Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that: (a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares; (b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect; (c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund; (e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound; (f) Reserved; (g) Reserved; (h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico); (i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code; (j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof; (k) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund; (l) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and (n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 7 contracts
Samples: Agreement and Plan of Reorganization (Fidelity Rutland Square Trust II), Agreement and Plan of Reorganization (Fidelity Rutland Square Trust II), Agreement and Plan of Reorganization (Fidelity Rutland Square Trust II)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to to, and agrees with with, the Acquired Target Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trusttrust, a statutory trust with transferable shares, duly organized, validly existing, existing and in good standing under the laws of the State its jurisdiction of Delawareorganization, and has the power and authority to own all of its properties and assets and to carry out its obligations under this Agreement. It The Acquiring Fund has all necessary federal, state, state and local authorizations to carry on its business as it is now being conducted or proposed to be conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 ActAct as a non-diversified, closed end management investment company and such registration has not been revoked or rescinded and is in full force and effect;.
(c) The Prospectus Acquiring Fund has full power and Statement authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of Additional Information this Agreement has been duly authorized by all necessary action of its board of trustees, and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(d) An unaudited statement of assets, liabilities and capital of the Acquiring Fund and an unaudited schedule of investments of the Acquiring Fund, dated June 5in each case, 2010with values determined as provided in Section 5 of this Agreement, each as supplementedof the Valuation Date (together, previously the "Acquiring Fund Closing Financial Statements"), will be furnished to the Acquired Target Fund, at or prior to the Closing Date, for the purpose of determining the number of Acquiring Fund did not Common Shares and do not contain any untrue statement of a material fact or omit to state a material fact required Acquiring Fund Preferred Shares to be stated therein or necessary issued to make the statements therein not misleading;Target Fund pursuant to Section 5 hereof; the Acquiring Fund Closing Financial Statements will fairly present the financial position of the Acquiring Fund as of the Valuation Date in conformity with GAAP.
(de) Except as disclosed in writing to the Acquired Fund, there There are no material legal, administrative, administrative or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund it which assert liability on the part of the Acquiring FundFund or which materially affect its financial condition or its ability to consummate the Reorganization. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedingsis not charged with nor, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notbest of its knowledge, and the executiondoes any person presently intend to charge it with, deliveryor to recommend that it be charged with, and performance of this Agreement will not result in, any violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, provisions of any agreementfederal, indenture, instrument, contract, lease, state or other undertaking local law or regulation or administrative ruling to which it is bound.
(f) There are no material contracts outstanding to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result that have not been disclosed in the acceleration of any obligation Registration Statement or that have not otherwise been disclosed to the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;Target Fund.
(g) Reserved;The execution, delivery and performance of this Agreement by the Acquiring Fund do not, and the consummation of the transactions contemplated hereby will not, constitute or result in a breach or violation of, or a default under, (i) the governing documents of the Acquiring Fund, (ii) any contract or other commitment or obligation binding upon the Acquiring Fund, after giving effect to any agreement of the Funds to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization or (iii) any order or decree binding upon the Acquiring Fund.
(h) The Acquiring Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Acquiring Fund Closing Financial Statements, those incurred in the ordinary course of its business as an investment company, and those incurred in connection with the Reorganization. As of the Valuation Date, the Acquiring Fund will advise the Target Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time, not otherwise disclosed in the Acquiring Fund Closing Financial Statements.
(i) No consent, approval, authorization, authorization or order of any court or governmental government authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this AgreementReorganization, except such as have been obtained may be required under the 1933 Act, the 1934 Act, Act and the 1940 Act, and Act or state securities or blue sky laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico);.
