the Acquired Fund to be transferred
to the Acquiring Fund pursuant to this Agreement. At
the Closing Date, subject only to the delivery of the
Investments and any such other assets and liabilities
as contemplated by this Agreement, the Acquiring Fund
will acquire the Investments and any such other assets
subject to no encumbrances, liens or security interests
in favor of any third party creditor of the Acquired
Fund, and without any restrictions upon the transfer
thereof, including such restrictions as might arise
under the 1933 Act. As used in this Agreement, the
term "Investments" shall mean the Acquired Fund's
investments shown on the schedule of its portfolio
investments as of December 31, 2008 referred to in
Section 4.1(g) hereof, as supplemented with such
changes as the Acquired Fund shall make after December
31, 2008, which changes shall be disclosed to the
Acquiring Fund in an updated schedule of investments,
and changes resulting from stock dividends, stock
split-ups, mergers and similar corporate actions
through the Closing Date.
(t) The books and records of the Acquired Fund made
available to the Acquiring Fund and/or its counsel are
substantially true and correct and contain no material
misstatements or omissions with respect to the
operations of the Acquired Fund.
(u) To the best of the Trust's and the Acquired Fund's
knowledge, all of the issued and outstanding shares of
the Acquired Fund shall have been offered for sale and
sold in conformity with all applicable federal and
state securities laws (including any applicable
exemptions therefrom), or the Acquired Fund has taken
any action necessary to remedy any prior failure to
have offered for sale and sold such shares in
conformity with such laws.
4.2. Representations and Warranties of the Trust, on behalf of
the Acquiring Fund.
The Trust, on behalf of the Acquiring Fund, represents and
warrants the following to the Acquired Fund as of the date
hereof and agrees to confirm the continuing accuracy and
completeness in all material respects of the following on the
Closing Date:
(a) The Trust is a business trust duly organized and
validly existing under the laws of The Commonwealth of
Massachusetts and has power to own all of its
properties and assets and to carry out its obligations
under this Agreement. The Trust is not required to
qualify as a foreign entity in any jurisdiction where
it is not so qualified and the failure to so qualify
would have a material adverse effect on the Acquiring
Fund. The Acquiring Fund has all necessary federal,
state and local authorizations to carry on its business
as now being conducted.
(b) The Trust is duly registered under the 1940 Act, as a
management company of the open-end type, and such
registration has not been revoked or rescinded and is
in full force and effect, and the Acquiring Fund is a
separate series thereof duly designated in accordance
with the applicable provisions of the Declaration of
Trust of the Trust and the 1940 Act.
(c) The Acquiring Fund is not in violation in any material
respect of any provisions of the Declaration of Trust
or Bylaws or any agreement, indenture, instrument,
contract, lease or other undertaking to which the
Acquiring Fund is a party or by which the Acquiring
Fund or its assets are bound, and the execution,
delivery and performance of this Agreement will not
result in any such violation.
(d) The Acquiring Fund Prospectus conforms in all material
respects to the applicable requirements of the 1933
Act and the 1940 Act and the rules and regulations of
the Commission thereunder and does not and will not
include any untrue statement of a material fact or
omit to state any material fact relating to the
Acquiring Fund required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(e) Except as otherwise disclosed to the Acquired Fund,
no material litigation, administrative or other
proceedings or investigation is presently pending or,
to the knowledge of the Acquiring Fund, threatened as
to the Acquiring Fund or any of its properties or
assets or any person whom the Acquiring Fund may be
obligated to directly or indirectly indemnify in
connection with such litigation, proceedings or
investigation. Neither the Trust nor the Acquiring
Fund knows of any facts which might form the basis
for the institution of such proceedings and the
Acquiring Fund is not a party to or subject to the
provisions of any order, decree or judgment of any
court or governmental body, which materially and
adversely affects its business or its ability to
consummate the transactions contemplated hereby.
