CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions: 7.1 All representations, covenants and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's name by the Selling Trust's President or Vice President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request. 7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling Trust. 7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman & Kammholz, dated as of the Closing Date, in a form reasonablx xxxxxfactory to the Acquiring Fund, covering the following points: (a) The Selling Trust is a statutory trust validly existing under the laws of the State of Delaware. (b) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles. (c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylaws.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Janus Investment Fund), Agreement and Plan of Reorganization (Janus Adviser Series)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund Transferring Funds of all the obligations to be performed by the Selling Fund pursuant to this Agreement them hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Fund Transferring Funds contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The Selling Fund , and the Transferring Funds shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Trust's ’s President or Vice President and the Treasurer or Assistant TreasurerPresident, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request. The Acquiring Fund shall have received certified copies of the resolutions adopted by the Board of Trustees of the Transferring Fund approving this Agreement and the transactions contemplated herein.
7.2 The Selling Fund Transferring Funds shall have delivered to the Acquiring Fund a statement of the Selling Fund's Transferring Funds' assets and liabilities, together with a list of the Selling Fund's Transferring Funds' portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling Trust.
7.3 The Acquiring Fund With respect to the Transferring Funds, Xxxxxx shall have received on the Closing Date an opinion of VedderDechert LLP, Price, Kaufman & Kammholz, dated as of counsel to the Closing DateTrust and the Transferring Funds, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust is Transferring Funds are each an investment series of the Trust, a statutory trust duly organized, validly existing and in good standing under the laws of the State of Delaware, and to such counsel’s knowledge, has the trust power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Transferring Funds are each a series of a Delaware statutory trust registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund Transferring Funds and, assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring FundFunds, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund Transferring Funds enforceable against the Selling Fund Transferring Funds in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, reorganization, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(cd) Assuming that a consideration therefore of not less than the net asset value thereof has been paid, and assuming that such shares were issued in accordance with the terms of the Transferring Funds' registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Transferring Funds are legally issued and fully paid and non-assessable, and no shareholder of the Transferring Funds has any statutory preemptive rights in respect thereof.
(e) The Proxy Statement, to the knowledge of such counsel, is effective and no stop order under the 1933 Act pertaining thereto has been issued; and to the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Trust of the transactions contemplated herein, except such as have been obtained under the 1933 Act and the 1940 Act, and as may be required under state securities laws.
(f) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument ’s Agreement and Declaration of Trust or By-laws, or a material provision of any material agreement, indenture, instrument, contract, lease or other undertaking (assuming shareholder approval has in each case known to such counsel) to which the Transferring Funds are a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Trust or the Transferring Funds are a party or by which it or they are bound.
(g) Only insofar as they relate to the Transferring Funds, the descriptions in the Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly represent the information required to be shown.
(h) In the ordinary course of such counsel’s representation of the Transferring Funds and without having made any investigation, such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Transferring Funds existing on or before the effective date of the Proxy Statement or the Closing Date, required to be described in the Proxy Statement or to be filed as exhibits to the Proxy Statement which are not described or filed as required.
(i) In the ordinary course of such counsel’s representation of the Trust and without having made any investigation, and except as otherwise disclosed, to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Trust or any of its respective properties or assets and the Trust is not a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Proxy Statement.
(j) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Trust and the Transferring Funds of the transaction contemplated herein, except such as have been obtained) or bylawsobtained under the 1933 Act, 1934 Act and the 1940 Act, and as may be required under state securities laws. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Dechert LLP appropriate to render the opinions expressed therein.
7.4 Xxxxxx shall have received from the Trust a paid receipt for liability coverage, for the period beginning at the Closing Date and ending not less than five years thereafter, with coverage at least as comparable to the liability coverage currently applicable to both former and current Trustees and officers of the Trust, covering the actions of such Trustees and officers of the Trust for the period they served as such.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Dunham Funds), Agreement and Plan of Reorganization (Dunham Funds)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subjectwith respect to the Acquired Fund shall, at its election, be subject to the performance by the Selling Acquired Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in addition, shall be subject to and the following further conditions:
7.1 All representations, covenants representations and warranties of the Selling Acquired Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and and, except as they may be affected by the transactions contemplated by this Agreement, as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. .
7.2 The Selling Acquired Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Trust's President or Vice President and of the Treasurer or Assistant TreasurerAcquired Fund, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such the effect that the representations and warranties of the Acquired Fund 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 as to such other matters as the Acquiring Fund shall reasonably request.
7.2 7.3 The Selling Acquired Fund shall have delivered to the Acquiring Fund on the Closing Date a statement Statement of the Selling Fund's assets and liabilitiesNet Assets, which Statement shall be prepared in accordance with generally accepted accounting principles consistently applied, together with a list of the Selling Fund's its portfolio securities showing the adjusted tax costs of such securities by lot bases and the holding periods of such securities, securities as of the Closing Date, certified by the Treasurer of the Selling TrustAcquired Fund.
7.3 7.4 On or immediately prior to the Closing Date, the Acquired Fund shall have declared the dividends and/or distributions contemplated by paragraph 1.4.
7.5 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman Xxxxxxx & Kammholz, counsel for the Acquired Fund, dated as of the Closing closing Date, in a form reasonablx xxxxxfactory addressed to the Acquiring Fund, covering Fund substantially in the following pointsform and to the effect that:
(a) 7.5.1 The Selling Trust Acquired Fund is a statutory trust validly duly organized and existing under the laws of the State Commonwealth of Delaware.Massachusetts as a voluntary association with transferable shares of beneficial interest commonly referred to as a “Massachusetts business trust;”
(b) 7.5.2 The Acquired Fund is registered as closed-end management company under the 1940 Act;
7.5.3 This Agreement and the reorganization provided for herein and the execution of this Agreement have been duly authorized and approved by all requisite action of the Acquired Fund and this Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of Acquired Fund and (assuming the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf other parties thereto) is a valid and binding obligation of the Selling Fund enforceable against the Selling Fund in accordance with its termsAcquired Fund, subject except as to enforcement to such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar law affecting creditors’ rights generally, or by general principals of equity (regardless of whether enforcement is sought in a proceeding at equity at law);
7.5.4 Neither the execution or delivery by the Acquired Fund of this Agreement nor the consummation by the Acquired Fund of the transactions contemplated thereby contravene the Acquired Fund’s Declaration of Trust, or, to their knowledge, violate any provision of any statute or any published regulation or any judgment or order disclosed to it by the Acquired Fund as being applicable to the Acquired Fund;
7.5.5 To their knowledge based solely on the certificate of an appropriate officer of the Acquired Fund, there is no pending or threatened litigation involving the Acquired Fund except as disclosed therein;
7.5.6 Except as to financial statements and schedules and other laws relating financial and statistical data included or, incorporated by reference therein and subject to usual and customary qualifications with respect to Rule 10b-5 type opinions, as of the effective date of the Registration Statement filed pursuant to the Agreement, the portions thereof pertaining to the Acquired Fund comply as to form in all material respects with the requirements of the Securities Act, the Securities Exchange Act and the 1940 Act and the rules and regulations of the SEC thereunder and no facts have come to counsel’s attention which would cause them to believe that as of the effectiveness of the portions of the Registration Statement applicable to the Acquired Fund, the Registration Statement contained any untrue statement of a material fact or affecting creditors' rights generally omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and
7.5.7 To their knowledge and subject to general equity principles.
(c) The the qualifications set forth below, the execution and delivery by the Acquired Fund of this the Agreement do not, and the consummation of the transactions therein contemplated hereby will notdo not require, result in a violation under the laws of the Selling Trust's trust instrument States of Massachusetts and Illinois or the federal laws of the United States, the consent, approval, authorization, registration, qualification or order of, or filing with, any court or governmental agency or body (assuming shareholder approval except such as have been obtained under the Securities Act, the 1940 Act or the rules and regulations thereunder and any filing in connection with the termination of the Acquired Fund). Counsel need express no opinion, however, as to any such consent, approval, authorization, registration, qualification, order or filing (a) which may be required as a result of the involvement of other parties to the Agreement in the transactions contemplated by the Agreement because of their legal or regulatory status or because of any other facts specifically pertaining to them; (b) the absence of which does not deprive the Acquiring Fund of any material benefit under the Agreement; or (c) which can be readily obtained without significant delay or expense to the Acquiring Fund, without loss to the Acquiring Fund of any material benefit under the Agreement and without any material adverse effect on the Acquiring Fund during the period such consent, approval, authorization, registration, qualification or order was obtained. The foregoing opinion relates only to consents, approvals, authorizations, registrations, qualifications, orders or filings under (a) laws which are specifically referred to in this opinion, (b) laws of the States of Massachusetts and Illinois and the federal laws of the United States which, in counsel’s experience, are normally applicable to transactions of the type provided for in the Agreement and (c) court orders and judgments disclosed to counsel by the Acquired Fund in connection with the opinion. In addition, although counsel need not specifically have considered the possible applicability to the Acquired Fund of any other laws, orders, or judgments, nothing has been obtained) come to their attention in connection with their representation of the Acquired Fund in this transaction that has caused them to conclude that any other consent, approval, authorization, registration, qualification, order or bylawsfiling is required.
7.5.8 In giving the opinions set forth above, counsel may state that it is relying on certificates of officers of the Acquired Fund with regard to matters of fact and certain certificates and written statements of government officers with respect to the legal existence of the Acquired Fund and on the opinion of Xxxxxxx Xxxx LLP as to matters of Massachusetts law.