(ij) At The registration statement filed by the Acquiring Fund on Form N-14, which includes the proxy statement of the Target Fund with respect to the transactions contemplated herein (the "Proxy Statement/Prospectus"), and any documents included or incorporated by reference therein and any supplement or amendment thereto (collectively, as so amended or supplemented, the "Registration Statement"), on the effective date of the Registration Statement, at the time of the Reorganizationspecial meeting of the shareholders of the Target Fund called to vote on this Agreement and the Reorganization (the "Shareholder Meeting") and at the Closing Date (i) complied or will comply in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii) did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and the Proxy Statement/Prospectus included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by the Acquiring Fund will be a regulated investment company as defined with respect to statements made or incorporated by reference in the Registration Statement or Proxy Statement/Prospectus based on information supplied by the Target Fund or any RMR Fund for inclusion or incorporation by reference therein, or based on information which is not included or incorporated by reference in such documents but which should have been disclosed pursuant to Section 851 of the Code;3(l).
(jk) As The Acquiring Fund is authorized to issue an unlimited number of common shares of beneficial interest, par value $.001 per share (the Closing Date"Acquiring Fund Common Shares"), the and an unlimited number of preferred shares of beneficial interest of ("Acquiring Fund Preferred Shares").
(l) The Acquiring Fund Common Shares and the Acquiring Fund Preferred Shares to be issued to the Acquired Target Fund pursuant to this Agreement will have been duly authorized and, when issued and delivered transferred pursuant to this Agreement, will be legally and validly issued and will be fully paid paid, nonassessable and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fundwill have full voting rights, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
. (km) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(l) The Registration Statement having been declared effective and the filing of the Proxy Statement/Prospectus under Rule 497, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in has taken all material respects with the provisions of required action under the 1933 Act, the 1934 Act, Act and the 1940 Act, Act and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary thereunder to make the statements therein not misleading; public offering and at consummate the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance sale of the Acquiring Fund Common Shares pursuant to as contemplated by this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities lawsAgreement.
Appears in 5 contracts
Samples: Agreement and Plan of Reorganization (RMR Real Estate Income Fund), Agreement and Plan of Reorganization (RMR Real Estate Income Fund), Agreement and Plan of Reorganization (RMR Real Estate Income Fund)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to the Acquired Fund that the statements contained in this paragraph 2.1 are correct and complete in all material respects as of the execution of this Agreement on the date hereof. The Acquiring Fund represents and warrants to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust corporation duly organized, organized and validly existing, and in good standing existing under the laws of the State of DelawareMaryland and is in good standing with the SDAT, and has the corporate power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to .
(b) At the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect shall succeed to the issuance registration statement of the initial Acquiring Acquired Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company filed under the 1940 Act with the Securities and Exchange Commission and thus will become duly registered under the 1940 Act, and such registration is in full force and effect;Act as a closed-end management investment company.
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained may be required under Maryland law for the 1933 Act, acceptance for record of the 1934 Act, Articles of Merger by the 1940 ActSDAT.
(d) The Acquiring Fund is not, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, delivery and performance of this Agreement by the Acquiring Fund will have been duly authorized prior to not result, in violation of the Closing Date by all necessary corporate action on laws of the part State of Maryland or of the charter of the Acquiring Fund (the “Acquiring Fund Charter”) or the Bylaws (the “Acquiring Fund Bylaws”), of the Acquiring Fund, or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, and the execution, delivery and performance of this Agreement by the Acquiring Fund will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(e) The Acquiring Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Acquiring Fund Board, and, subject to approval by the sole stockholder of the Acquiring Fund, this Agreement constitutes a valid and binding obligation of the Acquiring Fund contract enforceable in accordance with its terms, subject to approval by the shareholders effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(f) The Acquiring Fund is authorized to issue 1,000,000,000 shares of common stock, par value $0.001 per share (the “Acquiring Fund Common Stock”).
(g) Subject to the accuracy of the Acquired Fund;
(l) The Registration Statement representations and warranties in paragraph 2.2(i), for the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on taxable year that includes the Closing Date, the ProspectusAcquiring Fund expects to meet the requirements of Chapter 1, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement Part I of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance Subchapter M of the Acquiring Fund Shares pursuant to this Agreement Code for qualification as a RIC and will be in compliance with all applicable eligible to, and will, compute its federal securities laws; and
(n) All income tax under Section 852 of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities lawsCode.