(f) The statement of assets and liabilities, statement
of operations, statement of changes in net assets, and
schedule of portfolio investments (indicating their
market values) of the Acquiring Fund at, as of and for
the fiscal year ended December 31, 2008, audited by
PricewaterhouseCoopers LLP, independent registered
public accounting firm to the Acquiring Fund, copies
of which have been furnished to the Acquired Fund,
fairly reflect the financial condition, results of
operations, and changes in net assets of the Acquiring
Fund as of such date and for the period then ended in
accordance with generally accepted accounting
principles consistently applied, and the Acquiring
Fund has no known liabilities of a material amount,
contingent or otherwise, other than those shown on the
statements of assets referred to above or those
incurred in the ordinary course of its business since
December 31, 2008.
(g) Since December 31, 2008, there has not been any
material adverse change in the Acquiring Fund's
financial condition, assets, liabilities or business
(other than changes occurring in the ordinary course of
business), or any incurrence by the Acquiring Fund of
indebtedness (other than in the ordinary course of
business). For purposes of this subparagraph (g),
changes in portfolio securities, changes in the market
value of portfolio securities or net redemptions shall
be deemed to be in the ordinary course of business.
(h) As of the Closing Date: (i) all federal and other tax
returns and reports of the Acquiring Fund required by
law to have been filed by such date (giving effect to
extensions) shall have been timely filed and true,
correct and complete in all material respects as of the
time of their filing; (ii) all taxes (if any) of the
Acquiring Fund which are due and payable on such returns
or reports or on any assessments received by Acquiring
Fund shall have been timely paid or the timely payment
thereof shall have been provided for; (iii) the
Acquiring Fund is not liable for taxes of any person
other than itself and is not a party to any tax sharing
or allocation agreement; (iv) all of the Acquiring
Fund's tax liabilities will have been adequately
provided for on its books; and (v) to the best of the
Trust's or the Acquiring Fund's knowledge, the
Acquiring Fund has not had any tax deficiency or
liability asserted against it or question with respect
thereto raised, and it is not under audit by the
Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
(i) For each taxable year of its operation (including for
the current taxable year ending on December 31, 2009),
the Acquiring Fund has met, and will continue to meet
at all times through the Closing Date, the requirements
of Subchapter M of the Code for qualification and
treatment as a "regulated investment company," has
elected to be treated as such, and has computed or will
compute, as applicable, its U.S. federal income tax
under Section 852 of the Code.
(j) The Acquired Fund has not received written notification
from any tax authority that asserts a position contrary
to any of the representations in paragraphs (h) or (i)
of this Section 4.2.
(k) The authorized capital of the Trust consists of an
unlimited number of shares of beneficial interest, no
par value, of such number of different series as the
Board of Trustees of the Trust may authorize from time
to time. The outstanding shares of beneficial interest
in the Acquiring Fund as of the Closing Date will be
divided into Class A shares, Class B shares, Class C
shares, and Class K shares, each having the
characteristics described in the Acquiring Fund
Prospectus. All issued and outstanding shares of the
Acquiring Fund, including the Acquiring Fund Shares
issued hereunder, are, and at the Closing Date will be,
duly and validly issued and outstanding, fully paid and
non-assessable (except as set forth in the Acquiring
Fund Prospectus) by the Acquiring Fund, and will have
been issued in compliance with all applicable
registration or qualification requirements of federal
and state securities laws. No options, warrants or
other rights to subscribe for or purchase, or
securities convertible into, any shares of the
Acquiring Fund are outstanding.
(l) The execution, delivery and performance of this
Agreement have been duly authorized by the Board of
Trustees of the Trust and by all other necessary trust
action on the part of the Trust and the Acquiring Fund,
and constitute the valid and binding obligation of the
Acquiring Fund enforceable in accordance with its terms,
except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights
generally and other equitable principles.
