CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the Closing, and, in addition thereto, the satisfaction or waiver of the following further conditions: 6.1 The Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf by the Acquiring Trust’s President or any Vice President and its Treasurer, in form and substance satisfactory to the Selling Fund and dated as of the Closing Date, to the effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date. 6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement. 6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund. 6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations. 6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect. 6.6 The Selling Fund shall have received on the Closing Date an opinion from Ropes & Gray LLP, counsel to the Acquiring Fund, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in form and substance reasonably satisfactory to the Selling Fund, to the following effect: (a) The Acquiring Trust is duly organized and validly existing under the laws of The Commonwealth of Massachusetts and has power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents; (b) This Agreement has been duly authorized, executed, and delivered on behalf of the Acquiring Fund and, assuming the Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws and assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and other equitable principles; (c) The Merger Shares to be delivered to the Selling Fund’s shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, fully paid and non-assessable shares in the Acquiring Fund, and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase in respect thereof; (d) The execution and delivery of this Agreement did not, and the performance by the Acquiring Fund of its obligations hereunder will not, violate the Acquiring Trust Organizational Documents or any provision of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters; (e) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement 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 or blue sky laws and the H-S-R Act; (f) Such counsel does not know of any legal or governmental proceedings relating to the Acquiring Fund existing on or before the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to be described in the Registration Statement which are not described as required; (g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and (h) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Massmutual Select Funds), Agreement and Plan of Reorganization (Massmutual Premier Funds)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations, covenants and warranties of the Acquiring Trust Fund contained in this Agreement shall be true and correct 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Evergreen Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except to such other matters as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.shall reasonably request; and
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 6.2 The Selling Fund shall have received on the Closing Date an opinion from Ropes Sullivan & Gray LLPWorcester, counsel to the Acquiring Fund, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory to satisfxxxxxx xo the Selling Fund, to covering the following effectpoints:
(a) The the Acquiring Trust Fund is a separate investment series of a Massachusetts business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;
; (b) This this Agreement has been duly authorized, executed, executed and delivered on behalf of by the Acquiring Fund Fund, and, assuming that the Prospectus and Proxy Statement, and Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;
; (c) The Merger assuming that a consideration therefor not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in (except that, under Massachusetts law, shareholders of the Acquiring Fund could, under certain circumstances, be held personally liable for obligations of the Acquiring Fund), and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase rights in respect thereof;
; (d) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Evergreen Trust's Declaration of Trust Organizational Documents or By- Laws or any provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is or any of its properties may be bound or, or to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty penalty, under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
; (e) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act Act, and such as may be required under state securities or blue sky laws and the H-S-R Act;
laws; (f) Such only insofar as they relate to the Acquiring 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; (g) such counsel does not know of any legal or governmental proceedings relating proceedings, only insofar as they relate to the Acquiring Fund Fund, existing on or before the effective date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 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;
; (gh) The the Acquiring Trust 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 best knowledge, such registration with the Commission as an investment company under the 1940 ActAct is in full force and effect; and
and (hi) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the effectiveness thereof has been issuedAcquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement. In addition, such counsel shall also state that they have participated in conferences with officers and other representatives of the Acquiring 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 (f) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the Evergreen Trust's officers and other representatives of the Acquiring 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 omitted to state a material fact required to be stated therein regarding the Acquiring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Acquiring 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 Selling Fund, contained in the Prospectus and Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the FFB Trust and the Selling Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester appropriate to render the opinions expressed therein.
6.3 The merger between First Union Corporation and First Fidelity Corporation Bancorporation shall be completed prior to the Closing Date. ARTICLE VII
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations, covenants and warranties of the Acquiring Trust Fund contained in this Agreement shall be true and correct 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Evergreen Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except to such other matters as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.shall reasonably request; and
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 6.2 The Selling Fund shall have received on the Closing Date an opinion from Ropes Sullivan & Gray LLPWorcester, counsel to the Acquiring Fund, dated as of the Closing xxx Xxxxing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory to the Selling Fund, to covering the following effectpoints:
(a) The the Acquiring Trust Fund is a separate investment series of a Massachusetts business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;
; (b) This this Agreement has been duly authorized, executed, executed and delivered on behalf of by the Acquiring Fund Fund, and, assuming that the Prospectus and Proxy Statement, and Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;
; (c) The Merger assuming that a consideration therefor not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in (except that, under Massachusetts law, shareholders of the Acquiring Fund could, under certain circumstances, be held personally liable for obligations of the Acquiring Fund), and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase rights in respect thereof;
; (d) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Evergreen Trust's Declaration of Trust Organizational Documents or By- Laws or any provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is or any of its properties may be bound or, or to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty penalty, under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
; (e) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act Act, and such as may be required under state securities or blue sky laws and the H-S-R Act;
laws; (f) Such only insofar as they relate to the Acquiring 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; (g) such counsel does not know of any legal or governmental proceedings relating proceedings, only insofar as they relate to the Acquiring Fund Fund, existing on or before the effective date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 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;
; (gh) The the Acquiring Trust 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 best knowledge, such registration with the Commission as an investment company under the 1940 ActAct is in full force and effect; and
and (hi) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the effectiveness thereof has been issuedAcquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement. In addition, such counsel shall also state that they have participated in conferences with officers and other representatives of the Acquiring 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 (f) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the Evergreen Trust's officers and other representatives of the Acquiring 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 omitted to state a material fact required to be stated therein regarding the Acquiring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Acquiring 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 Selling Fund, contained in the Prospectus and Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the FFB Trust and the Selling Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester appropriate to render the opinions expressed xxxxxxx.