Appears in 1 contract
Samples: Reorganization Agreement (Nuveen Washington Premium Income Municipal Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The , and the Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling FFB Trust's President or Vice President and the its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and and, dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.;
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling FFB Trust.; and
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of VedderMorgan, PriceLewis & Bockius, Kaufman & Kammholz, dated as of counsel to the Closing DateSelling Fund, in a form reasonablx xxxxxfactory to sxxxxxxxxxxx xo the Acquiring Fund, Fund covering the following points:: That
(a) The the Selling Trust Fund is a statutory separate investment series of a Massachusetts business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.
Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted; (b) This this Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of Fund, and, assuming that the Selling Fund Prospectus and Proxy Statement, and Registration Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
; (c) The the execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling FFB Trust's Declaration of Trust or By-laws, or any provision of any material agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel) to which the Selling Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Selling 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 of the United States or the Commonwealth of Massachusetts is required for the consummation by the Selling Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities laws; (e) only insofar as they relate to the Selling Fund, the descriptions in the Prospectus and Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly present the information required to be shown; (f) such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Selling Fund existing on or before the date of mailing of the Prospectus and Proxy Statement and the Closing Date, required to be described in the Prospectus and Proxy Statement or to be filed as an exhibit to the Registration Statement which are not described or filed as required; (g) the Selling Fund is a separate investment series of a Massachusetts business trust instrument registered as an investment company under the 1940 Act and to such counsel's best knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect; (h) to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Selling Fund or any of its respective properties or assets and the Selling Fund is neither a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Prospectus and Proxy Statement; (i) assuming shareholder approval that a consideration therefor not less than the net asset value thereof has been obtainedpaid, and assuming that such shares were issued in accordance with the terms of the Selling Fund's registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Selling Fund are legally issued and fully paid and non-assessable (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). Such counsel shall also state that they have participated in conferences with officers and other representatives of the Selling Fund at which the contents of the Prospectus and Proxy Statement and related matters were discussed and, although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus and Proxy Statement (except to the extent indicated in paragraph (e) of their above opinion ), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the FFB Trust's officers and other representatives of the Selling Fund ), no facts have come to their attention that lead them to believe that the Prospectus and Proxy Statement as of its date, as of the date of the Selling Fund Shareholders' meeting, and as of the Closing Date, contained an untrue statement of a material fact or bylawsomitted to state a material fact required to be stated therein regarding the Selling Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Selling Fund not misleading. Such opinion may state that such counsel does not express any opinion or belief as to the financial statements or any financial or statistical data, or as to the information relating to the Acquiring Fund, contained in the Prospectus and Proxy Statement or Registration Statement, and that such opinion is solely for the benefit of the Acquiring Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Morgan, Lewis & Bockius appropriate to render the opinions expresxxx xxxxxxx xnd xxxxx xndicate, with respect to matters of Massachusetts law, that as Morgan, Lewis & Bockius are not admitted to the bar of Massachusexxx, xxxx xxxnions are based either upon the review of published statutes, case cases and rules and regulations of the Commonwealth of Massachusetts or upon an opinion of Massachusetts counsel. In this paragraph 7.3, references to Prospectus and Proxy Statement include and relate to only the text of such Prospectus and Proxy Statement and not to any exhibits or attachments thereto or to any documents incorporated by reference therein.
7.4 The merger between First Union Corporation and First Fidelity Bancorporation shall be completed prior to the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Money Market Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Trust and the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice ’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedderfrom Xxxx Xxxxxxxx LLP, Price, Kaufman & Kammholzor local Massachusetts counsel, dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering Fund substantially to the following pointseffect that:
(a) The Selling Fund is a duly authorized, separate series of the Selling Trust, and the Selling Trust is a statutory business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, with power under its Declaration of Trust and Bylaws, each as amended from time to time, to own all of the properties and assets of the Selling Fund and to carry on the business as presently conducted.
(b) The Selling Trust is registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration under the 1940 Act is in full force and effect.
(c) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required for consummation by the Selling Fund of the transactions contemplated herein, except as have been obtained.
(d) The execution and delivery of this Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Selling Trust’s Declaration of Trust, as amended (assuming approval of Selling Fund shareholders has been obtained) or its Bylaws.
(e) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust Company on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(c) The execution . Such opinion shall be based on customary assumptions and delivery such representations as Xxxx Xxxxxxxx LLP, or local Massachusetts counsel may reasonably request of this Agreement do notthe Funds, and the consummation Selling Fund and the Acquiring Fund will cooperate to make and certify the accuracy of such representations.
7.3 As of the transactions contemplated hereby will notClosing Date, result in a violation the assets of the Selling Trust's trust instrument Fund to be acquired by the Acquiring Fund will include no assets which the Acquiring Fund has identified to the Selling Fund at least two (assuming shareholder approval has been obtained2) business days prior to Closing as being unsuitable for the Acquiring Fund to acquire by reason of limitations in the Acquiring Company Governing Documents, or bylawsof investment restrictions disclosed in the Registration Statement.
7.4 The Selling Trust shall have declared all necessary distributions to the Selling Fund Shareholders, which, together with all previous distributions, will have the effect of distributing to the Selling Fund Shareholders all of the Selling Fund’s investment company taxable income (computed without regard to the deduction for dividends paid) and net realized capital gains, if any, through the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Meridian Fund Inc)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, subject to the performance by the Selling Fund fulfillment or waiver of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Trust and the Selling Fund contained in this Reorganization Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice ’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered performed and complied in all material respects with all terms, conditions, covenants, obligations, agreements and restrictions required by this Reorganization Agreement to the Acquiring Fund a statement of be performed or complied with by the Selling Fund's assets and liabilities, together with a list of Fund prior to or at the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling TrustClosing.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedderfrom Xxxxxx, Price, Kaufman Xxxxx & KammholzBockius LLP, dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering Fund substantially to the following pointseffect that:
(a) The Selling Trust is has been formed as a statutory trust validly and is existing under the laws of the State of DelawareDelaware and, as far as counsel’s knowledge, has the power as a statutory trust under its Amended and Restated Agreement and Declaration of Trust, to carry on its business as an open-end investment company. The Selling Fund has been established as a separate series of the Selling Trust under the Amended and Restated Agreement and Declaration of Trust.
(b) The Selling Trust is registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration under the 1940 Act is in full force and effect.
(c) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority under U.S. federal law or the Delaware Statutory Trust Act is required to be obtained in order to consummate the transactions contemplated herein, except as have been obtained (it being understood that we have made no independent investigation or analysis with respect to state securities laws and are not opining on such laws).
(d) The execution and delivery of this Reorganization Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Selling Trust’s Amended and Restated Agreement and Declaration of Trust (assuming approval of Selling Fund Shareholders has been obtained) or its Bylaws.
(e) This Reorganization Agreement has been duly authorized, executed and and, so far as known to such counsel, delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Reorganization Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Trust on behalf of the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(c) The execution . In rendering its opinion, Xxxxxx, Xxxxx & Xxxxxxx LLP may rely on local state counsel. Such opinion shall be based on customary assumptions and delivery such representations as Xxxxxx, Xxxxx & Bockius LLP and local counsel may reasonably request of this Agreement do notthe Funds, and the consummation Selling Fund and the Acquiring Fund will cooperate to make and certify the accuracy of such representations.
7.4 The Selling Fund will, within a five (5) business days prior to the transactions contemplated hereby will notClosing Date, result as such term is defined in Section 3.1 of this Reorganization Agreement, furnish the Acquiring Fund with a violation list of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylawsFund’s portfolio securities and other investments.
Appears in 1 contract
Samples: Reorganization Agreement (Segall Bryant & Hamill Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, subject to the performance by the Selling Fund fulfillment or waiver of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Fund Acquired Trust, the Target Fund, and WST contained in this Reorganization Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Target Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Target Fund's ’s name by the Selling Acquired Trust's President or Vice ’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund Target Fund, the Acquired Trust, and WST shall have delivered performed and complied in all material respects with all terms, conditions, covenants, obligations, agreements and restrictions required by this Reorganization Agreement to be performed or complied with by the Acquiring Fund a statement of Target Fund, the Selling Fund's assets Acquired Trust, and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securitiesWST, as of applicable, prior to or at the Closing Date, certified by the Treasurer of the Selling TrustClosing.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion from Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP, with such assumptions, qualifications and limitations as shall be in reasonable opinion of Vedder, Price, Kaufman & Kammholzsuch firm appropriate to render the opinion expressed herein, dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering Fund substantially to the following pointseffect that:
(a) The Selling Acquired Trust is has been formed as a statutory trust validly and is existing under the laws of the State of DelawareDelaware and, as far as counsel’s knowledge, has the power as a statutory trust under its Declaration of Trust, to carry on its business as an open-end investment company. The Target Fund has been established as a separate series of the Acquired Trust under the Declaration of Trust.
(b) The Acquired Trust is registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration under the 1940 Act is in full force and effect.
(c) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Target Fund of the transactions contemplated herein, except as have been obtained.
(d) The execution and delivery of this Reorganization Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Acquired Trust’s Declaration of Trust, as amended (assuming approval of the Target Fund’s Shareholders has been obtained) or its By-Laws.
(e) This Reorganization Agreement has been duly authorized, executed and and, so far as known to such counsel, delivered by the Selling Acquired Trust on behalf of the Selling Target Fund and, assuming due authorization, execution and delivery of this Reorganization Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Acquired Trust on behalf of the Selling Target Fund enforceable against the Selling Acquired Trust on behalf of the Target Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
7.4 The Target Fund will, within five (c5) The execution and delivery business days prior to the Closing Date, as such term is defined in Section 3.1 of this Agreement do notReorganization Agreement, and furnish the consummation Acquiring Fund with a list of the transactions contemplated hereby will notTarget Fund’s portfolio securities and other investments.