(m) The information furnished by the Acquiring Fund for use
in no-action letters, applications for orders, and other
documents that may be necessary in connection with the
transactions contemplated hereby is and will be accurate
and complete in all material respects and complies in
all material respects with federal securities laws and
regulations thereunder applicable thereto.
(n) There are no material contracts outstanding to which the
Acquiring Fund is a party, other than as disclosed in
the Acquiring Fund Prospectus or in the Registration
Statement.
(o) The books and records of the Acquiring Fund made
available to the Acquired Fund and/or its counsel are
substantially true and correct and contain no material
misstatements or omissions with respect to the operations
of the Acquiring Fund.
(p) No consent, approval, authorization or order of any
court or governmental authority is required for the
consummation by the Acquiring Fund of the transactions
contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1934 Act, the 1940 Act,
state securities or blue sky laws.
5. COVENANTS OF THE PARTIES.
5.1. Each of the Acquired Fund and the Acquiring Fund will operate
its business in the ordinary course between the date hereof
and the Closing Date, it being understood that such ordinary
course of business will include purchases and sales of
portfolio securities, sales and redemptions of fund shares,
and regular and customary periodic dividends and
distributions.
5.2. As promptly as practicable, but in any case within sixty
days after the Closing Date, the Acquired Fund shall
furnish the Acquiring Fund, in such form as is reasonably
satisfactory to the Acquiring Fund, a statement of the
earnings and profits and capital loss carryovers of the
Acquired Fund for federal income tax purposes that will
be carried over by the Acquiring Fund as a result of
Section 381 of the Code, and which will be reviewed by
PricewaterhouseCoopers LLP and certified by the Trust's
President and Treasurer.
5.3. The Acquiring Fund will use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act,
the 1940 Act and such of the state securities or blue sky
laws as it may deem appropriate in order to continue its
operations after the Closing Date.
5.4. The Acquired Fund agrees that the liquidation of the
Acquired Fund will be effected in the manner provided in
the Declaration of Trust and Bylaws in accordance with
applicable law, and that on and after the Closing Date, the
Acquired Fund shall not conduct any business except in
connection with its liquidation.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND.
The obligations of the Acquiring Fund to complete the
transactions provided for herein shall be subject, at its
election, to the performance by the Acquired Fund of all the
obligations to be performed by it hereunder on or before the
Closing Date and, in addition thereto, to the following further
conditions:
6.1. The Acquired Fund shall have delivered to the Acquiring
Fund a certificate executed on its behalf by the Trust's
President or any Vice President and its Treasurer or
Assistant Treasurer, in form and substance reasonably
satisfactory to the Acquiring Fund and dated as of the
Closing Date, to the effect that the representations and
warranties of the Acquired Fund made in this Agreement
are true and correct at and as of the Closing Date,
except as they may be affected by the transactions
contemplated by this Agreement, and that the Acquired
Fund has complied with all the covenants and agreements
and satisfied all of the conditions on their parts to be
performed or satisfied under this Agreement at or prior
to the Closing Date.
6.2. The Acquired Fund shall have furnished to the Acquiring
Fund a statement of the Acquired Fund's assets and
liabilities, with values determined as provided in
Section 2 of this Agreement, together with a list of
Investments with their respective tax costs, all as of
the Valuation Date, certified on the Acquired Fund's
behalf by the Trust's President (or any Vice President)
and Treasurer, and a certificate of both such officers,
dated the Closing Date, to the effect that as of the
Valuation Date and as of the Closing Date there has
been no material adverse change in the financial
position of the Acquired Fund since December 31, 2008.
6.3. The assets of the Acquired Fund to be acquired by the
Acquiring Fund will include no assets which the
Acquiring Fund, by reason of limitations contained in
the Declaration of Trust or of investment restrictions
disclosed in the Acquiring Fund Prospectus in effect
on the Closing Date, may not properly acquire, and as
of the Closing Date, the Acquired Fund will have sold
such of its assets, if any, as are necessary to ensure
that, after giving effect to the acquisition of the
assets of the Acquired Fund pursuant to this agreement,
the Acquiring Fund will remain a "diversified company"
within the meaning of Section 5(b)(1) of the 1940 Act.