6.3 The merger between First Union Corporation and First Fidelity Corporation Bancorporation shall be completed prior to the Closing Date. ARTICLE VII
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Municipal Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations, covenants and warranties of the Acquiring Trust Fund contained in this Agreement shall be true and correct 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Trust’s Evergreen Trust"s President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except to such other matters as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.shall reasonably request; and
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 6.2 The Selling Fund shall have received on the Closing Date an opinion from Ropes Sullivan & Gray LLPWorcester, counsel to the Acquiring Fund, dated as of the Closing thx Xxxxxxg Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory to the Selling Fund, to covering the following effectpoints:
(a) The the Acquiring Trust Fund is a separate investment series of a Massachusetts business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;
; (b) This this Agreement has been duly authorized, executed, executed and delivered on behalf of by the Acquiring Fund Fund, and, assuming that the Prospectus and Proxy Statement, and Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;
; (c) The Merger assuming that a consideration therefor not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in (except that, under Massachusetts law, shareholders of the Acquiring Fund could, under certain circumstances, be held personally liable for obligations of the Acquiring Fund), and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase rights in respect thereof;
; (d) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Evergreen Trust's Declaration of Trust Organizational Documents or By- Laws or any provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is or any of its properties may be bound or, or to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty penalty, under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
; (e) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act Act, and such as may be required under state securities or blue sky laws and the H-S-R Act;
laws; (f) Such only insofar as they relate to the Acquiring 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; (g) such counsel does not know of any legal or governmental proceedings relating proceedings, only insofar as they relate to the Acquiring Fund Fund, existing on or before the effective date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 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;
; (gh) The the Acquiring Trust 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 best knowledge, such registration with the Commission as an investment company under the 1940 ActAct is in full force and effect; and
and (hi) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the effectiveness thereof Acquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement. In addition, such counsel shall also state that they have participated in conferences with officers and other representatives of the Acquiring 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 (f) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the Evergreen Trust's officers and other representatives of the Acquiring 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 omitted to state a material fact required to be stated therein regarding the Acquiring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Acquiring 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 Selling Fund, contained in the Prospectus and Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the FFB Trust and the Selling Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester appropriate to render the opinions expressed txxxxxx. In this paragraph 6.2, 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.
6.3 The merger between First Union Corporation and First Fidelity Bancorporation has been issuedcompleted prior to the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein under this Agreement shall be subject, at its election, subject to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the Closing, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf by the Acquiring Trust’s President or any Vice President and its Treasurer, in form and substance satisfactory to the Selling Fund and dated as of the Closing Date, to the effect that the (a) All representations and warranties of the Acquiring Fund made contained in this Agreement are shall be true and correct at and in all material respects as of the Closing Datedate of this Agreement and, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.
6.3 All proceedings taken by the Acquiring Fund in connection Effective Time, with the transactions contemplated by this Agreement same force and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities effect as of the Closing Date, certified if made on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operationsEffective Time.
6.5 (b) The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund shall have received on the Closing Date an opinion from Ropes of Morgan, Lewis & Gray Bockius LLP, counsel to both Funds, regarding the Acquiring Fundxxxxxxxxxxx, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in form and substance ix x xxxm reasonably satisfactory to the Selling Fund, and dated as of the Effective Time, to the following effecteffect that:
(a1) The the Acquiring Trust is a statutory trust duly organized and organized, validly existing and in good standing under the laws of The Commonwealth the State of Massachusetts and has power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational DocumentsDelaware;
(b2) This Agreement has been duly authorized, executed, and delivered on behalf the shares of the Acquiring Fund andissued and outstanding at the Effective Time are legally issued, assuming fully paid and non-assessable under the Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws and assuming of the due authorization, execution and delivery State of this Agreement Delaware by the Selling FundAcquiring Trust, is the valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and other equitable principles;
(c) The Merger Shares to be delivered to the Selling Fund’s shareholders , as provided for by this Agreement Agreement, are duly authorized and upon such delivery pursuant to the terms of this Agreement, will be validly issued and, assuming receipt by the Acquiring Fund of the consideration contemplated herebylegally issued, fully paid and non-assessable shares in under the laws of the State of Delaware by the Acquiring FundTrust, and no shareholder of the Acquiring Fund has any option, warrant or preemptive right of to subscription or purchase in respect thereofthereof based on a review of the Acquiring Trust's Agreement and Declaration of Trust and By-laws and otherwise to such counsel's knowledge;
(d3) The the Board of Trustees of the Acquiring Trust has duly authorized the Acquiring Fund as a class of units of beneficial interest of the Acquiring Trust pursuant to the terms of the Agreement and Declaration of Trust of the Acquiring Trust;
(4) this Agreement has been duly authorized, executed and delivered by the Acquiring Trust and represents a valid and binding contract of the Acquiring Trust, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and transfer, and other similar laws of general applicability related to or affecting creditors' rights and to general equity principles; provided, however, that no opinion need be expressed with respect to provisions of this Agreement relating to indemnification nor with respect to provisions of this Agreement intended to limit liability for particular matters to the Acquiring Fund and its assets;
(5) the execution and delivery of this Agreement did not, and the performance consummation of the transactions contemplated by the Acquiring Fund of its obligations hereunder this Agreement will not, violate the Agreement and Declaration of Trust or Bylaws of the Acquiring Trust Organizational Documents or any provision of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
(e6) To to the knowledge of such counsel, counsel no consent, approval, authorization authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement Agreement, except such as have been obtained under the 1933 Act, state securities laws, the 1934 1940 Act, the rules and the 1940 Act regulatioxx xxxxx xxxxx statutes and such as may be required under state securities or blue sky laws laws, rules and the H-S-R Act;regulations; and