7.5 The Target Fund will, result in prior to the Closing, consolidate its outstanding share classes into a violation single class (the “Share Class Consolidation”) so that it has a single class of shares outstanding and so that each shareholder of that single class of shares holds shares of that single class immediately after the Share Class Consolidation with an aggregate value equal to the aggregate value of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylawsshares of the Target Fund held immediately prior to the Share Class Consolidation.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Termination (NEOS ETF Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's name by the Selling Trust's President or Vice President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman Xxxxxxx & Kammholz, dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust is a statutory business trust validly existing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylaws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Janus Investment Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Fund and the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice Fund’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's ’s assets and liabilities, together with a list of the Selling Fund's ’s portfolio securities showing the tax costs basis of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling TrustFund.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman from Xxxxx Xxxxxx & KammholzXxxxxx LLP, dated as of the Closing Date, substantially in a the form reasonablx xxxxxfactory to of Exhibit B. Such opinion shall be based on customary assumptions and such representations as Xxxxx Xxxxxx & Xxxxxx LLP may reasonably request of the Funds, and the Selling Fund and the Acquiring Fund, covering Fund will cooperate to make and certify the following points:accuracy of such representations.
(a) The Selling Trust is a statutory trust validly existing under the laws 7.4 As of the State of Delaware.
(b) This Agreement has been duly authorizedClosing Date, executed and delivered by the Selling Trust on behalf assets of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement to be acquired by the Acquiring Trust on behalf Fund will include no assets which the Acquiring Fund identifies to the Selling Fund as being unsuitable for the Acquiring Fund to acquire by reason of limitations in the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's ’s trust instrument (assuming shareholder approval has been obtained) or bylaws, or of investment restrictions disclosed in the Registration Statement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (DCA Total Return Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Acquired Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Acquired Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The Selling Date and that all of the Acquired Fund’s covenants have been complied with and conditions satisfied, and the Acquired Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Elite Trust's ’s President or Vice President and the Treasurer or Assistant TreasurerPresident, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Acquired Fund shall have delivered to the Acquiring Fund a statement of the Selling Acquired Fund's ’s assets and liabilities, together with a list of the Selling Acquired Fund's ’s portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling Trust.
7.3 The Acquiring Fund With respect to the Acquired Fund, the Cxxxxx Trust shall have received on the Closing Date an opinion of VedderMadrona Legal Advisers, PriceLLC, Kaufman & Kammholz, dated as of counsel to The Elite Trust and the Closing DateAcquired Fund, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust Acquired Fund is a separate investment series of the Elite Trust, a statutory trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts and has the trust power to own all of its properties and assets and, to the knowledge of such counsel, to carry on its business as presently conducted.
(b) The Acquired Fund is a separate investment series of a Massachusetts business trust registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Acquired Fund and, assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Acquired Fund enforceable against the Selling Acquired Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(cd) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required for consummation by the Acquired Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act and the 1940 Act, and as may be required under state securities laws.
(e) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument Elite Declaration of Trust or By-laws, or a material provision of any material agreement, indenture, instrument, contract, lease or other undertaking (assuming shareholder approval in each case known to such counsel) to which the Acquired Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Acquired Fund is a party or by which it is bound.
(f) Only insofar as they relate to the Acquired Fund, the descriptions in the Registration Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly represent the information required to be shown.
(g) Such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Acquired Fund existing on or before the effective date of the Registration Statement or the Closing Date, required to be described in the Registration Statement or to be filed as exhibits to the Registration Statement which are not described or filed as required.
(h) To the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Acquired Fund or any of its respective properties or assets and the Acquired Fund is not a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Registration Statement.
(i) Assuming that a consideration therefor of not less than the net asset value thereof has been obtained) paid, and assuming that such shares were issued in accordance with the terms of the Acquired Fund’s registration statement, or bylawsany amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Acquired Fund are legally issued and fully paid and non-assessable. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Madrona Legal Advisers, LLC appropriate to render the opinions expressed therein.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Transferring Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement them hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Transferring Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The Selling , and the Transferring Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Trust's President or Vice President and the Treasurer or Assistant TreasurerPresident, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request. The Acquiring Fund shall have received certified copies of the resolutions adopted by the Board of Trustees of the Transferring Fund approving this Agreement and the transactions contemplated herein.
7.2 The Selling Transferring Fund shall have delivered to the Acquiring Fund a statement of the Selling Transferring Fund's assets and liabilities, together with a list of the Selling Transferring Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling Trust.
7.3 The Acquiring Fund With respect to the Transferring Fund, Dxxxxx Trust shall have received on the Closing Date an opinion of VedderThe Law Offices of Jxxx X. Xxxxxx & Associates, PriceInc., Kaufman & Kammholz, dated as of counsel to the Closing DateTrust and the Transferring Fund, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust Transferring Fund is an investment series of the World Funds Trust, a statutory trust duly organized, validly existing and in good standing under the laws of the State of Delaware, and to such counsel's knowledge, has the trust power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Transferring Fund are each a series of a Delaware statutory trust registered as an investment company under the 1940 Act, and, to such counsel's knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Transferring Fund and, assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring FundFunds, is a valid and binding obligation of the Selling Trust on behalf of the Selling Transferring Fund enforceable against the Selling Transferring Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, reorganization, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(cd) Assuming that a consideration therefore of not less than the net asset value thereof has been paid, and assuming that such shares were issued in accordance with the terms of the Transferring Fund's registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Transferring Fund are legally issued and fully paid and non-assessable, and no shareholder of the Transferring Fund has any statutory preemptive rights in respect thereof.
(e) The Proxy Statement, to the knowledge of such counsel, is effective and no stop order under the 1933 Act pertaining thereto has been issued; and to the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Trust of the transactions contemplated herein, except such as have been obtained under the 1933 Act and the 1940 Act, and as may be required under state securities laws.
(f) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument Agreement and Declaration of Trust or By-laws, or a material provision of any material agreement, indenture, instrument, contract, lease or other undertaking (assuming shareholder approval has in each case known to such counsel) to which the Transferring Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Trust or the Transferring Fund is a party or by which it or they are bound.
(g) Only insofar as they relate to the Transferring Fund, the descriptions in the Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly represent the information required to be shown.
(h) In the ordinary course of such counsel's representation of the Transferring Fund and without having made any investigation, such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Transferring Fund existing on or before the effective date of the Proxy Statement or the Closing Date, required to be described in the Proxy Statement or to be filed as exhibits to the Proxy Statement which are not described or filed as required.
(i) In the ordinary course of such counsel's representation of the Trust and without having made any investigation, and except as otherwise disclosed, to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Trust or any of its respective properties or assets and the Trust is not a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Proxy Statement.
(j) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the World Funds Trust and the Transferring Fund of the transaction contemplated herein, except such as have been obtained) or bylawsobtained under the 1933 Act, 1934 Act and the 1940 Act, and as may be required under state securities laws. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of The Law Offices of Jxxx X. Xxxxxx & Associates, Inc. appropriate to render the opinions expressed therein.
7.4 Dxxxxx Trust shall have received from the Trust a paid receipt for liability coverage, for the period beginning at the Closing Date and ending not less than five years thereafter, with coverage at least as comparable to the liability coverage currently applicable to both former and current Trustees and officers of the Trust, covering the actions of such Trustees and officers of the Trust for the period they served as such.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Dunham Funds)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Trust and the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice ’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedderfrom Xxxx Xxxxxxxx LLP, Price, Kaufman & Kammholzor local Massachusetts counsel, dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering Fund substantially to the following pointseffect that:
(a) The Selling Fund is a duly authorized, separate series of the Selling Trust, and the Selling Trust is a statutory business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, with power under its Declaration of Trust and Bylaws, each as amended from time to time, to own all of its properties and assets and to carry on the business as presently conducted.
(b) The Selling Trust is registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration under the 1940 Act is in full force and effect.
(c) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required for consummation by the Selling Fund of the transactions contemplated herein, except as have been obtained.
(d) The execution and delivery of this Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Selling Trust’s Declaration of Trust, as amended (assuming approval of Selling Fund shareholders has been obtained) or its Bylaws.
(e) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust Company on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(c) The execution . Such opinion shall be based on customary assumptions and delivery such representations as Xxxx Xxxxxxxx LLP, or local Massachusetts counsel may reasonably request of this Agreement do notthe Funds, and the consummation Selling Fund and the Acquiring Fund will cooperate to make and certify the accuracy of such representations.
7.3 As of the transactions contemplated hereby will notClosing Date, result in a violation the assets of the Selling Trust's trust instrument Fund to be acquired by the Acquiring Fund will include no assets which the Acquiring Fund has identified to the Selling Fund at least two (assuming shareholder approval has been obtained2) business days prior to Closing as being unsuitable for the Acquiring Fund to acquire by reason of limitations in the Acquiring Company Governing Documents, or bylawsof investment restrictions disclosed in the Registration Statement.
7.4 The Selling Trust shall have declared all necessary distributions to the Selling Fund Shareholders, which, together with all previous distributions, will have the effect of distributing to the Selling Fund Shareholders all of the Selling Fund’s investment company taxable income (computed without regard to the deduction for dividends paid) and net realized capital gains, if any, through the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Meridian Fund Inc)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The , and the Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Trust's ’s President or Vice President and the Treasurer or Assistant TreasurerPresident, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's ’s assets and liabilities, together with a list of the Selling Fund's ’s portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling Trust.
7.3 The With respect to the Acquiring Fund Fund, the Trust shall have received on the Closing Date an opinion of VedderXxxxxxxx & Worcester LLP, Price, Kaufman & Kammholz, dated as of counsel to the Closing DateTrust and the Selling Fund, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust Fund is a separate investment series of the Trust, a statutory trust duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has the trust power to own all of its properties and assets and, to the knowledge of such counsel, to carry on its business as presently conducted.