6.4. All proceedings taken by the Acquired Fund in
connection with the transactions contemplated by this
Agreement and all material documents related thereto
shall be reasonably satisfactory in form and substance
to the Acquiring Fund.
6.5. The Acquired Fund shall have furnished to the Acquiring
Fund a certificate, signed on its behalf by the
President or any Vice President and the Treasurer or
any Assistant Treasurer of the Trust, as to the
adjusted tax basis in the hands of the Acquired Fund
of the securities delivered to the Acquiring Fund
pursuant to this Agreement, together with any such
other evidence as to such adjusted tax basis as the
Acquiring Fund may reasonably request.
6.6. The Trust, on behalf of the Acquired Fund, prior to the
Closing Date, has declared a dividend or dividends which,
together with all previous such dividends, shall have
the effect of distributing to the Acquired Fund
shareholders (i) all of the Acquired Fund's investment
company taxable income as defined in Section 852 of the
Code, and (ii) all of the excess, if any, of (x) the
Acquired Fund's investment income excludable from gross
income under Section 103 of the Code over (y) the
Acquired Fund's deductions disallowed under Sections 265
and 171 of the Code (in each case computed without
regard to any deduction for dividends paid), as well as
(iii) all of the Acquired Fund's net capital gain
realized (after reduction by any capital loss carryover),
in each case for both the current taxable year (that will
end on the Closing Date) and, if necessary to meet the
distribution requirements for treatment as a regulated
investment company under Subchapter M of the Code, and/or
to eliminate any U.S. federal income tax liability of
Acquired Fund, for the immediately preceding taxable year,
the immediately preceding taxable year.
6.7. The Acquired Fund's custodian shall have delivered to the
Acquiring Fund a certificate identifying all of the assets
of the Acquired Fund held by such custodian as of the
Valuation Date.
6.8. The Acquired Fund's transfer agent shall have provided to
the Acquiring Fund's transfer agent (i) the originals or
true copies of all of the records of the Acquired Fund in
the possession of the Acquired Fund's transfer agent as
of the Closing Date, (ii) a record specifying the number
of Acquired Fund Shares outstanding as of the Valuation
Date and (iii) a record specifying the name and address
of each holder of record of any Acquired Fund Shares and
the number of Acquired Fund Shares held of record by each
such shareholder as of the Valuation Date. The Acquired
Fund's transfer agent shall also have provided the
Acquiring Fund with a certificate confirming that the
acts specified in the preceding sentence have been taken
and that the information so supplied is complete and
accurate to the best knowledge of the transfer agent.
6.9. All of the issued and outstanding shares of the Acquired
Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue
sky laws (including any applicable exemptions therefrom)
and, to the extent that any audit of the records of the
Acquired Fund or its transfer agent by the Acquiring Fund
or its agents shall have revealed otherwise, either (i)
the Acquired Fund shall have taken all actions that in
the opinion of the Acquiring Fund or its counsel are
necessary to remedy any prior failure on the part of the
Acquired Fund to have offered for sale and sold such
shares in conformity with such laws or (ii) the Acquired
Fund shall have furnished (or caused to be furnished)
surety, or deposited (or caused to be deposited) assets
in escrow, for the benefit of the Acquiring Fund in
amounts sufficient and upon terms satisfactory, in the
opinion of the Acquiring Fund or its counsel to indemnify
the Acquiring Fund against any expense, loss, claim,
damage or liability whatsoever that may be asserted or
threatened by reason of such failure on the part of the
Acquired Fund to have offered and sold such shares in
conformity with such laws.