(f7) Such counsel does not know of any legal or governmental proceedings relating to the Acquiring Fund existing on or before the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to be described in the Registration Statement which are not described as required;
(g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and
Act and such registration with the SEC as an investment company under the 1940 Act is in full force and effect. Such opinion: (hi) The shall state that while such counsel have not verified, and are not passing upon and do not assume responsibility for, the accuracy, completeness, or fairness of any portion of the Form N-14 Registration Statement has become effective and, relating to the knowledge Reorganization or any amendment thereof or supplement thereto, they have generally reviewed and discussed certain information included therein with respect to the Acquiring Fund and the Acquiring Trust with certain officers of the Acquiring Trust and that in the course of such counselreview and discussion no facts came to the attention of such counsel which caused them to believe that, no stop order suspending on the effectiveness respective effective or clearance dates of the Form N-14 Registration Statement and any amendment thereof has been issuedor supplement thereto and only insofar as they relate to information with respect to the Acquiring Trust and the Acquiring Fund, the Form N-14 Registration Statement or any amendment thereof or supplement thereto contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) shall state that such counsel does not express any opinion or belief as to the financial statements, other financial data, statistical data, or information relating to the Acquiring Trust or the Acquiring Fund contained or incorporated by reference in the Form N-14 Registration Statement; and (iii) shall state that such opinion is solely for the benefit of the Selling Fund and its Board of Trustees and officers. In giving such opinion, Morgan, Lewis & Bockius LLP may rely upon officers' certificates anx xxxxxxxxxxxx of public officials.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Rydex Series Funds)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder the Acquiring Fund pursuant to this Agreement on or before the Closing, Closing Date and, in addition theretoaddition, the satisfaction or waiver of subject to the following further conditions:
6.1 All representations, covenants and warranties of the Acquiring 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 Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in the Acquiring Fund's name by the Acquiring Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of to such other matters as the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Selling Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Dateshall reasonably request.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund shall have received on the Closing Date an opinion from Ropes of Vedder, Price, Xxxxxxx & Gray LLP, counsel to the Acquiring FundKammholz, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory to the Selling Fund, to covering the following effectpoints:
(a) The Acquiring Trust is duly organized and a business trust validly existing under the laws of The the Commonwealth of Massachusetts and has power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;Massachusetts.
(b) This Agreement has been duly authorized, executed, executed and delivered by the Acquiring Trust on behalf of the Acquiring Fund and, assuming the Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws and assuming the due authorization, execution and delivery of this Agreement by the Selling FundTrust, is the a valid and binding obligation of the Acquiring Trust on behalf of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement to bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;.
(c) The Merger Shares to be delivered to the Selling Fund’s shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, fully paid and non-assessable shares in the Acquiring Fund, and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase in respect thereof;
(d) The execution and delivery of this Agreement did do not, and the performance by the Acquiring Fund of its obligations hereunder will not, violate the Acquiring Trust Organizational Documents or any provision of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
(e) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement except such as have been obtained under the 1933 Actherein will not, the 1934 Act, and the 1940 Act and such as may be required under state securities or blue sky laws and the H-S-R Act;
(f) Such counsel does not know result in a violation of any legal or governmental proceedings relating to the Acquiring Fund existing on Trust's trust instrument or before the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to be described in the Registration Statement which are not described as required;
(g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and
(h) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issuedbylaws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Janus Investment Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations, covenants and warranties of the Acquiring Trust Fund contained in this Agreement shall be true and correct 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Trust’s Fund's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except to such other matters as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.shall reasonably request; and
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 6.2 The Selling Fund shall have received on the Closing Date an opinion from Ropes Sullivan & Gray LLPWorcester, counsel to the Acquiring Fund, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory to the Selling FundSellixx Xxxx, to covering the following effectpoints:
(a) The the Acquiring Trust Fund is a Massachusetts business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;
; (b) This this Agreement has been duly authorized, executed, executed and delivered on behalf of by the Acquiring Fund Fund, and, assuming that the Prospectus and Proxy Statement, and Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;
; (c) The Merger assuming that a consideration therefor not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in (except that, under Massachusetts law, shareholders of the Acquiring Fund could, under certain circumstances, be held personally liable for obligations of the Acquiring Fund), and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase rights in respect thereof;
; (d) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Fund's Declaration of Trust Organizational Documents or By-Laws or any provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is or any of its properties may be bound or, or to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty penalty, under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
; (e) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act Act, and such as may be required under state securities or blue sky laws and the H-S-R Act;
laws; (f) Such only insofar as they relate to the Acquiring 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; (g) such counsel does not know of any legal or governmental proceedings relating proceedings, only insofar as they relate to the Acquiring Fund Fund, existing on or before the effective date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 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;
; (gh) The the Acquiring Trust Fund is 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 ActAct is in full force and effect; and
and (hi) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the effectiveness thereof Acquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement. In addition, such counsel shall also state that they have participated in conferences with officers and other representatives of the Acquiring 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 (f) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the Acquiring Fund's officers and other representatives of the Acquiring 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 omitted to state a material fact required to be stated therein regarding the Acquiring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Acquiring 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 Selling Fund, contained in the Prospectus and Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the FFB Trust and the Selling Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester appropriate to render the opinions expressed therein. In this paragraph 6.2, references to Prospectus and Xxxxx Xtatement 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.