Appears in 4 contracts
Samples: Merger Agreement (Pioneer Floating Rate Fund, Inc.), Merger Agreement (Pioneer Diversified High Income Fund, Inc.), Merger Agreement (Pioneer High Income Fund, Inc.)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to the Acquired Fund that the statements contained in this paragraph 2.1 are correct and complete in all material respects as of the execution of this Agreement on the date hereof. The Acquiring Fund represents and warrants to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust corporation duly organized, organized and validly existing, and in good standing existing under the laws of the State of DelawareMaryland and is in good standing with the SDAT, and has the corporate power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to .
(b) At the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect shall succeed to the issuance registration statement of the initial Acquiring Acquired Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company filed under the 1940 Act with the Securities and Exchange Commission and thus will become duly registered under the 1940 Act, and such registration is in full force and effect;Act as a closed-end management investment company.
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained may be required under Maryland law for the 1933 Act, acceptance for record of the 1934 Act, Articles of Merger by the 1940 ActSDAT.
(d) The Acquiring Fund is not, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, delivery and performance of this Agreement by the Acquiring Fund will have been duly authorized prior to not result, in violation of the Closing Date by all necessary corporate action on laws of the part State of Maryland or of the charter of the Acquiring Fund (the “Acquiring Fund Charter”) or the Bylaws (the “Acquiring Fund Bylaws”), of the Acquiring Fund, or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, and the execution, delivery and performance of this Agreement by the Acquiring Fund will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(e) The Acquiring Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Acquiring Fund Board, and, subject to approval by the sole stockholder of the Acquiring Fund, this Agreement constitutes a valid and binding obligation of the Acquiring Fund contract enforceable in accordance with its terms, subject to approval by the shareholders effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(f) The Acquiring Fund is authorized to issue 1,000,000,000 shares of common stock, par value $0.001 per share (the “Acquiring Fund Common Stock”), and 100,000,000 shares of preferred stock, par value $0.001 per share (the “Acquiring Fund Preferred Stock”). 1,450 shares of Acquiring Fund Preferred Stock have been classified and designated as Variable Rate MuniFund Term Preferred Shares (the “Acquiring Fund VMTP Shares”).
(g) Subject to the accuracy of the Acquired Fund;
(l) The Registration Statement representations and warranties in paragraph 2.2(i), for the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on taxable year that includes the Closing Date, the ProspectusAcquiring Fund expects to meet the requirements of Chapter 1, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement Part I of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance Subchapter M of the Acquiring Fund Shares pursuant to this Agreement Code for qualification as a RIC and will be in compliance with all applicable eligible to, and will, compute its federal securities laws; and
(n) All income tax under Section 852 of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities lawsCode.
Appears in 3 contracts
Samples: Merger Agreement (Pioneer Municipal High Income Fund, Inc.), Merger Agreement (Pioneer Municipal High Income Advantage Fund, Inc.), Merger Agreement (Pioneer Municipal High Income Advantage Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a statutory Massachusetts business trust duly organized, organized and validly existingexisting under, and in good standing under conformity with, the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It The Acquiring Fund Trust is qualified as a foreign association in every jurisdiction where required, except to the extent that failure to so qualify would not have a material adverse effect on the Acquiring Fund Trust. Each of the Acquiring Fund Trust and the Acquiring Fund has all necessary federal, state, and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end management investment company and such registration has not been revoked or rescinded and is in full force and effect;, and the Acquiring Fund is a separate diversified series thereof duly designated in accordance with the applicable provisions of the Acquiring Fund Trust’s Amended and Restated Declaration of Trust, dated January 22, 2016, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act.
(c) The Prospectus Acquiring Fund has elected to be, and Statement has met the requirements of Additional Information subchapter M of the Code for treatment as, a “regulated investment company” (“RIC”) within the meaning of Sections 851 and 852 of the Code at all times since its inception, and will continue to meet such requirements at all times through the Closing Date (as defined in Section 7 herein) and thereafter. The Acquiring Fund has not at any time since its inception been liable for, and is not now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code.