6.10. The Acquiring Fund shall have received a favorable
opinion of Ropes & Xxxx LLP, counsel to the Acquired Fund
for the transactions contemplated hereby, dated the
Closing Date, with such assumptions and limitations as
shall be in the opinion of such firm appropriate to render
the opinions expressed therein, and in a form satisfactory
to the Acquiring Fund, to the following effect:
(a) This Agreement has been duly authorized, executed and
delivered by the Trust, on behalf of the Acquired Fund,
and assuming the due authorization, execution and
delivery of this Agreement by the Trust, on behalf of
the Acquiring Fund, is a valid and binding obligation
of the Trust and the Acquired Fund enforceable against
the Trust and the Acquired Fund in accordance with its
terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally
and other equitable principles.
(b) The Acquired Fund has the power as a series of a
business trust to sell, assign, transfer and deliver the
assets to be transferred by it hereunder.
(c) The execution and delivery of this Agreement by the
Trust on behalf of the Acquired Fund did not, and the
performance by the Trust and the Acquired Fund of their
obligations hereunder will not, violate the Declaration of
Trust or Bylaws, or any provision of any material agreement
known to such counsel to which the Trust or the Acquired
Fund is a party or by which it is bound or, to the knowledge
of such counsel, result in the acceleration of any
obligation or the imposition of any penalty under any
material agreement, judgment or decree to which the Trust or
the Acquired Fund is a party or by which it is bound.
(d) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental
authority is required for the consummation by the Trust or
the Acquired Fund of the transactions contemplated by this
Agreement, except such as have been obtained.
(e) Such counsel does not know of any legal or governmental
proceedings relating to the Acquired Fund existing on or
before the Closing Date required to be described in the
Registration Statement which are not described as required.
(f) The Trust is registered with the Securities and Exchange
Commission as an investment company under the 1940 Act.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND.
The obligations of the Acquired Fund to complete the transactions
provided for herein shall be subject, at its election, to the
performance by the Acquiring Fund of all the obligations to be
performed by it hereunder on or before the Closing Date and, in
addition thereto, to the following further conditions:
7.1. The Acquiring Fund shall have delivered to the Acquired Fund
a certificate executed on their behalf by the Trust's
President or any Vice President and its Treasurer, in form
and substance satisfactory to the Acquired Fund and dated as
of the Closing Date, to the effect that the representations
and warranties of the Acquiring Fund made in this Agreement
are true and correct at and as of the Closing Date, except
as they may be affected by the transactions contemplated by
this Agreement, and that the Acquiring Fund has complied with
all the covenants and agreements and satisfied all of the
conditions on their parts to be performed or satisfied under
this Agreement at or prior to the Closing Date.
7.2. The Trust, on behalf of the Acquiring Fund, shall have
executed and delivered to the Acquired Fund an assumption of
liabilities agreement dated as of the Closing Date pursuant to
which the Acquiring Fund will assume all of the liabilities of
the Acquired Fund existing at the Valuation Date in connection
with the transactions contemplated by this Agreement.
7.3. All proceedings taken by the Acquiring Fund in connection with
the transactions contemplated by this Agreement and all
documents incidental thereto shall be reasonably satisfactory
in form and substance to the Acquired Fund.
7.4. The Acquired Fund shall have received a favorable opinion of
Ropes & Xxxx LLP, counsel to the Trust for the transactions
contemplated hereby, dated the Closing Date, with such
assumptions and limitations as shall be in the opinion of Ropes
& Xxxx LLP appropriate to render the opinions expressed therein,
and in a form satisfactory to the Acquired Fund, to the
following effect:
(a) This Agreement has been duly authorized, executed and
delivered by the Trust, on behalf of the Acquiring Fund,
and assuming the due authorization, execution and delivery
of this Agreement by the Trust, on behalf of the Acquired
Fund, is the valid and binding obligation of the Trust and
the Acquiring Fund enforceable against the Trust and the
Acquiring Fund in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors'
rights generally and other equitable principles.