6.3 The merger between First Union Corporation and First Fidelity Bancorporation has been issuedcompleted 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 SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations, covenants and warranties of the Acquiring Trust Fund contained in this Agreement shall be true and correct 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Evergreen Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except to such other matters as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.shall reasonably request; and
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 6.2 The Selling Fund shall have received on the Closing Date an opinion from Ropes Sullivan & Gray LLPWorcester, counsel to the Acquiring Fund, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory satxxxxxxxxy to the Selling Fund, to covering the following effectpoints:
(a) The the Acquiring Trust Fund is a separate investment series of a Massachusetts business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;
; (b) This this Agreement has been duly authorized, executed, executed and delivered on behalf of by the Acquiring Fund Fund, and, assuming that the Prospectus and Proxy Statement, and Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;
; (c) The Merger assuming that a consideration therefor not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in (except that, under Massachusetts law, shareholders of the Acquiring Fund could, under certain circumstances, be held personally liable for obligations of the Acquiring Fund), and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase rights in respect thereof;
; (d) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Evergreen Trust's Declaration of Trust Organizational Documents or By- Laws or any provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is or any of its properties may be bound or, or to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty penalty, under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
; (e) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act Act, and such as may be required under state securities or blue sky laws and the H-S-R Act;
laws; (f) Such only insofar as they relate to the Acquiring 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; (g) such counsel does not know of any legal or governmental proceedings relating proceedings, only insofar as they relate to the Acquiring Fund Fund, existing on or before the effective date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 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;
; (gh) The the Acquiring Trust 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 best knowledge, such registration with the Commission as an investment company under the 1940 ActAct is in full force and effect; and
and (hi) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the effectiveness thereof Acquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement. In addition, such counsel shall also state that they have participated in conferences with officers and other representatives of the Acquiring 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 (f) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the Evergreen Trust's officers and other representatives of the Acquiring 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 omitted to state a material fact required to be stated therein regarding the Acquiring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Acquiring 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 Selling Fund, contained in the Prospectus and Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the FFB Trust and the Selling Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester appropriate to render the opinions expressed therein. In this paragraph 6.2, referexxxx xx 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.
6.3 The merger between First Union Corporation and First Fidelity Bancorporation has been issuedcompleted prior to the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder the Acquiring Fund pursuant to this Agreement on or before the Closing, Closing Date and, in addition theretoaddition, the satisfaction or waiver of subject to the following further conditions:
6.1 All representations, covenants and warranties of the Acquiring 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 Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in the Acquiring Fund's name by the Acquiring Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of to such other matters as the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Selling Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Dateshall reasonably request.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund shall have received on the Closing Date an opinion from Ropes of Vedder, Price, Kaufman & Gray LLP, counsel to the Acquiring FundKammholz, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory reasonablx xxxxxfactory to the Selling Fund, to covering the following effectpoints:
(a) The Acquiring Trust is duly organized and a business trust validly existing under the laws of The the Commonwealth of Massachusetts and has power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;Massachusetts.
(b) This Agreement has been duly authorized, executed, executed and delivered by the Acquiring Trust on behalf of the Acquiring Fund and, assuming the Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws and assuming the due authorization, execution and delivery of this Agreement by the Selling FundTrust, is the a valid and binding obligation of the Acquiring Trust on behalf of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement to bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;.