(b) The Selling Fund is a separate investment series of a Delaware statutory trust registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(cd) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Selling Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act and the 1940 Act, and as may be required under state securities laws.
(e) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Trust’s Declaration of Trust or By-laws, or a material provision of any material agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel) to which the Selling Trust's trust instrument Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Selling Fund is a party or by which it is bound.
(assuming shareholder approval f) Only insofar as they relate to the Selling Fund, the descriptions in the Schedule 14C Information Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly represent the information required to be shown.
(g) Such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Selling Fund existing on or before the effective date of the Schedule 14C Information Statement or the Closing Date, required to be described in the Schedule 14C Information Statement or to be filed as exhibits to the Schedule 14C Information Statement which are not described or filed as required.
(h) To the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Selling Fund or any of its respective properties or assets and the Selling Fund is not a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Schedule 14C Information Statement.
(i) Assuming that a consideration therefor of not less than the net asset value thereof has been obtained) paid, and assuming that such shares were issued in accordance with the terms of the Selling Fund’s registration statement, or bylawsany amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Selling Fund are legally issued and fully paid and non-assessable. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Xxxxxxxx & Worcester LLP appropriate to render the opinions expressed therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Huntington Funds)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Transferring Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Transferring Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The Selling , and the Transferring Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Hallmark Trust's ’s President or Vice President and the Treasurer or Assistant TreasurerPresident, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Transferring Fund shall have delivered to the Acquiring Fund a statement of the Selling Transferring Fund's ’s assets and liabilities, together with a list of the Selling Transferring Fund's ’s portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling Hallmark Trust.
7.3 The Acquiring Fund With respect to the Transferring Fund, the Northern Trust shall have received on the Closing Date an opinion of Vedder, Price, Kaufman & Kammholz, dated as the General Counsel of the Closing DateHallmark Trust, counsel to the Hallmark Trust and the Transferring Fund, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust Transferring Fund is an investment series of the Hallmark Trust, a statutory trust duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and, to the knowledge of such counsel, has the trust power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Transferring Fund is a series of a Delaware statutory trust registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Hallmark Trust on behalf of the Selling Transferring Fund and, assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Transferring Fund enforceable against the Selling Transferring Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, reorganization, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(cd) Assuming that a consideration therefore of not less than the net asset value thereof has been paid, and assuming that such shares were issued in accordance with the terms of the Transferring Fund’s registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Transferring Fund are legally issued and fully paid and non-assessable.
(e) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Hallmark Trust’s Declaration of Trust or By-laws, or a material provision of any material agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel) to which the Transferring Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Transferring Fund is a party or by which it is bound.
(f) Only insofar as they relate to the Transferring Fund, the descriptions in the Proxy Statement/Prospectus of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly represent the information required to be shown.
(g) In the ordinary course of such counsel's trust instrument representation of the Transferring Fund and without having made any investigation, such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Transferring Fund existing on or before the effective date of the Registration Statement or the Closing Date, required to be described in the Registration Statement or to be filed as exhibits to the Registration Statement which are not described or filed as required.
(assuming shareholder approval has h) In the ordinary course of such counsel's representation of the Transferring Fund and without having made any investigation, and except as otherwise disclosed, to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Transferring Fund or any of its respective properties or assets and the Transferring Fund is not a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Proxy Statement/Prospectus.
(i) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Transferring Fund of the transactions contemplated herein, except such as have been obtained) or bylawsobtained under the 1933 Act, 1934 Act and the 1940 Act, and as may be required under state securities laws. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of the General Counsel of the Hallmark Trust appropriate to render the opinions expressed therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Northern Lights Fund Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Acquired Fund of all the obligations to be performed by the Selling Acquired Fund pursuant to this Agreement Agreement, on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Acquired Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the such Closing Date. The Selling Acquired Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Acquired Fund's ’s name by the Selling Esoterica Trust's ’s President or Vice President and the its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the such Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund Esoterica Trust, on behalf of the Acquired Fund, shall have duly executed and delivered to the Acquiring Fund a statement IMST Trust such bills of sale, assignments, certificates and other instruments of transfer as may be necessary or desirable to transfer all right, title and interest of the Selling Fund's assets Acquired Fund in and liabilities, together with a list of to the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling TrustAcquired Assets.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion a certification from the President of Vedder, Price, Kaufman & KammholzEsoterica Trust, dated as of the Closing Date, in a form reasonablx xxxxxfactory to the Acquiring Fund, covering addressing the following points:
(ai) The Selling Esoterica Trust is a statutory trust validly existing and in good standing under the laws of the State of DelawareDelaware and has power to own all of its properties and assets and to carry on its business as presently conducted and described in the registration statement on Form N-1A of Esoterica Trust, and the Acquired Fund is a separate series of Esoterica Trust constituted in accordance with the applicable provisions of the 1940 Act and the Agreement and Declaration of Trust of Esoterica Trust.
(bii) This Agreement Esoterica Trust is registered with the SEC as an investment company under the 1940 Act and such registration with the SEC is in full force and effect.
(iii) The Acquired Fund has been duly authorizedthe power to sell, executed assign, transfer and delivered deliver its assets to be transferred by it under the Selling Trust on behalf Agreement, and, upon consummation of the Selling transactions contemplated hereby, the Acquired Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of will have transferred such assets to the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(civ) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby herein will not, result in a violation of Esoterica Trust’s Agreement and Declaration of Trust.
(v) No consent, approval, authorization or order of any court or governmental authority under U.S. federal law or the Selling Delaware Statutory Trust Act is required to be obtained for the consummation by Esoterica Trust and the Acquired Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and as may be required under Delaware securities laws.
(vi) To the knowledge of the President of Esoterica Trust's trust instrument (assuming shareholder approval , except as has been obtained) disclosed in writing to the IMST Trust, no litigation or bylawsadministrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to Esoterica Trust or the Acquired Fund or any of their properties or assets or any person whom Esoterica Trust or the Acquired Fund may be obligated to indemnify in connection with such litigation, proceeding or investigation, and neither Esoterica Trust nor the Acquired Fund is 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.
7.4 The Acquired Fund shall have delivered to the Acquiring Fund the documents and information described in paragraphs 5.5 and 5.9.
7.5 The Esoterica Trust Board of Trustees, including a majority of Trustees who are not “interested persons” of Esoterica Trust as defined under the 1940 Act, has determined that the transactions contemplated by this Agreement are in the best interests of the Acquired Fund and that the interests of the existing shareholders of the Acquired Fund would not be diluted as a result of such transactions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Investment Managers Series Trust II)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, subject to the performance by the Selling Fund fulfillment or waiver of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Trust and the Selling Fund contained in this Reorganization Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice ’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered performed and complied in all material respects with all terms, conditions, covenants, obligations, agreements and restrictions required by this Reorganization Agreement to the Acquiring Fund a statement of be performed or complied with by the Selling Fund's assets and liabilities, together with a list of Fund prior to or at the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling TrustClosing.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman & Kammholzfrom Dechert LLP, dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering Fund substantially to the following pointseffect that:
(a) The Selling Trust is has been formed as a business statutory trust validly and is existing under the laws of the State of DelawareDelaware and, as far as counsel’s knowledge, has the power as a business trust under its Trust Instrument, as amended, to carry on its business as an open-end investment company. The Selling Fund has been established as a separate series of the Trust under the Trust Instrument, as amended.
(b) The Selling Trust is registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration under the 1940 Act is in full force and effect.
(c) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Selling Fund of the transactions contemplated herein, except as have been obtained.
(d) The execution and delivery of this Reorganization Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Selling Trust’s Declaration of Trust, as amended (assuming approval of Selling Fund Shareholders has been obtained) or its Bylaws.
(e) This Reorganization Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(c) The execution . In rendering its opinion, Dechert LLP may rely on local state counsel. Such opinion shall be based on customary assumptions and delivery such representations as Dechert LLP and local counsel may reasonably request of this Agreement do notthe Funds, and the consummation Selling Fund and the Acquiring Fund will cooperate to make and certify the accuracy of such representations.
7.4 As of the transactions contemplated hereby will notClosing Date, result in a violation the assets of the Selling Fund to be acquired by the Acquiring Fund will include no assets which the Acquiring Fund has identified to the Selling Fund at least two (2) business days prior to the Closing Date as being unsuitable for the Acquiring Fund to acquire by reason of limitations in the Acquiring Trust's ’s trust instrument (assuming shareholder approval has been obtained) or bylaws, or of investment restrictions disclosed in the Registration Statement. The Selling Fund will, within a five (5) business days prior to the Closing Date, as such term is defined in Section 3.1 of this Reorganization Agreement, furnish the Acquiring Fund with a list of the Selling Fund’s portfolio securities and other investments.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The , and the Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling FFB Trust's President or Vice President and the its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and and, dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.;
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling FFB Trust.; and
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of VedderMorgan, Price, Kaufman Lewis & Kammholz, dated as of Bockius counsel to the Closing DateSelling Fund, in a form reasonablx xxxxxfactory satisfactory to the Acquiring Fund, Fund covering the following points:: Xxxx
(a) The the Selling Trust Fund is a statutory separate investment series of a Massachusetts business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.
Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted; (b) This this Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of Fund, and, assuming that the Selling Fund Prospectus and Proxy Statement, and Registration Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
; (c) The the execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling FFB Trust's Declaration of Trust or By-laws, or any provision of any material agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel) to which the Selling Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Selling 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 of the United States or the Commonwealth of Massachusetts is required for the consummation by the Selling Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities laws; (e) only insofar as they relate to the Selling Fund, the descriptions in the Prospectus and Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly present the information required to be shown; (f) such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Selling Fund existing on or before the date of mailing of the Prospectus and Proxy Statement and the Closing Date, required to be described in the Prospectus and Proxy Statement or to be filed as an exhibit to the Registration Statement which are not described or filed as required; (g) the Selling Fund is a separate investment series of a Massachusetts business trust instrument registered as an investment company under the 1940 Act and to such counsel's best knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect; (h) to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Selling Fund or any of its respective properties or assets and the Selling Fund is neither a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Prospectus and Proxy Statement; (i) assuming shareholder approval that a consideration therefor not less than the net asset value thereof has been obtainedpaid, and assuming that such shares were issued in accordance with the terms of the Selling Fund's registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Selling Fund are legally issued and fully paid and non-assessable (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). Such counsel shall also state that they have participated in conferences with officers and other representatives of the Selling Fund at which the contents of the Prospectus and Proxy Statement and related matters were discussed and, although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus and Proxy Statement (except to the extent indicated in paragraph (e) of their above opinion ), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the FFB Trust's officers and other representatives of the Selling Fund ), no facts have come to their attention that lead them to believe that the Prospectus and Proxy Statement as of its date, as of the date of the Selling Fund Shareholders' meeting, and as of the Closing Date, contained an untrue statement of a material fact or bylawsomitted to state a material fact required to be stated therein regarding the Selling Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Selling Fund not misleading. Such opinion may state that such counsel does not express any opinion or belief as to the financial statements or any financial or statistical data, or as to the information relating to the Acquiring Fund, contained in the Prospectus and Proxy Statement or Registration Statement, and that such opinion is solely for the benefit of the Acquiring Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Morgan, Lewis & Bockius appropriate to render the opinions expressed therein and shall indicate, with respect to matters of Massaxxxxxxxx xxx, thxx xx Xorgan, Lewis & Bockius are not admitted to the bar of Massachusetts, such opinions are based either upon the review of published xxxxxxxx, xxse cases and rules and regulations of the Commonwealth of Massachusetts or upon an opinion of Massachusetts counsel. In this paragraph 7.3, references to Prospectus and Proxy Statement include and relate to only the text of such Prospectus and Proxy Statement and not to any exhibits or attachments thereto or to any documents incorporated by reference therein.
7.4 The merger between First Union Corporation and First Fidelity Bancorporation shall be completed prior to the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Growth & Income Fund /Ny/)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Trust and the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice ’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's ’s assets and liabilities, together with a list of the Selling Fund's ’s portfolio securities showing the tax costs basis of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman from Xxxxxx Xxxxx Xxxxxxxx & KammholzXxxxxxx LLP, dated as of the Closing Date, substantially in a the form reasonablx xxxxxfactory to of Exhibit B. Such opinion shall be based on customary assumptions and such representations as Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP may reasonably request of the Funds, and the Selling Fund and the Acquiring Fund, covering Fund will cooperate to make and certify the following points:accuracy of such representations.
(a) The Selling Trust is a statutory trust validly existing under the laws 7.4 As of the State of Delaware.
(b) This Agreement has been duly authorizedClosing Date, executed and delivered by the Selling Trust on behalf assets of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement to be acquired by the Acquiring Trust on behalf of Fund will include no assets which the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of Fund identifies to the Selling Fund enforceable against as being unsuitable for the Selling Acquiring Fund to acquire by reason of limitations in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Acquiring Trust's ’s trust instrument (assuming shareholder approval has been obtained) or bylaws, or of investment restrictions disclosed in the Registration Statement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Financial Investors Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The , and the Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling FFB Trust's President or Vice President and the its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and and, dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.;
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling FFB Trust.; and
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of VedderMorgan, Price, Kaufman Lewis & Kammholz, dated as of Bockius counsel to the Closing DateSelling Fund, in a form reasonablx xxxxxfactory to the satixxxxxxxx xx xhe Acquiring Fund, Fund covering the following points:
(a) The the Selling Trust Fund is a statutory separate investment series of a Massachusetts business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.
Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted; (b) This this Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of Fund, and, assuming that the Selling Fund Prospectus and Proxy Statement, and Registration Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
; (c) The the execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling FFB Trust's Declaration of Trust or By-laws, or any provision of any material agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel) to which the Selling Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Selling 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 of the United States or the Commonwealth of Massachusetts is required for the consummation by the Selling Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities laws; (e) only insofar as they relate to the Selling Fund, the descriptions in the Prospectus and Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly present the information required to be shown; (f) such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Selling Fund existing on or before the date of mailing of the Prospectus and Proxy Statement and the Closing Date, required to be described in the Prospectus and Proxy Statement or to be filed as an exhibit to the Registration Statement which are not described or filed as required; (g) the Selling Fund is a separate investment series of a Massachusetts business trust instrument registered as an investment company under the 1940 Act and to such counsel"s best knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect; (h) to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Selling Fund or any of its respective properties or assets and the Selling Fund is neither a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Prospectus and Proxy Statement; (i) assuming shareholder approval that a consideration therefor not less than the net asset value thereof has been obtainedpaid, and assuming that such shares were issued in accordance with the terms of the Selling Fund's registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Selling Fund are legally issued and fully paid and non-assessable (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). Such counsel shall also state that they have participated in conferences with officers and other representatives of the Selling Fund at which the contents of the Prospectus and Proxy Statement and related matters were discussed and, although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus and Proxy Statement (except to the extent indicated in paragraph (e) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the FFB Trust's officers and other representatives of the Selling Fund ), no facts have come to their attention that lead them to believe that the Prospectus and Proxy Statement as of its date, as of the date of the Selling Fund Shareholders' meeting, and as of the Closing Date, contained an untrue statement of a material fact or bylawsomitted to state a material fact required to be stated therein regarding the Selling Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Selling Fund not misleading. Such opinion may state that such counsel does not express any opinion or belief as to the financial statements or any financial or statistical data, or as to the information relating to the Acquiring Fund, contained in the Prospectus and Proxy Statement or Registration Statement, and that such opinion is solely for the benefit of the Evergreen Trust and the Acquiring Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Morgan, Lewis & Bockius appropriate to render the opinions expressex xxxxxxx xxx shxxx xxxicate, with respect to matters of Massachusetts law, that as Morgan, Lewis & Bockius are not admitted to the bar of Massachusettx, xxxx xxxxxons are based either upon the review of published statutes, case cases and rules and regulations of the Commonwealth of Massachusetts or upon an opinion of Massachusetts counsel. In this paragraph 7.3, references to Prospectus and Proxy Statement include and relate to only the text of such Prospectus and Proxy Statement and not to any exhibits or attachments thereto or to any documents incorporated by reference therein.
7.4 The merger between First Union Corporation and First Fidelity Bancorporation shall be completed prior to the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Acquired Fund of all the obligations to be performed by the Selling Acquired Fund pursuant to this Agreement Agreement, on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Acquired Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of such Closing Date and all covenants of the Acquired Fund contained in this Agreement shall have been complied with in all material respects as of the Closing Date. The Selling Acquired Fund shall have delivered to the Acquiring Fund on the such Closing Date a certificate executed in the Selling Acquired Fund's name by the Selling FBR Trust's President or Vice President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the such Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Acquired Fund shall have delivered to the Acquiring Fund a statement of the Selling Acquired Fund's assets and liabilities, together with a list of the Selling Acquired Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling FBR Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of VedderDechert LLP, Price, Kaufman & Kammholz, dated as of the Closing Date, in a form reasonablx xxxxxfactory counsel to the Acquiring FundFBR Trust ("Counsel"), covering substantially to the following pointseffect that:
(a) The Selling Trust Acquired Fund is a validly existing series of the FBR Trust, a statutory trust duly formed and validly existing and in good standing under the laws of the State of DelawareDelaware with the power under its Trust Instrument to carry on its business and to own all of its properties and assets.
(b) This Agreement (a) has been duly authorized, authorized and executed and delivered by the Selling FBR Trust on behalf of the Selling Acquired Fund and, and (b) assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a legal, valid and binding obligation of the Selling Trust on behalf of the Selling Fund Acquired Fund, enforceable against the Selling Acquired Fund in accordance with its terms, subject except as to enforcement to such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, fraudulent conveyance, moratorium and or other laws of general application relating to or affecting the enforcement of creditors' rights generally and remedies, as from time to general time in effect, (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity principlesor at law) and (iii) principles of course of dealing or course of performance and standards of good faith, fair dealing, materiality and reasonableness that may be applied by a court to the exercise of rights and remedies.
c) All issued and outstanding shares of the Acquired Fund are duly authorized and validly issued and outstanding and fully paid and non-assessable (cexcept as disclosed in the FBR Trust's then current prospectus and statement of additional information).
d) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will notnot (a) materially violate the FBR Trust's Trust Instrument or By-laws or any provision of any agreement known to Counsel, to which the FBR Trust (with respect to the Acquired Fund) is a party or by which it is bound or (b) to the knowledge of Counsel, result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, judgment, or decree known to Counsel to which the FBR Trust (with respect to the Acquired Fund) is a violation party or by which it (with respect to the Acquired Fund) is bound.
e) To the knowledge of Counsel, no consent, approval, authorization or order of any Delaware or Federal Court or governmental authority of the Selling Trust's trust instrument (assuming shareholder approval State of Delaware or the United States of America is required for the consummation by the FBR Trust on behalf of the Acquired Fund, of the transactions contemplated by this Agreement, except such as may be required under the 1933 Act, the 1934 Act and the 1940 Act.