(b) The execution and delivery of this Agreement by the Trust on
behalf of the Acquiring Fund did not, and the performance by
the Trust and the Acquiring Fund of their obligations
hereunder will not, violate the Declaration of Trust or
Bylaws, or any provision of any material agreement known to
such counsel to which the Trust or the Acquiring Fund is a
party or by which it is bound or, to the knowledge of such
counsel, result in the acceleration of any obligation or the
imposition of any penalty under any material agreement,
judgment, or decree to which the Trust or the Acquiring Fund
is a party or by which it is bound.
(c) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority
is required for the consummation by the Trust or the
Acquiring Fund of the transactions contemplated by this
Agreement except such as may be required under state
securities or blue sky laws or such as have been obtained.
(d) Such counsel does not know of any legal or governmental
proceedings relating to the Acquiring Fund existing on at
the Closing Date.
(e) The Trust is registered with the Securities and Exchange
Commission as an investment company under the 1940 Act.
(f) Assuming that a consideration not less than the net asset
value thereof has been paid, the Acquiring Fund Shares to
be issued for transfer to the Acquired Fund Shareholders as
provided by this Agreement are duly authorized and upon
such transfer and delivery will be validly issued and
outstanding and fully paid and, except as set forth in the
Acquiring Fund Prospectus, nonassessable Class A shares,
Class B shares, Class C shares, and Class K shares of
beneficial interest in the Acquiring Fund.
(g) The Registration Statement has become effective and, to the
knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES.
The respective obligations of the Trust, the Acquiring Fund, and the
Acquired Fund hereunder are subject to the further conditions that
on or before the Closing Date:
8.1. On the Closing Date, the Commission shall not have issued an
unfavorable report under Section 25(b) of the 1940 Act, nor
instituted any proceeding seeking to enjoin the consummation of the
transactions contemplated by this Agreement under Section 25(c) of
the 1940 Act and no action, suit or other proceeding shall be
threatened or pending before any court or governmental agency in
which it is sought to restrain or prohibit, or obtain damages or
other relief in connection with, this Agreement or the transactions
contemplated herein.
8.2. All consents of other parties and all other consents, orders
and permits of federal, state and local regulatory authorities
(including those of the Commission and of state blue sky and
securities authorities) deemed necessary by the Trust, the Acquired
Fund, or the Acquiring Fund to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been
obtained, except where failure to obtain any such consent, order or
permit would not involve a risk of a material adverse effect on the
assets or properties of the Acquiring Fund or the Acquired Fund.
8.3. The Acquired Fund and the Acquiring Fund shall have received a
favorable opinion of Ropes & Xxxx LLP dated on the Closing Date
(which opinion will be subject to certain qualifications)
satisfactory to both parties substantially to the effect that, on
the basis of the existing provisions of the Code, Treasury
regulations promulgated thereunder, current administrative rules,
and court decisions, although the matter is not free from doubt,
generally for federal income tax purposes:
(a) The Reorganization should constitute a reorganization
within the meaning of Section 368(a) of the Code, and the
Acquired Fund and the Acquiring Fund each should be "a
party to a reorganization" within the meaning of Section
368(b) of the Code;
(b) No gain or loss should be recognized by the Acquired Fund
(i) upon the transfer of its assets to the Acquiring Fund
in exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the liabilities of
the Acquired Fund or (ii) upon the distribution of the
Acquiring Fund Shares by the Acquired Fund to its
shareholders in liquidation, as contemplated in Section 1
hereof;
(c) No gain or loss should be recognized by the Acquiring
Fund upon the receipt of the assets transferred to it
pursuant to this Agreement in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the
liabilities of the Acquired Fund;
(d) The tax basis in the hands of the Acquiring Fund of the
assets of the Acquired Fund transferred to the Acquiring
Fund in the transactions contemplated by this Agreement
should be the same as the tax basis of such assets in the
hands of the Acquired Fund immediately prior to the
transfer;
(e) The Acquiring Fund's holding periods with respect to the
assets of the Acquired Fund should include the respective
periods for which the assets were held by the Acquired
Fund;
(f) Acquired Fund shareholders should recognize no gain or
loss on the distribution of Acquiring Fund Shares to them
in exchange for their Acquired Fund Shares;
(g) The aggregate tax basis of the Acquiring Fund Shares that
an Acquired Fund shareholder receives in connection with
the transactions contemplated by this Agreement should be
the same as the aggregate tax basis of Acquired Fund
Shares exchanged therefor;
(h) An Acquired Fund shareholder's holding period for his or
her Acquiring Fund Shares received pursuant to this
Agreement should be determined by including the holding
period of the Acquired Fund Shares exchanged for the
Acquiring Fund Shares, provided that the shareholder held
Acquired Fund Shares as a capital asset on the date of the
exchange; and
(i) The Acquiring Fund should succeed to and take into account
the items of the Acquired Fund described in Section 381(c)
of the Code, subject to the conditions and limitations
specified in Sections 381, 382, 383 and 384 of the Code and
the regulations thereunder.