(c) The Merger Shares to be delivered to the Selling Fund’s shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, fully paid and non-assessable shares in the Acquiring Fund, and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase in respect thereof;
(d) The execution and delivery of this Agreement did do not, and the performance by the Acquiring Fund of its obligations hereunder will not, violate the Acquiring Trust Organizational Documents or any provision of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
(e) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement except such as have been obtained under the 1933 Actherein will not, the 1934 Act, and the 1940 Act and such as may be required under state securities or blue sky laws and the H-S-R Act;
(f) Such counsel does not know result in a violation of any legal or governmental proceedings relating to the Acquiring Fund existing on Trust's trust instrument or before the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to be described in the Registration Statement which are not described as required;
(g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and
(h) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issuedbylaws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Janus Investment Fund)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Trust on behalf of the Acquiring Fund of all the obligations to be performed by it hereunder on or before the Closing, Closing Date and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 All representations and warranties of the Trust contained in this Agreement shall be true and correct in all material respects as of the date hereof 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;
6.2 The Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund Fund, a certificate executed on their behalf by the Acquiring Trust’s President or any Vice of its President and its Treasurer, in a form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the effect that the representations and warranties of the Acquiring Fund Trust made in this Agreement are true and correct at and as of the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that as to such other matters as the Acquiring Selling Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.shall reasonably request;
6.2 6.3 The Acquiring Trust, on behalf of the Acquiring Selling Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund received a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund shall have received on the Closing Date an favorable opinion from Ropes & Gray LLP____________________, counsel to the Acquiring FundTrust, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in form and substance reasonably satisfactory to the Selling Fund, to the following effecteffect that:
(a) The Acquiring Trust is duly organized and a validly existing under the laws of The Commonwealth of Massachusetts Delaware business trust, and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted conducted [(Delaware counsel may be relied upon in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documentsdelivering such opinion)];
(b) This the Trust is a duly registered, open-end, management investment company, 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, executed and delivered on behalf of by the Acquiring Fund Trust and, assuming that the Registration Statement complies with the 1933 Act, the 1934 Act and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1940 Act and regulations thereunder and assuming the due authorization, execution and delivery of this Agreement by the Selling FundTrust, is the a valid and binding obligation of the Acquiring Fund Trust enforceable against the Acquiring Fund Trust in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally reorganization, moratorium and other equitable laws relating to or affecting creditors' rights and to general equity principles;
(cd) The Merger the Acquiring Fund Shares to be delivered issued to the Selling Fund’s shareholders Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly issued and, assuming receipt by the Acquiring Fund of the consideration contemplated herebyissued, fully paid and non-assessable shares (except as set forth in the Acquiring FundTrust's Statement of Additional Information), and no shareholder of the Acquiring Fund Trust has any preemptive right of rights to subscription or purchase in respect thereofthereof [(Delaware counsel may be relied upon in delivering such opinion)];
(de) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate the Acquiring Trust Organizational Documents or any provision Trust's Declaration of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such By-Laws [(Delaware counsel may rely be relied upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to in delivering such matters;opinion)]; and
(ef) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act and such as may be required under state securities or blue sky laws and laws; and
6.4 As of the H-S-R Act;
(f) Such counsel does not know of any legal or governmental proceedings relating to Closing Date, there shall have been no material change in the Acquiring Fund existing on or before Fund's investment objective, policies and restrictions [nor any increase in the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to be investment management fees] from those described in the Registration Acquiring Fund's Prospectus dated [March 28, 2002] and Statement which are not described as required;
(g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and
(h) The Registration Statement has become effective andof Additional Information dated [March 28, to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued2002].
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Rreef Securities Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations, covenants and warranties of the Acquiring Trust Fund contained in this Agreement shall be true and correct 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Trust’s Fund's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except to such other matters as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.shall reasonably request; and
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 6.2 The Selling Fund shall have received on the Closing Date an opinion from Ropes Sullivan & Gray LLPWorcester, counsel to the Acquiring Fund, dated as of the Closing xxx Xxxxing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory to the Selling Fund, to covering the following effectpoints:
(a) The the Acquiring Trust Fund is a Massachusetts business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;
; (b) This this Agreement has been duly authorized, executed, executed and delivered on behalf of by the Acquiring Fund Fund, and, assuming that the Prospectus and Proxy Statement, and Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;
; (c) The Merger assuming that a consideration therefor not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in (except that, under Massachusetts law, shareholders of the Acquiring Fund could, under certain circumstances, be held personally liable for obligations of the Acquiring Fund), and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase rights in respect thereof;
; (d) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Fund's Declaration of Trust Organizational Documents or By-Laws or any provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is or any of its properties may be bound or, or to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty penalty, under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
; (e) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act Act, and such as may be required under state securities or blue sky laws and the H-S-R Act;
laws; (f) Such only insofar as they relate to the Acquiring 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; (g) such counsel does not know of any legal or governmental proceedings relating proceedings, only insofar as they relate to the Acquiring Fund Fund, existing on or before the effective date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 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;
; (gh) The the Acquiring Trust Fund is 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 ActAct is in full force and effect; and
and (hi) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the effectiveness thereof Acquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement. In addition, such counsel shall also state that they have participated in conferences with officers and other representatives of the Acquiring 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 (f) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the Acquiring Fund's officers and other representatives of the Acquiring 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 omitted to state a material fact required to be stated therein regarding the Acquiring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Acquiring 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 Selling Fund, contained in the Prospectus and Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the FFB Trust and the Selling Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester appropriate to render the opinions expressed xxxxxxx.
6.3 The merger between First Union Corporation and First Fidelity Bancorporatino Bancorporation has been issuedcompleted 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 SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, subject to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the Closing, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 All representations, covenants, and warranties of the Acquiring 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 that Closing Date. The Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in the Acquiring Fund's name by the Acquiring Trust’s Fund's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of to such other matters as the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Selling Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Dateshall reasonably request.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund Fund, a statement of certificate executed in the Acquiring Fund’s assets and liabilities, together with a list of 's name by the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and a certificate of both such officers, dated the Closing Date, substance satisfactory to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund shall have received on the Closing Date an opinion from Ropes & Gray LLP, counsel to the Acquiring Fund, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in form and substance reasonably satisfactory to the Selling Fund, to covering the following effectpoints:
(a) The Acquiring Fund is a legally designated, separate series of the Trust, and the Trust is a voluntary association, duly organized and validly existing under the laws of The Commonwealth the State of Massachusetts and Delaware, which has the power to own all of its properties and assets and to carry on its business as presently conducted.
(b) The Trust is registered as an open-end management investment company under the 1940 Act, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of and such registration under the 1940 Act is in full force and the Acquiring Trust Organizational Documents;effect.