f) The FBR Trust is registered with the XXX xx an investment company, and to the knowledge of Counsel, no order has been obtainedissued or proceeding instituted to suspend such registration.
g) To the knowledge of Counsel, (a) no litigation, administrative proceeding, or investigation of or before any court or governmental body is pending or threatened as to the FBR Trust (with respect to the Acquired Fund) or bylawsany of its properties or assets attributable or allocable to the Acquired Fund and (b) the FBR Trust (with respect to 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 that materially and adversely affects the Acquired Fund's business. In rendering such opinion, Counsel may (i) rely, as to matters governed by the laws of the State of Delaware, on an opinion of competent Delaware counsel, (ii) make assumptions regarding the authenticity, genuineness, and/or conformity of documents and copies thereof without independent verification thereof, and other customary assumptions as the parties may agree, (iii) limit such opinion to applicable federal and state law, (iv) define the word "knowledge" and related terms to mean the knowledge of attorneys then with such firm who have devoted substantive attention to matters directly related to this Agreement and the Reorganization; and (v) rely on certificates of officers or trustees of the FBR Trust, in each case reasonably acceptable to the FBR Trust.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (MTB Group of Funds)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Trust and the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice ’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's ’s assets and liabilities, together with a list of the Selling Fund's ’s portfolio securities showing the tax costs basis of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman & Kammholzfrom Xxxxxx Price P.C., dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering Fund substantially to the following pointseffect that:
(a) The Selling Fund is a legally designated, separate series of the Selling Trust, and the Selling Trust is a statutory trust validly existing under the laws of the State of Delaware, which, to such counsel’s knowledge, has the power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Selling Trust is registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration under the 1940 Act is in full force and effect.
(c) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Selling Fund of the transactions contemplated herein, except as have been obtained.
(d) The execution and delivery of this Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Selling Trust’s Amended and Restated Declaration of Trust (assuming approval of Selling Fund shareholders has been obtained) or By-Laws.
(e) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(c) The execution . Such opinions shall be based on customary assumptions and delivery such representations as Xxxxxx Price P.C. may reasonably request of this Agreement do notthe Funds, and the consummation Selling Fund and the Acquiring Fund will cooperate to make and certify the accuracy of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylawssuch representations.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Financial Investors Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund Entity, on behalf of the Acquiring Fund, to consummate the transactions provided for herein Reorganization of the Acquiring Fund shall be subject, at its the Acquiring Entity’s election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject following conditions with respect to the following conditionsAcquiring Fund:
7.1 All representations, covenants representations and warranties of the Selling Fund Acquired Entity, on behalf of the Acquired Fund, contained in this Agreement shall be true and correct in all material respects as of the date hereof and and, except as they may be affected by the transactions contemplated by this Agreement, as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. .
7.2 The Selling Fund Acquired Entity, on behalf of the Acquired Fund, shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Acquired Entity, on behalf of the Acquired Fund, on or before the Closing Date.
7.3 The Acquired Entity, on behalf of the Acquired Fund, shall have delivered to the Acquiring Entity, on behalf of the Acquiring Fund, a Statement of Assets and Liabilities of the Acquired Fund on as of the Closing Date Date, including a schedule of investments, certified by the Treasurer of the Acquired Entity on behalf of the Acquired Fund. The Acquired Entity, on behalf of the Acquired Fund, shall have executed and delivered all such assignments and other instruments of transfer as the Acquiring Entity may reasonably deem necessary or desirable in order to vest in and confirm (a) the Acquired Fund’s title to and possession of the Acquiring Fund Shares to be delivered hereunder and (b) the Acquiring Fund’s title to and possession of all the Assets and to otherwise to carry out the intent and purpose of this Agreement.
7.4 The Acquired Entity, on behalf of the Acquired Fund, shall have delivered to the Acquiring Entity a certificate executed in the Selling name of the Acquired Entity, on behalf of the Acquired Fund's name , by the Selling Trust's Acquired Entity’s President or Vice President and the its Treasurer or Assistant Treasurer, in a form and substance reasonably satisfactory to the Acquiring Fund Entity and dated as of the Closing Date, as to such effect the matters set forth in paragraphs 7.1 and 7.2 and as to such other matters as the Acquiring Fund Entity shall reasonably request.
7.2 7.5 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilitiesAcquired Entity, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman & Kammholz, dated as of the Closing Date, in a form reasonablx xxxxxfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust is a statutory trust validly existing under the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund andAcquired Fund, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust Entity, on behalf of the Acquiring Fund, is a valid shall have agreed on the number of full and binding obligation of fractional Acquiring Fund Shares to be issued by the Selling Trust on behalf of Acquiring Fund in connection with the Selling Fund enforceable against the Selling Fund Reorganization after such number has been calculated in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principlesparagraph 1.1.
(c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylaws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Transamerica Funds)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its their election, to the performance by the Selling Transferring Fund of all the obligations to be performed by the Selling Transferring Fund pursuant to this Agreement Agreement, on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Transferring Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Transferring Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Transferring Fund's name by the Selling PMP Trust's President or Vice President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Transferring Fund shall have delivered to the Acquiring Fund a statement of the Selling Transferring Fund's assets and liabilities, together with a list of the Selling Transferring Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling PMP Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of VedderPaul, PriceHastings, Kaufman Janofsky & KammholzWalker, LLP, counsel to the Transferring Fund, dated as of the Closing Date, in txx Xxxxxng Xxxx xn a form reasonablx xxxxxfactory satisfactory to the Acquiring Fund, Fund covering the following points:
(a) The Selling Trust Transferring Fund is a statutory separate investment series of a Massachusetts business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Transferring Fund is a separate investment series of a Massachusetts business trust registered as an investment company under the 1940 Act, and, to such counsel's knowledge, such registration with the Commission is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling PMP Trust on behalf of the Selling Transferring Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, Fund is a valid and binding obligation of the Selling Trust on behalf of the Selling Transferring Fund enforceable against the Selling Transferring Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(cd) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required for consummation by the Transferring Fund of the transactions contemplated herein, except as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and as may be required under state securities laws or where the failure to obtain such consent, approval, order, or authorization would not have a material adverse affect on the operations of the PMP Trust or the Transferring Fund.
(e) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling PMP Trust's trust instrument Declaration of Trust or By-laws, or any provision of any material agreement, indenture, instrument, contract, lease or other undertaking (assuming shareholder approval in each case known to such counsel) to which the Transferring Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Transferring Fund is a party or by which it is bound.
(f) The descriptions in the Prospectus/Proxy Statement of statutes, legal and government proceedings and material contracts, if any (only insofar as they relate to the Transferring Fund), are accurate and fairly present the information required to be shown.
(g) Such counsel does not know of any legal or governmental proceedings (insofar as they relate to the Transferring Fund) existing on or before the date of mailing of the Prospectus/Proxy Statement and the Closing Date, which are required to be described in the Prospectus/Proxy Statement or to be filed as an exhibit to the Registration Statement which are not described or filed as required.
(h) To the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Transferring Fund or any of its respective properties or assets. To the knowledge of such counsel, the Transferring 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 the Transferring Fund's business other than as previously disclosed in the Prospectus/Proxy Statement.
(i) Assuming that a consideration of not less than the net asset value of Transferring Fund shares has been obtained) paid, and assuming that such shares were issued in accordance with the terms of the Transferring Fund's registration statement, or bylawsany amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Transferring Fund are legally issued and fully paid and non-assessable. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Transferring Fund at which the contents of the Prospectus/Proxy Statement and related matters were discussed. Although such counsel are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus/Proxy Statement (except to the extent indicated in their opinion at paragraph (f), above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the PMP Trust's officers and other representatives of the Transferring Fund), no facts have come to their attention that lead them to believe that the Prospectus/Proxy Statement as of its date, as of the date of the Transferring Fund Shareholders' meeting, and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein regarding the Transferring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Transferring Fund not misleading. Such opinion may state that such counsel do not express any opinion or belief as to the financial statements or any financial or statistical data, or as to the information relating to the Acquiring Fund contained in the Prospectus/Proxy Statement or Registration Statement, and that such opinion is solely for the benefit of the Trust and the Acquiring Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Paul, Hastings, Janofsky & Walker LLP appropriate to render the opinions expressed herexx. Ix xxxx paragraph 7.3, references to the Prospectus/Proxy Statement include and relate to only the text of such Prospectus/Proxy Statement and not to any exhibits or attachments thereto or to any documents incorporated by reference therein.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The , and the Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Trust's President or Vice President and the Treasurer or Assistant TreasurerPresident, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling Trust.
7.3 The With respect to the Acquiring Fund Fund, the Trust shall have received on the Closing Date an opinion of VedderSullivan & Worcester LLP, Price, Kaufman & Kammholz, dated as of counsel to the Closing DateSelling Fund, in a form reasonablx xxxxxfactory reasxxxxxx satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust Fund is a statutory separate investment series of the Trust, a business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts and has the trust power to own all of its properties and assets and, to the knowledge of such counsel, to carry on its business as presently conducted.
(b) The Selling Fund is a separate investment series of a Massachusetts business trust registered as an investment company under the 1940 Act, and, to such counsel's knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(cd) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required for consummation by the Selling Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act and the 1940 Act, and as may be required under state securities laws.
(e) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument Declaration of Trust or By-laws, or a material provision of any material agreement, indenture, instrument, contract, lease or other undertaking (assuming shareholder approval in each case known to such counsel) to which the Selling Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Selling Fund is a party or by which it is bound.
(f) Only insofar as they relate to the Selling Fund, the descriptions in the Prospectus/Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly represent the information required to be shown.