The opinion will express no view with respect to the effect of the
Reorganization on any transferred asset as to which any
unrealized gain or loss is required to be recognized under federal
income tax principles (i) at the end of a taxable year or upon the
termination thereof, or (ii) upon the transfer of such asset
regardless of whether such a transfer would otherwise be a
non-taxable transaction.
The opinion will be based on certain factual certifications made by
officers of the Trust, of Acquired Fund's principal shareholder,
The Guardian Life Insurance Company of America, and of the Funds'
investment adviser, RS Investment Management Co. LLC, and will also
be based on customary assumptions. The opinion is not a guarantee
that the tax consequences of the Reorganizations will be as
described above. The opinion will note and distinguish certain
published precedent. There is no assurance that the Internal
Revenue Service or a court would agree with the opinion.
8.4. At any time prior to the Closing, any of the foregoing
conditions of this Section 8 may be waived by the Board of
Trustees of the Trust, if, in the judgment of the Board of
Trustees of the Trust, such waiver will not have a material
adverse effect on the interests of the shareholders of the
Acquired Fund or the interests of the shareholders of the
Acquiring Fund.
9. BROKERAGE FEES; EXPENSES.
9.1. Each of the Trust, the Acquired Fund, and the Acquiring Fund
represents that there is no person who has dealt with it who
by reason of such dealings is entitled to any broker's or
finder's or other similar fee or commission arising out of
the transactions contemplated by this Agreement.
9.2. Except as described in the next sentence in respect of
brokerage and related expenses, The Guardian Life Insurance
Company of America will bear and pay all direct expenses
relating to the Reorganization, including without limitation
legal fees, printing and mailing costs, and fees and expenses
of the Funds' independent accountants. In addition, Guardian
shall bear and pay any brokerage and related expense incurred
by the Acquired Fund or the Acquiring Fund in connection with
the Reorganization in an aggregate amount that is in excess
of the amount of brokerage and related expense RS Investments
estimates the Acquired Fund would have incurred in connection
with a complete liquidation and termination of the Acquired
Fund.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1. This Agreement supersedes all previous correspondence and
oral communications between the parties regarding the
subject matter hereof, constitutes the only understanding
with respect to such subject matter and may not be changed
except by a letter of agreement signed by each party hereto.
10.2. The representations, warranties and covenants contained in
this Agreement or in any other document delivered pursuant
hereto or in connection herewith shall not survive the
consummation of the transactions contemplated hereunder.
11. TERMINATION
11.1. This Agreement may be terminated by the mutual agreement of
the Acquired Fund and the Acquiring Fund, prior to the
Closing Date.