(bc) This Agreement has been duly authorized, executed, and delivered by the Trust, on behalf of the Acquiring Fund Fund, and, assuming the Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws and assuming the due authorization, execution and delivery of this Agreement by the Selling Trust, on behalf of the Acquiring Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium, and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;.
(cd) The Merger Assuming that the Acquiring Fund Shares have been issued in accordance with the terms of this Agreement, Acquiring Fund Shares to be issued and delivered to each Selling Fund on behalf of the Selling Fund’s shareholders Fund Shareholders, as provided by this Agreement Agreement, are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in the Acquiring Fundassessable, and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase in respect thereof;
(d) The execution and delivery of this Agreement did not, and the performance by the Acquiring Fund of its obligations hereunder will not, violate the Acquiring Trust Organizational Documents or any provision of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that rights with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;Shares.
(e) To The Registration Statement has been declared effective by the knowledge of such counselCommission and no stop order under the 1933 Act pertaining thereto has been issued, and no consent, approval, authorization or order of any court or governmental authority of the United States or the State of Maryland is required for the consummation by the Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act and such as may be required under state securities or blue sky laws and the H-S-R Act;.
(f) Such counsel does not know 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 Trust's Trust Instrument or By-Laws or any provision of any legal material agreement, indenture, instrument, contract, lease or governmental proceedings relating other undertaking to which the Acquiring Fund existing on is a party or before the date by which it or any of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to its properties may be described in the Registration Statement which are not described as required;
(g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and
(h) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issuedbound.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Berger Investment Portfolio Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations, covenants and warranties of the Acquiring Trust Fund contained in this Agreement shall be true and correct 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Evergreen Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of the Closing Date, except to such other matters as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.shall reasonably request; and
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 6.2 The Selling Fund shall have received on the Closing Date an opinion from Ropes Sullivan & Gray LLPWorcester, counsel to the Acquiring Fund, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory satxxxxxxxxy to the Selling Fund, to covering the following effectpoints:
(a) The the Acquiring Trust Fund is a separate investment series of a Massachusetts business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;
; (b) This this Agreement has been duly authorized, executed, executed and delivered on behalf of by the Acquiring Fund Fund, and, assuming that the Prospectus and Proxy Statement, and Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and, assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;
; (c) The Merger assuming that a consideration therefor not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in (except that, under Massachusetts law, shareholders of the Acquiring Fund could, under certain circumstances, be held personally liable for obligations of the Acquiring Fund), and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase rights in respect thereof;
; (d) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Evergreen Trust's Declaration of Trust Organizational Documents or By- Laws or any provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is or any of its properties may be bound or, or to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty penalty, under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
; (e) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act Act, and such as may be required under state securities or blue sky laws and the H-S-R Act;
laws; (f) Such only insofar as they relate to the Acquiring 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; (g) such counsel does not know of any legal or governmental proceedings relating proceedings, only insofar as they relate to the Acquiring Fund Fund, existing on or before the effective date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 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;
; (gh) The the Acquiring Trust 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 best knowledge, such registration with the Commission as an investment company under the 1940 ActAct is in full force and effect; and
and (hi) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or threatened as to the effectiveness thereof has been issuedAcquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement. In addition, such counsel shall also state that they have participated in conferences with officers and other representatives of the Acquiring 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 (f) of their above opinion), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of the Evergreen Trust's officers and other representatives of the Acquiring 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 omitted to state a material fact required to be stated therein regarding the Acquiring Fund or necessary, in the light of the circumstances under which they were made, to make the statements therein regarding the Acquiring 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 Selling Fund, contained in the Prospectus and Proxy Statement or the Registration Statement, and that such opinion is solely for the benefit of the FFB Trust and the Selling Fund. Such opinion shall contain such other assumptions and limitations as shall be in the opinion of Sullivan & Worcester appropriate to render the opinions expressed therein.
6.3 The merger between First Union Corporation and First Fidelity Corporation Bancorporation shall be completed prior to the Closing Date. ARTICLE VII
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Trust on behalf of the Acquiring Fund of all the obligations to be performed by it hereunder on or before the Closing, Closing Date and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 All representations and warranties of the Trust contained in this Agreement shall be true and correct in all material respects as of the date hereof 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.
6.2 The Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund Fund, a certificate executed on their behalf by the Acquiring Trust’s President or any Vice of its President and its Treasurer, in a form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the effect that the representations and warranties of the Acquiring Fund Trust made in this Agreement are true and correct at and as of the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts as to be performed or satisfied under this Agreement at or prior to the Closing Date.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to such other matters as the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreementshall reasonably request.