(d) The Acquired Fund has been furnished with the annual report of the Acquiring Fund for the fiscal year ended August 31, 2015, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP (“PwC”), independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of August 31, 2015, in conformity with accounting principles generally accepted in the United States applied on a consistent basis.
(e) The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those that will be shown as belonging to it on its statement of assets and liabilities as of August 31, 2015, and those incurred in the ordinary course of business as an investment company since such date. As of the Valuation Time (as defined in Section 3(e)), the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time.
(f) The Acquiring Fund Trust, on behalf of the Acquiring Fund, has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement has been duly authorized by all necessary action of the board of trustees of the Acquiring Fund Trust (the “Acquiring Fund Trust Board of Trustees”), and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms subject to approval by the Acquired Fund’s shareholders and subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance, and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(g) Except as has been disclosed in writing to the Acquired Fund, there are no material legal, administrative or other proceedings pending or, to the knowledge of the Acquiring Fund Trust or the Acquiring Fund, threatened against the Acquiring Fund Trust or the Acquiring Fund which assert liability on the part of the Acquiring Fund Trust or the Acquiring Fund or which materially affect the financial condition of the Acquiring Fund Trust or the Acquiring Fund or the Acquiring Fund Trust’s or the Acquiring Fund’s ability to consummate the Reorganization. Neither the Acquiring Fund Trust nor the Acquiring Fund is charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state, or local law or regulation or administrative ruling relating to any aspect of its business.
(h) Neither the Acquiring Fund Trust nor the Acquiring Fund is obligated under any provision of the Acquiring Fund Trust Declaration or the Acquiring Fund Trust’s By-laws, dated June 528, 20102005, as supplementedmay be amended (the “Acquiring Fund Trust By-laws”), previously furnished and neither is a party to any contract or other commitment or obligation, nor is subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Acquiring Fund and the Acquired Fund may mutually agree that the Acquiring Fund may take such necessary action to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the N-14 Registration Statement (as defined in sub-section (k) below) or that will not otherwise be disclosed to the Acquired Fund prior to the Valuation Time.
(j) No consent, approval, authorization, or order of any court or government authority is required for the consummation by the Acquiring Fund of the Reorganization, except such as may be required under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico).
(k) The registration statement on Form N-14 filed with the Securities and Exchange Commission (the “Commission”) by the Acquiring Fund Trust on behalf of the Acquiring Fund and relating to the Merger Shares issuable hereunder, and the proxy statement of the Acquired Fund relating to the meeting of the Acquired Fund’s shareholders referred to in Section 6(b) herein (together with the documents incorporated therein by reference, the “Proxy Statement/Prospectus”), and any supplement or amendment thereto or to the documents therein (as amended or supplemented, the “N-14 Registration Statement”), on the effective date of the N-14 Registration Statement, at the time of the shareholders’ meeting referred to in Section 6(b) of this Agreement and at the Closing Date, insofar as it relates to the Acquiring Fund,
(i) did and will comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act and the rules and regulations thereunder; and
(ii) does not and do will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;; and the Proxy Statement/Prospectus included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that none of the representations and warranties in this sub-section shall apply to statements in or omissions from the N-14 Registration Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the N-14 Registration Statement.
(dl) Except as disclosed in writing The Acquiring Fund’s investment operations from inception to the Acquired Fund, there are no date hereof have been in compliance in all material legal, administrative, or other proceedings pending or, to respects with the knowledge investment policies and investment restrictions set forth in the N-14 Registration Statement.
(m) All issued and outstanding shares of the Acquiring Fund are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid, and nonassessable by the Acquiring Fund. In regard to the statement above that the outstanding shares will be nonassessable, threatened against it is noted that the Acquiring Fund which assert liability on Trust is a “Massachusetts business trust” and under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the part obligations of the Acquiring Fund. The Acquiring Fund knows does not have outstanding any security convertible into any of no facts which might reasonably form the basis for the institution of such proceedingsAcquiring Fund shares, except as otherwise disclosed to that Class A shares of the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument are convertible into Class I shares or By-laws, or, to the knowledge Class R6 shares of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the Class C shares of beneficial interest of the Acquiring Fund are convertible into Class I shares of the Acquiring Fund, in each case in the manner and on the terms described in the N-14 Registration Statement.