11.2. In addition, either the Acquired Fund or the Acquiring Fund
may at its option terminate this Agreement at or prior to
the Closing Date because:
(a) With respect to a termination by the Acquired Fund, of a
material breach by the Acquiring Fund of any representation,
warranty, covenant or agreement contained herein to be
performed by the Acquiring Fund at or prior to the Closing
Date; or with respect to a termination by the Acquiring Fund,
of a material breach by the Acquired Fund of any
representation, warranty, covenant or agreement herein to be
performed by the Acquired Fund at or prior to the Closing
Date;
(b) A condition herein expressed to be precedent to the
obligations of the terminating party has not been met and it
reasonably appears that it will not or cannot be met; or
(c) Any governmental authority of competent jurisdiction shall
have issued any judgment, injunction, order, ruling or decree
or taken any other action restraining, enjoining or otherwise
prohibiting this Agreement or the consummation of any of the
transactions contemplated herein and such judgment,
injunction, order, ruling, decree or other action becomes
final and non-appealable; provided that the party seeking to
terminate this Agreement pursuant to this Section 11.2(c)
shall have used its reasonable efforts to have such judgment,
injunction, order, ruling, decree or other action lifted,
vacated or denied.
11.3. If the transactions contemplated by this Agreement have not
been substantially completed by December 31,2009, this
Agreement shall automatically terminate on that date unless a
later date is agreed to by both the Acquired Fund and the
Acquiring Fund.
11.4. If for any reason the transactions contemplated by this
Agreement are not consummated, no party shall be liable to
any other party for any damages resulting therefrom, including,
without limitation, consequential damages.
11.5. In the event of the termination of this Agreement and
abandonment of the transactions contemplated hereby pursuant
to this Section 11, this Agreement shall become void and have
no effect except that (a) Sections 9, 11.4, 14 and 15 shall
survive any termination of this Agreement, and (b)
notwithstanding anything to the contrary contained in this
Agreement, no party shall be relieved or released from any
liability or damages arising out of any breach of any
provision of this Agreement by any party prior to the date of
termination, unless the termination is effected pursuant to
Section 11.1.
12. TRANSFER TAXES.
Any transfer taxes payable upon issuance of the Acquiring Fund
Shares in a name other than the registered holder of the Acquired
Fund Shares on the books of the Acquired Fund as of that time shall,
as a condition of such issuance and transfer, be paid by the person
to whom such Acquiring Fund Shares are to be issued and transferred.
13. AMENDMENTS.
This Agreement may be amended, modified or supplemented in such
manner as may be agreed upon in writing by the authorized
officers of the Trust.
14. 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 Trust, the Acquiring Fund or the Acquired Fund
at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attn: Xxxxx X. Xxxxx, President.
15. MISCELLANEOUS.
15.1. The article and Section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
15.2. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
15.3. This Agreement shall be governed by and construed in accordance
with the domestic substantive laws of The Commonwealth of
Massachusetts, without giving effect to any choice or conflicts
of law rule or provision that would result in the application of
the domestic substantive laws of any other jurisdiction.
15.4. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no
assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the written consent
of the other party. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under
or by reason of this Agreement.
15.5. A copy of the Declaration of Trust dated March 13, 1997, as
amended, to which reference is hereby made is on file at the
office of the Secretary of The Commonwealth of Massachusetts and
elsewhere as required by law. This Agreement was executed or
made by or on behalf of the Trust and the Acquiring Fund by the
Trustees or officers of the Trust as Trustees or officers and not
individually and the obligations of this Agreement are not binding
upon any of them or the shareholders of the Acquiring Fund
individually but are binding only upon the assets and property of
the Trust or upon the assets belonging to the series or class for
the benefit of which the Trustees have caused this Agreement to
be made.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its President, a Vice President or
Treasurer.
RS INVESTMENT TRUST
On behalf of RS Large Cap Alpha Fund
By: /S/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: President
RS INVESTMENT TRUST
On behalf of RS Large Cap Value Fund
By: /S/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: President