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund shall have received on the Closing Date an a favorable opinion from Ropes Xxxxxxx Xxxx & Gray LLPXxxxxxxxx, counsel to the Acquiring FundTrust, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in form and substance reasonably satisfactory to the Selling Fund, to the following effecteffect that:
(a) The Acquiring Trust is duly organized and a validly existing under the laws of The Commonwealth of Massachusetts Delaware business trust, and has the power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted conducted (Delaware counsel may be relied upon in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documentsdelivering such opinion);
(b) This the Trust is a duly registered, open-end, management investment company, 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, executed and delivered on behalf of by the Acquiring Fund Trust and, assuming that the Registration Statement complies with the 1933 Act, the 1934 Act and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws the 1940 Act and regulations thereunder and assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund Trust enforceable against the Acquiring Fund Trust in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally reorganization, moratorium and other equitable laws relating to or affecting creditors' rights and to general equity principles;
(cd) The Merger the Acquiring Fund Shares to be delivered issued to the Selling Fund’s shareholders Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly issued and, assuming receipt by the Acquiring Fund of the consideration contemplated herebyissued, fully paid and non-assessable shares (except as set forth in the Acquiring FundTrust's Statement of Additional Information), and no shareholder of the Acquiring Fund Trust has any preemptive right of rights to subscription or purchase in respect thereofthereof (Delaware counsel may be relied upon in delivering such opinion);
(de) The the execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate the Acquiring Trust Organizational Documents or any provision Trust's Declaration of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such By-Laws (Delaware counsel may rely be relied upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to in delivering such matters;opinion); and
(ef) To 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 Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement herein, except such as have been obtained under the 1933 Act, the 1934 Act, Act and the 1940 Act and such as may be required under state securities or blue sky laws and laws.
6.4 As of the H-S-R Act;
(f) Such counsel does not know of any legal or governmental proceedings relating to Closing Date, there shall have been no material change in the Acquiring Fund existing on or before Fund's investment objective, policies and restrictions nor any increase in the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to be investment management fees from those described in the Registration Acquiring Fund's Prospectus for the A and B Class shares and Prospectus for the Institutional Class shares and the Acquiring Fund's Statement which are not described as required;
(g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and
(h) The Registration Statement has become effective andof Additional Information, to the knowledge of such counseleach dated September 3, no stop order suspending the effectiveness thereof has been issued2002.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Scudder Rreef Securities Trust)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder the Acquiring Fund pursuant to this Agreement on or before the Closing, Closing Date and, in addition theretoaddition, the satisfaction or waiver of subject to the following further conditions:
6.1 All representations, covenants and warranties of the Acquiring 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 Acquiring Trust and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in the Acquiring Fund's name by the Acquiring Trust’s 's President or any Vice President and its Treasurer or Assistant Treasurer, in form and substance satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of to such other matters as the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Selling Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Dateshall reasonably request.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund shall have received on the Closing Date an opinion from Ropes of Vedder, Price, Kaufman & Gray LLP, counsel to the Acquiring FundKammholz, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory reasonablx xxxxxfactory to the Selling Fund, to covering the following effectpoints:
(a) The Acquiring Trust is duly organized and a statutory trust validly existing under the laws of The Commonwealth the State of Massachusetts and has power to own all of its properties and assets and to carry on its business as presently conducted, and, the Acquiring Fund is a separate series thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Acquiring Trust Organizational Documents;Delaware.
(b) This Agreement has been duly authorized, executed, executed and delivered by the Acquiring Trust on behalf of the Acquiring Fund and, assuming the Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws and assuming the due authorization, execution and delivery of this Agreement by the Selling FundTrust, is the a valid and binding obligation of the Acquiring Trust on behalf of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement to bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;.
(c) The Merger Shares to be delivered to the Selling Fund’s shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, fully paid and non-assessable shares in the Acquiring Fund, and no shareholder of the Acquiring Fund has any preemptive right of subscription or purchase in respect thereof;
(d) The execution and delivery of this Agreement did do not, and the performance by the Acquiring Fund of its obligations hereunder will not, violate the Acquiring Trust Organizational Documents or any provision of any material agreement known to such counsel to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in the Acquiring Trust’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information or the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;
(e) To the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Trust or the Acquiring Fund of the transactions contemplated by this Agreement except such as have been obtained under the 1933 Actherein will not, the 1934 Act, and the 1940 Act and such as may be required under state securities or blue sky laws and the H-S-R Act;
(f) Such counsel does not know result in a violation of any legal or governmental proceedings relating to the Acquiring Fund existing on Trust's trust instrument or before the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to be described in the Registration Statement which are not described as required;
(g) The Acquiring Trust is registered with the Commission as an investment company under the 1940 Act; and
(h) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issuedbylaws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Janus Adviser Series)
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The obligations of the Selling Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the ClosingClosing Date, and, in addition thereto, the satisfaction or waiver of the following further conditions:
6.1 The All representations and warranties of the Acquiring Trust 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, and the Acquiring Fund shall have delivered to the Selling Fund a certificate executed on their behalf in its name by the Acquiring Trust’s 's President or any Vice President and its TreasurerPresident, in form and substance reasonably satisfactory to the Selling Fund and dated as of the Closing Date, to the such effect that the representations and warranties of the Acquiring Fund made in this Agreement are true and correct at and as of to such other matters as the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and that the Acquiring Selling Fund has complied with all the covenants and agreements and satisfied all of the conditions on their parts to be performed or satisfied under this Agreement at or prior to the Closing Dateshall reasonably request.
6.2 The Acquiring Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Selling Fund an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the liabilities of the Selling Fund in connection with transactions contemplated by this Agreement.
6.3 All proceedings taken by the Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance With respect to the Selling Fund.