(g) Such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Selling Fund existing on or before the effective date of the Registration Statement or the Closing Date, required to be described in the Registration Statement or to be filed as exhibits to the Registration Statement which are not described or filed as required.
(h) To the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Selling Fund or any of its respective properties or assets and the Selling Fund is not a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Prospectus/Proxy Statement.
(i) Assuming that a consideration therefor of not less than the net asset value thereof has been obtained) paid, and assuming that such shares were issued in accordance with the terms of the Selling Fund's registration statement, or bylawsany amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Selling Fund are legally issued and fully paid and non-assessable. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester LLP appropriate to render the opinions expressed txxxxxx.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Markman Multifund Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund Fund, of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and and, except as they may be affected by the transactions contemplated by this Agreement, as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. .
7.2 The Selling Fund shall have delivered to the Acquiring Fund on at the Closing Date a certificate executed in the Selling Fund's name by the Selling Trust's President or Vice of its President and the Treasurer or Assistant its Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such the effect that the representations and warranties of the Selling 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 as to such other matters as the Acquiring Fund Trust shall reasonably request.
7.2 7.3 The Selling Fund shall have delivered to the Acquiring Fund Fund, a statement of the Selling Fund's assets Fund Assets and its liabilities, together with a list of the Selling Fund's portfolio securities and other assets showing the tax costs of such securities by lot respective adjusted bases and the holding periods of such securitiesthereof for income tax purposes, as of the Closing Date, certified by the Treasurer of the Selling TrustFund.
7.3 7.4 The Acquiring Selling Fund shall have received on delivered to the Trust within three business days after the Closing a letter from PricewaterhouseCoopers LLP dated as of the Closing Date an stating that (a) such firm has performed a limited review of the Federal and state income tax returns of the Selling Fund for each of the last three taxable years and, based on such limited review, nothing came to their attention that caused them to believe that such returns did not properly reflect, in all material respects, the Federal and state income tax liabilities of the Selling Fund for the periods covered thereby, (b) for the period from January 1, 2002 to and including the Closing Date, such firm has performed a limited review (based on unaudited financial data) to ascertain the amount of applicable Federal, state and local taxes and has determined that same either have been paid or reserves have been established for payment of such taxes, and, based on such limited review, nothing came to their attention that caused them to believe that the taxes paid or reserves set aside for payment of such taxes were not adequate in all material respects for the satisfaction of all Federal, state and local tax liabilities for the period from January 1, 2002 to and including the Closing Date and (c) based on such limited reviews, nothing came to their attention that caused them to believe that the Selling Fund would not qualify as a regulated investment company for Federal income tax purposes for any such year or period.
7.5 The Trust shall have received at the Closing a favorable opinion of Vedderfrom Xxxxxx, PriceXxxxx & Bockius LLP, Kaufman & Kammholzcounsel to the Selling Fund, dated as of the Closing Date, in a form reasonablx xxxxxfactory Date to the Acquiring Fund, covering the following pointseffect that:
(a) The Selling Trust Fund is a statutory trust validly existing under Maryland corporation and has the laws power to own all of the State of Delaware.its properties and assets and to carry on its business as presently conducted;
(b) This the Selling Fund is a duly registered, open-end, management investment company under the 1940 Act, and its registration with the Commission as an investment company under the 1940 Act is in full force and effect;
(c) this Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund Fund, and, assuming that the Registration Statement complies with the 1933 Act, the 1934 Act and the 1940 Act and the regulations thereunder and assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.;
(cd) The the execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation violate the Selling Fund's Articles of Incorporation or By-Laws; and
(e) to the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or any state is required for the consummation by the Selling TrustFund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities laws.
7.6 On the Closing Date, the Selling Fund Assets shall include no assets that the Acquiring Fund, by reason of limitations of the Acquiring Fund's trust instrument (assuming shareholder approval has been obtained) Declaration of Trust or bylawsotherwise, may not properly acquire.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Scudder Rreef Securities Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants representations and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The , and the Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling Trust's President or Vice President and the Treasurer or Assistant TreasurerPresident, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling Trust.
7.3 The With respect to the Acquiring Fund Fund, the Trust shall have received on the Closing Date an opinion of VedderSxxxxxxx & Worcester LLP, Price, Kaufman & Kammholz, dated as of special counsel to the Closing DateTrust and the Selling Fund, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering the following points:
(a) The Selling Trust Fund is a statutory separate investment series of the Trust, a business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts and has the trust power to own all of its properties and assets and, to the knowledge of such counsel, to carry on its business as presently conducted.
(b) The Selling Fund is a separate investment series of a Massachusetts business trust registered as an investment company under the 1940 Act, and, to such counsel's knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution execution, and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, reorganization, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(cd) Assuming that a consideration therefore of not less than the net asset value thereof has been paid, and assuming that such shares were issued in accordance with the terms of the Selling Fund's registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Selling Fund are legally issued and fully paid and non-assessable.
(e) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument Declaration of Trust or By-laws, or a material provision of any material agreement, indenture, instrument, contract, lease or other undertaking (assuming shareholder approval has in each case known to such counsel) to which the Selling Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Selling Fund is a party or by which it is bound.
(f) Only insofar as they relate to the Selling Fund, the descriptions in the Prospectus/Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly represent the information required to be shown.
(g) In the ordinary course of such counsel's representation of the Selling Fund and without having made any investigation, such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Selling Fund existing on or before the effective date of the Registration Statement or the Closing Date, required to be described in the Registration Statement or to be filed as exhibits to the Registration Statement which are not described or filed as required.
(h) In the ordinary course of such counsel's representation of the Selling Fund and without having made any investigation, and except as otherwise disclosed, to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Selling Fund or any of its respective properties or assets and the Selling Fund is not a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Prospectus/Proxy Statement.
(i) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required for consummation by the Selling Fund of the transactions contemplated herein, except such as have been obtained) or bylawsobtained under the 1933 Act, 1934 Act and the 1940 Act, and as may be required under state securities laws. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sxxxxxxx & Worcester LLP appropriate to render the opinions expressed therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its their election, to the performance by the Selling Transferring Fund of all the obligations to be performed by the Selling Transferring Fund pursuant to this Agreement Agreement, on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Transferring Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Transferring Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Transferring Fund's name by the Selling PMP Trust's President or Vice President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Transferring Fund shall have delivered to the Acquiring Fund a statement of the Selling Transferring Fund's assets and liabilities, together with a list of the Selling Transferring Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling PMP Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of VedderPaul, PriceHastings, Kaufman Janofsky & KammholzWalker, LLP, counsel to the Transferring Fund, dated as of the Closing Date, in txx Xxxxxng Xxxx xn a form reasonablx xxxxxfactory satisfactory to the Acquiring Fund, Fund covering the following points:
(a) The Selling Trust Transferring Fund is a statutory separate investment series of a Massachusetts business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Transferring Fund is a separate investment series of a Massachusetts business trust registered as an investment company under the 1940 Act, and, to such counsel's knowledge, such registration with the Commission is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by the Selling PMP Trust on behalf of the Selling Transferring Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, Fund is a valid and binding obligation of the Selling Trust on behalf of the Selling Transferring Fund enforceable against the Selling Transferring Fund in accordance with its terms, subject as to enforcement enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(cd) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the Commonwealth of Massachusetts is required for consummation by the Transferring Fund of the transactions contemplated herein, except as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and as may be required under state securities laws or where the failure to obtain such consent, approval, order, or authorization would not have a material adverse affect on the operations of the PMP Trust or the Transferring Fund.
(e) The execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling PMP Trust's trust instrument Declaration of Trust or By-laws, or any provision of any material agreement, indenture, instrument, contract, lease or other undertaking (assuming shareholder approval in each case known to such counsel) to which the Transferring Fund is a party or by which it or any of its properties may be bound or, to the EXHIBIT A knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Transferring Fund is a party or by which it is bound.
(f) The descriptions in the Prospectus/Proxy Statement of statutes, legal and government proceedings and material contracts, if any (only insofar as they relate to the Transferring Fund), are accurate and fairly present the information required to be shown.
(g) Such counsel does not know of any legal or governmental proceedings (insofar as they relate to the Transferring Fund) existing on or before the date of mailing of the Prospectus/Proxy Statement and the Closing Date, which are required to be described in the Prospectus/Proxy Statement or to be filed as an exhibit to the Registration Statement which are not described or filed as required.
(h) To the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Transferring Fund or any of its respective properties or assets. To the knowledge of such counsel, the Transferring 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 the Transferring Fund's business other than as previously disclosed in the Prospectus/Proxy Statement.
(i) Assuming that a consideration of not less than the net asset value of Transferring Fund shares has been obtained) paid, and assuming that such shares were issued in accordance with the terms of the Transferring Fund's registration statement, or bylawsany amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Transferring Fund are legally issued and fully paid and non-assessable. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Transferring Fund at which the contents of the Prospectus/Proxy Statement and related matters were discussed. Although such counsel are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus/Proxy Statement (except to the extent indicated in their opinion at paragraph (f), above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the PMP Trust's officers and other representatives of the Transferring Fund), no facts have come to their attention that lead them to believe that the Prospectus/Proxy Statement as of its date, as of the date of the Transferring Fund Shareholders' meeting, and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein regarding the Transferring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Transferring Fund not misleading. Such opinion may state that such counsel do not express any opinion or belief as to the financial statements or any financial or statistical data, or as to the information relating to the Acquiring Fund contained in the Prospectus/Proxy Statement or EXHIBIT A Registration Statement, and that such opinion is solely for the benefit of the Trust and the Acquiring Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Paul, Hastings, Janofsky & Walker LLP appropriate to render the opinions expressed herexx. Ix xxxx paragraph 7.3, references to the Prospectus/Proxy Statement include and relate to only the text of such Prospectus/Proxy Statement and not to any exhibits or attachments thereto or to any documents incorporated by reference therein.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 VII.1 All representations, covenants covenants, and warranties of the each Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Each Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice Fund’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The VII.2 Each Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's ’s assets and liabilities, together with a list of the Selling Fund's ’s portfolio securities showing the tax costs basis of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling TrustFund.