(n) The Merger Shares to be issued to the Acquired Fund will pursuant to this Agreement have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class A, Class C, Class R6 and Class I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;. In regard to the statement above that the Merger Shares will be nonassessable, it is noted that Acquiring Fund Trust is a “Massachusetts business trust” and under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of Acquiring Fund Trust.
(ko) The execution, delivery, and performance of this Agreement will have been duly authorized At or prior to the Closing Date by all necessary corporate action on Date, the part of Merger Shares to be transferred to the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Acquired Fund enforceable in accordance with its terms, subject for distribution to approval by the shareholders of the Acquired Fund;Fund on the Closing Date will be duly qualified for offering to the public in all states of the United States in which the sale of shares of the Acquired Fund presently are qualified, and there will be a sufficient number of such shares registered under the 1933 Act and, as may be necessary, with each pertinent state securities commission to permit the transfers contemplated by this Agreement to be consummated.
(lp) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate At or prior to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the ProspectusAcquiring Fund will have obtained any and all regulatory, as amended or supplementedtrustee, insofar as it relates and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund.
(q) The Acquiring FundFund has timely filed, will not contain any untrue statement of a material fact or omit intends to state a material fact file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be stated therein filed by it, and has paid or necessary has obtained extensions to make pay, all federal, state, and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the statements therein not misleading;
(m) The issuance of taxable year in which the Acquiring Fund Shares pursuant to this Agreement will be Closing Date occurs. All such tax returns are true, correct and complete in compliance with all applicable federal securities laws; and
(n) material respects. All of the issued and outstanding shares of beneficial interest tax liabilities of the Acquiring Fund have been offered adequately provided for sale on its books, and sold no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in conformity with excess of those already paid, up to and including the federal securities lawstaxable year in which the Closing Date occurs.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (John Hancock Funds II), Agreement and Plan of Reorganization (John Hancock Funds II), Agreement and Plan of Reorganization (John Hancock Investment Trust Ii)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5April 29, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at February 28, 2010, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended August 31, 2010. Said Statements of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its Statement of Assets and Liabilities as of February 28, 2010 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since February 28, 2010;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of for all prior taxable years and intends to meet such requirements for its current taxable year ending on February 28, 2011 and for the Code;subsequent taxable year ending on February 29, 2012 (which would include the Reorganization).
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, terms subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Fidelity Concord Street Trust), Reorganization Agreement (Fidelity Concord Street Trust)
Representations and Warranties of the Acquiring Fund. The Except as has been fully disclosed to the Acquired Fund as of the date hereof in a written instrument executed by an officer of the Acquiring Fund, Acquiring Fund represents and warrants to and agrees with the Acquired Fund thatas follows:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of DelawareDelaware with power under its Amended and Restated Agreement and Declaration of Trust and Amended and Restated By-Laws, and has the power each as amended from time-to-time, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;it is presently conducted.
(b) The Acquiring Fund Trust is an openregistered with the Commission as a closed-end, end management investment company duly registered under the 1940 Act, and such registration is in full force and effect;the Acquiring Fund Shares have been registered under the 1933 Act.
(c) The Prospectus Acquiring Fund has not taken any action and Statement does not know of Additional Information any fact or circumstance that could reasonably be expected to prevent the Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;Code.
(d) Except as disclosed in writing to At the Acquired FundEffective Time, there are no all material legalFederal and other tax returns, administrativedividend reporting forms, or and other proceedings pending or, to the knowledge tax-related reports of the Acquiring FundFund required by law to have been filed by such date (including any extensions, threatened against the Acquiring Fund which assert liability if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be shown as due on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis said returns and reports shall have been paid or provision shall have been made for the institution of payment thereof, and no such proceedingsreturn is currently under audit, except as otherwise disclosed and no assessment has been asserted, in writing, with respect to the Acquired Fund;such returns.