6.4 The Acquiring Fund shall have delivered to the Selling Fund a statement of the Acquiring Fund’s assets and liabilities, together with a list of the Acquiring Fund’s portfolio securities as of the Closing Date, certified on the Acquiring Fund’s behalf by the Acquiring Fund Trust’s President or any Vice President and its Treasurer, and a certificate of both such officers, dated the Closing Date, to the effect that as of the Valuation Date and as of the Closing Date there has been no material adverse change in the financial position of the Acquiring Fund since September 30, 2023 (and March 31, 2024, as applicable), other than changes in its portfolio securities since that date, changes in the market value of its portfolio securities, changes due to net redemptions or changes due to dividends paid or losses from operations.
6.5 The Selling Fund shall have received from the Commission, any relevant state securities administrator and the Department of Justice (the “Department”) such order or orders as Ropes & Gray LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, and any applicable state securities or blue sky laws in connection with the transactions contemplated hereby, and all such orders shall be in full force and effect.
6.6 The Selling Fund Trust shall have received on the Closing Date an opinion from Ropes Sxxxxxxx & Gray Worcester LLP, special counsel to the Trust and the Acquiring Fund, dated as of the Closing Date, with such assumptions and limitations as shall be in the opinion of Ropes & Gray LLP appropriate to render the opinions expressed therein, in a form and substance reasonably satisfactory to the Selling Fund, to covering the following effectpoints:
(a) The Acquiring Trust Fund is a separate investment series of a business trust duly organized and organized, validly existing and in good standing under the laws of The the Commonwealth of Massachusetts and and, to such counsel's knowledge, has the trust power to own all of its properties and assets and and, to carry on its business as presently conducted, and, the .
(b) The Acquiring Fund is a separate series thereof duly constituted in accordance of a Massachusetts business trust registered as an investment company under the 1940 Act, and, to such counsel's knowledge, such registration with the applicable provisions of Commission as an investment company under the 1940 Act is in full force and the Acquiring Trust Organizational Documents;effect.
(bc) This Agreement has been duly authorized, executed, and delivered by the Trust on behalf of the Acquiring Fund and, assuming the Registration Statement and Combined Information Statement/Prospectus referred to in paragraph 5.2 comply with applicable federal securities laws and assuming the due authorization, execution and delivery of this Agreement by the Selling Fund, is the a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, except subject as the same may be limited by to enforcement, to bankruptcy, insolvency, reorganization reorganization, fraudulent transfer, moratorium, and other laws relating to or other similar laws affecting the enforcement of creditors’ ' rights generally and other equitable to general equity principles;.
(cd) The Merger Assuming that a consideration therefore not less than the net asset value thereof has been paid, the Acquiring Fund Shares to be issued and delivered to the Selling Fund’s shareholders Fund on behalf of the Selling Fund Shareholders as provided by this Agreement are duly authorized and upon such delivery will be validly legally issued and, assuming receipt by the Acquiring Fund of the consideration contemplated hereby, and outstanding and fully paid and non-assessable shares in the Acquiring Fundassessable, and no shareholder of the Acquiring Fund has any statutory preemptive right of subscription or purchase rights in respect thereof;.
(de) The Registration Statement, to the knowledge of such counsel, has been declared effective by the Commission 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 Commonwealth of Massachusetts is required for consummation by the Acquiring 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.
(f) The execution and delivery of this Agreement did not, and the performance by consummation of the Acquiring Fund of its obligations hereunder transactions contemplated hereby will not, violate result in a violation of the Acquiring Trust's Declaration of Trust Organizational Documents or any By-Laws or a material provision of any material agreement agreement, indenture, instrument, contract, lease or other undertaking (in each case known to such counsel counsel) to which the Acquiring Trust or the Acquiring Fund is a party or by which it is 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 material agreement, judgment, or decree to which the Acquiring Trust or the Acquiring Fund is a party or by which it is bound.
(g) Only insofar as they relate to the Acquiring Fund, it being understood that with respect to investment restrictions as contained the descriptions in the Prospectus/Proxy Statement of statutes, legal and governmental proceedings and material contracts, if any, are accurate and fairly present the information required to be shown.
(h) In the ordinary course of such counsel's representation of the Acquiring Trust’s Agreement Fund, and Declaration without having made any investigation, such counsel does not know of Trustany legal or governmental proceedings, Bylawsonly insofar as they relate to the Acquiring Fund, then current prospectus existing on or statement before the effective date of additional information 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.
(i) In the ordinary course of such counsel's representation of the Acquiring 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 Acquiring Fund or any of its properties or assets and the Acquiring Fund is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body, which materially and adversely affects its business, other than as previously disclosed in the Registration Statement, such counsel may rely upon a certificate of an officer of the Acquiring Fund whose responsibility it is to advise the Acquiring Fund with respect to such matters;.
(ej) To the knowledge of such counsel, 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 Acquiring Trust or the Acquiring Fund of the transactions transaction contemplated by this Agreement herein, except such as have been has and as may be obtained under the 1933 Act, the 1934 Act and the 1940 Act, and the 1940 Act and such as may be required under state securities or blue sky laws laws. Such opinion shall contain such assumptions and the H-S-R Act;
(f) Such counsel does not know of any legal or governmental proceedings relating to the Acquiring Fund existing on or before the date of mailing of the Combined Information Statement/Prospectus referred to in Section 5.2 or the Closing Date required to limitations as shall be described in the Registration Statement which are not described as required;
(g) The Acquiring Trust is registered with opinion of Sxxxxxxx & Worcester LLP appropriate to render the Commission as an investment company under the 1940 Act; and
(h) The Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issuedopinions expressed therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)