7.3 VII.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman & Kammholzfrom Arent Fox LLP, dated as of the Closing Date, with respect to each Selling Fund, substantially in a the form reasonablx xxxxxfactory of Schedule C. Such opinion shall be based on customary assumptions and such representations as Arent Fox LLP may reasonably request of the Funds, and the Selling Funds and the Acquiring Fund will cooperate to make and certify the accuracy of such representations.
VII.4 As of the Closing Date, the assets of the Selling Funds to be acquired by the Acquiring Fund will include no assets which the Acquiring Fund identifies to the particular Selling Fund as being unsuitable for the Acquiring Fund to acquire by reason of limitations in the Acquiring Fund’s Articles of Incorporation or Bylaws, covering or of investment restrictions disclosed in the following points:
(a) The Selling Trust is a statutory trust validly existing under the laws of the State of DelawareRegistration Statement.
(b) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylaws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Boulder Growth & Income Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Acquired Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Acquired Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Acquired Fund's ’s name by the Selling Trust's President or Vice Acquired Fund’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Acquired Fund shall have delivered to the Acquiring Fund a statement of the Selling Acquired Fund's ’s assets and liabilities, together with a list of the Selling Acquired Fund's ’s portfolio securities showing the tax costs basis of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling TrustAcquired Fund.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedder, Price, Kaufman from Xxxxxxxx & KammholzWorcester LLP, dated as of the Closing Date, with respect to the Acquired Fund, substantially in a the form reasonablx xxxxxfactory of Schedule C. Such opinion shall be based on customary assumptions and such representations as Xxxxxxxx & Worcester LLP may reasonably request of the Funds, and the Acquired Fund and the Acquiring Fund will cooperate to make and certify the accuracy of such representations.
7.4 As of the Closing Date, the assets of the Acquired Fund to be acquired by the Acquiring Fund will include no assets which the Acquiring Fund identifies to the Acquired Fund as being unsuitable for the Acquiring Fund to acquire by reason of limitations in the Acquiring Fund’s Declaration of Trust or Bylaws, covering or of investment restrictions disclosed in the following points:
(a) The Selling Trust is a statutory trust validly existing under the laws of the State of DelawareRegistration Statement.
(b) This Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
(c) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling Trust's trust instrument (assuming shareholder approval has been obtained) or bylaws.
Appears in 1 contract
Samples: Reorganization Agreement (Madison Covered Call & Equity Strategy Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate complete the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement it hereunder on or before the Closing Date and, in additionaddition thereto, shall be subject to the following conditions:
7.1 All representations, covenants and warranties of the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, Date with the same force and effect as if made on and as of the Closing Date. The , and the Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's its name by the Selling FFB Trust's President or Vice President and the its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and and, dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.;
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's assets and liabilities, together with a list of the Selling Fund's portfolio securities showing the tax costs of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer of the Selling FFB Trust.; and
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of VedderMorgan, Price, Kaufman Lewis & Kammholz, dated as of Bockius counsel to the Closing DateSelling Fund, in a form reasonablx xxxxxfactory satisfactory to the Acquiring Fund, Fund covering the following xxx xxxxxxxxx points:
(a) The the Selling Trust Fund is a statutory separate investment series of a Massachusetts business trust duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.
Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted; (b) This this Agreement has been duly authorized, executed and delivered by the Selling Trust on behalf of Fund, and, assuming that the Selling Fund Prospectus and Proxy Statement, and Registration Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equity principles.
; (c) The the execution and delivery of this Agreement do did not, and the consummation of the transactions contemplated hereby will not, result in a violation of the Selling FFB Trust's Declaration of Trust or By-laws, or any provision of any material agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel) to which the Selling Fund is a party or by which it or any of its properties may be bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty, under any agreement, judgment, or decree to which the Selling 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 of the United States or the Commonwealth of Massachusetts is required for the consummation by the Selling Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities laws; (e) only insofar as they relate to the Selling Fund, the descriptions in the Prospectus and Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly present the information required to be shown; (f) such counsel does not know of any legal or governmental proceedings, only insofar as they relate to the Selling Fund existing on or before the date of mailing of the Prospectus and Proxy Statement and the Closing Date, required to be described in the Prospectus and Proxy Statement or to be filed as an exhibit to the Registration Statement which are not described or filed as required; (g) the Selling Fund is a separate investment series of a Massachusetts business trust instrument registered as an investment company under the 1940 Act and to such counsel's best knowledge, such registration with the Commission as an investment company under the 1940 Act is in full force and effect; (h) to the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the Selling Fund or any of its respective properties or assets and the Selling Fund is neither a party to nor subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business other than as previously disclosed in the Prospectus and Proxy Statement; (i) assuming shareholder approval that a consideration therefor not less than the net asset value thereof has been obtainedpaid, and assuming that such shares were issued in accordance with the terms of the Selling Fund's registration statement, or any amendment thereto, in effect at the time of such issuance, all issued and outstanding shares of the Selling Fund are legally issued and fully paid and non-assessable (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). Such counsel shall also state that they have participated in conferences with officers and other representatives of the Selling Fund at which the contents of the Prospectus and Proxy Statement and related matters were discussed and, although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus and Proxy Statement (except to the extent indicated in paragraph (e) of their above opinion ), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the FFB Trust's officers and other representatives of the Selling Fund), no facts have come to their attention that lead them to believe that the Prospectus and Proxy Statement as of its date, as of the date of the Selling Fund Shareholders' meeting, and as of the Closing Date, contained an untrue statement of a material fact or bylawsomitted to state a material fact required to be stated therein regarding the Selling Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Selling Fund not misleading. Such opinion may state that such counsel does not express any opinion or belief as to the financial statements or any financial or statistical data, or as to the information relating to the Acquiring Fund, contained in the Prospectus and Proxy Statement or Registration Statement, and that such opinion is solely for the benefit of the Evergreen Trust and the Acquiring Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Morgan, Lewis & Bockius appropriate to render the opinions expressed therein and shall indicate, with respexx xx xxxxxxx of Xxxxxxhusetts law, that as Morgan, Lewis & Bockius are not admitted to the bar of Massachusetts, such opinions are based either upon txx xxxxxx xx published statutes, case cases and rules and regulations of the Commonwealth of Massachusetts or upon an opinion of Massachusetts counsel. In this paragraph 7.3, references to Prospectus and Proxy Statement include and relate to only the text of such Prospectus and Proxy Statement and not to any exhibits or attachments thereto or to any documents incorporated by reference therein.
7.4 The merger between First Union Corporation and First Fidelity Bancorporation shall be completed prior to the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Selling Fund of all the obligations to be performed by the Selling Fund pursuant to this Agreement on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All representations, covenants covenants, and warranties of the Selling Corporation and the Selling Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date. The Selling Fund shall have delivered to the Acquiring Fund on the Closing Date a certificate executed in the Selling Fund's ’s name by the Selling Trust's President or Vice Corporation’s President and the Treasurer or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a statement of the Selling Fund's ’s assets and liabilities, together with a list of the Selling Fund's ’s portfolio securities showing the tax costs basis of such securities by lot and the holding periods of such securities, as of the Closing Date, certified by the Treasurer or Assistant Treasurer of the Selling TrustCorporation.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion of Vedderfrom Xxxxxxx & Xxxx, Price, Kaufman & KammholzS.C., dated as of the Closing Date, in a form reasonablx xxxxxfactory reasonably satisfactory to the Acquiring Fund, covering Fund substantially to the following pointseffect that:
(a) The Selling Trust Fund is a statutory trust validly legally designated, separate series of the Selling Corporation, and the Selling Corporation is a corporation existing under the laws of the State of DelawareWisconsin, which, to such counsel’s knowledge, has the power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Selling Corporation is registered as an investment company under the 1940 Act, and, to such counsel’s knowledge, such registration under the 1940 Act is in full force and effect.
(c) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Delaware is required for consummation by the Selling Fund of the transactions contemplated herein, except as have been obtained.
(d) The execution and delivery of this Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Selling Corporation’s Amended and Restated Articles of Incorporation (assuming approval of Selling Fund shareholders has been obtained) or its Bylaws.
(e) This Agreement has been duly authorized, executed and delivered by the Selling Trust Corporation on behalf of the Selling Fund and, assuming due authorization, execution and delivery of this Agreement by the Acquiring Trust on behalf of the Acquiring Fund, is a valid and binding obligation of the Selling Trust Corporation on behalf of the Selling Fund enforceable against the Selling Fund in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and to general equity principles.
(c) The execution . Such opinion shall be based on customary assumptions and delivery such representations as Xxxxxxx & Xxxx, S.C. may reasonably request of this Agreement do notthe Funds, and the consummation Selling Fund and the Acquiring Fund will cooperate to make and certify the accuracy of such representations.
7.4 As of the transactions contemplated hereby will notClosing Date, result in a violation the assets of the Selling Fund to be acquired by the Acquiring Fund will include no assets which the Acquiring Fund has identified to the Selling Fund at least two (2) business days prior to Closing as being unsuitable for the Acquiring Fund to acquire by reason of limitations in the Acquiring Trust's ’s trust instrument (assuming shareholder approval has been obtained) or bylaws, or of investment restrictions disclosed in the Registration Statement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Financial Investors Trust)