(e) The Acquiring Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable year since its commencement of operations (including the period through the Closing Date), the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code and expects to continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for, nor is notnow liable for, and any material income or excise tax pursuant to Sections 852 or 4982 of the executionCode. There is no other material tax liability (including any foreign, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument state or By-laws, or, to the knowledge local tax liability) of the Acquiring Fund except as set forth and accrued on the Acquiring Fund, ’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply. The Acquiring Fund will not be subject to corporate-level taxation on the sale of any agreement, indenture, instrument, contract, lease, or other undertaking to which assets currently held by it as a result of the Acquiring Fund is a party or by which application of Section 337(d) of the Acquiring Fund is bound or result in Code and the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;regulations thereunder.
(f) Reserved;The Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its common shares of beneficial interest. To the actual knowledge of its officers, the Acquiring Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld and is not liable for any penalties which could be imposed thereunder. The Acquiring Fund is not under audit by any federal, state or local taxing authority, and there are no actual or proposed tax deficiencies with respect to the Acquiring Fund that have been presented to the Acquiring Fund in writing.
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities laws.
(h) The shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information of the Acquiring Fund used at all times prior to the date of this Agreement conform or conformed at the time of their use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 ActAct and the rules and regulations of the Commission thereunder and do not or did not at the time of their use include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, and state securities or blue sky laws (in light of the circumstances under which term as used herein shall include the District of Columbia and Puerto Rico);they were made, not materially misleading.
(i) At the time of the Reorganization, the The Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fundis not engaged currently, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, delivery and performance of this Agreement will not result, in: (i) a violation of federal securities laws (including the 1940 Act) or of Delaware law in any material respect or a material violation of its Amended and Restated Agreement and Declaration of Trust and Amended and Restated By-Laws, each as amended from time-to-time, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(j) Except as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund or any of the Acquiring Fund’s properties or assets that, if adversely determined, is reasonably likely to materially and adversely affect the Acquiring Fund’s financial condition or the conduct of its business. The Acquiring Fund knows of no facts which are reasonably likely to form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated.
(k) The Statement of Assets and Liabilities, Statement of Operations, Statements of Changes in Net Assets, and Schedule of Investments of the Acquiring Fund at October 31, 2023, have been audited by KPMG LLP, independent registered public accounting firm, and are in accordance with GAAP consistently applied, and such statements present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
(l) Since October 31, 2023, there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness, except as otherwise disclosed to the Acquired Fund. For the purposes of this subparagraph (l), a decline in net asset value per share of Acquiring Fund shares due to declines in market values of securities held by the Acquiring Fund, the discharge of the Acquiring Fund’s liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquiring Fund shall not constitute a material adverse change.
(m) The execution, delivery and performance of this Agreement have been duly authorized prior to the Closing Date by all necessary corporate action action, if any, on the part of the Trustees of the Acquiring Fund, and and, subject to the approval of the shareholders of the Acquiring Fund of the issuance of Acquiring Fund shares, this Agreement constitutes will constitute a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject subject, as to approval by enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The Acquiring Fund Shares to be issued and delivered to the shareholders Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant to the terms of this Agreement, will at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquiring Fund;, nor is there outstanding any security convertible into any of the Acquiring Fund’s shares.
(lo) The Registration Statement and the Proxy Statement/Prospectus (as defined in paragraph 5.6), on the effective date of the Registration Statement and insofar as they relate it relates to the Acquiring Fund, will, as of the effective time of the Registration Statement in which it is included and any time prior to the Effective Time: (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time therein, in light of the shareholders' meeting referred to circumstances under which such statements were made, not materially misleading and (ii) comply in Section 7 and on all material respects with the Closing Dateprovisions of the 1933 Act, the Prospectus, as amended or supplemented, insofar as it relates to 1934 Act and the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make 1940 Act and the statements therein not misleading;
(m) The issuance rules and regulations of the Acquiring Fund Shares pursuant Commission thereunder; provided, however, that the representations and warranties of this subparagraph (o) shall not apply to this Agreement will be statements in compliance with all applicable federal securities laws; and
(n) All of or omissions from the issued Proxy Statement/Prospectus made in reliance upon and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with information that was furnished by the federal securities lawsAcquired Fund for use therein.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Abrdn Income Credit Strategies Fund), Agreement and Plan of Reorganization (Abrdn Income Credit Strategies Fund)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a statutory Massachusetts business trust duly organized, organized and validly existingexisting under, and in good standing under conformity with, the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It The Acquiring Fund Trust is qualified as a foreign association in every jurisdiction where required, except to the extent that failure to so qualify would not have a material adverse effect on the Acquiring Fund Trust. Each of the Acquiring Fund Trust and the Acquiring Fund has all necessary federal, state, state and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end management investment company and such registration has not been revoked or rescinded and is in full force and effect;, and the Acquiring Fund is a separate diversified series thereof duly designated in accordance with the applicable provisions of the Acquiring Fund Trust’s Amended and Restated Agreement and Declaration of Trust dated August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act.
(c) The Prospectus Acquiring Fund has elected to be, and Statement has met the requirements of Additional Information subchapter M of Code for treatment as, a “regulated investment company” (“RIC”) within the meaning of Section 851 of the Code at all times since its inception, and will continue to meet such requirements at all times through the Closing Date (as defined in Section 7 herein) and thereafter. The Acquiring Fund has not at any time since its inception been liable for, or is not now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code.
(d) The Acquired Fund has been furnished with the annual report of the Acquiring Fund for the fiscal year ended March 31, 2008, and the audited financial statements appearing therein, having been audited by KPMG LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of March 31, 2008, in conformity with generally accepted accounting principles in the United States applied on a consistent basis.
(e) The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those that will be shown as belonging to it on its statement of assets and liabilities as of March 31, 2008, and those incurred in the ordinary course of business as an investment company since such date. As of the Valuation Time (as defined in Section 3(e)), the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time.
(f) The Acquiring Fund Trust, on behalf of the Acquiring Fund, has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the board of trustees of the Acquiring Fund Trust (the “Acquiring Fund Trust Board of Trustees”), and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms subject to approval by the Acquired Fund’s shareholders and subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(g) Except as has been disclosed in writing to the Acquired Fund, there are no material legal, administrative or other proceedings pending or, to the knowledge of the Acquiring Fund Trust or the Acquiring Fund, threatened against the Acquiring Fund Trust or the Acquiring Fund which assert liability on the part of the Acquiring Fund Trust or the Acquiring Fund or which materially affect the financial condition of the Acquiring Fund Trust or the Acquiring Fund or the Acquiring Fund Trust’s or the Acquiring Fund’s ability to consummate the Reorganization. Neither the Acquiring Fund Trust nor the Acquiring Fund is charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(h) Neither the Acquiring Fund Trust nor the Acquiring Fund is obligated under any provision of the Acquiring Fund Trust Declaration or the Acquiring Fund Trust’s By-laws dated June 528, 20102005, as supplementedmay be amended (the “Acquiring Fund Trust By-laws”), previously furnished and neither is a party to any contract or other commitment or obligation, nor is subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Acquiring Fund and the Acquired Fund may mutually agree that the Acquiring Fund may take such necessary action to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the N-14 Registration Statement (as defined in sub-section (k) below) or that will not otherwise be disclosed to the Acquired Fund prior to the Valuation Time.
(j) No consent, approval, authorization or order of any court or government authority is required for the consummation by the Acquiring Fund of the Reorganization, except such as may be required under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico).
(k) The registration statement on Form N-14 filed with the Securities and Exchange Commission (the “Commission”) by the Acquiring Fund Trust on behalf of the Acquiring Fund and relating to the Merger Shares issuable hereunder, and the proxy statement of the Acquired Fund relating to the meeting of the Acquired Fund’s shareholders referred to in Section 6(b) herein (together with the documents incorporated therein by reference, the “Proxy Statement/Prospectus”), and any supplement or amendment thereto or to the documents therein (as amended or supplemented, the “N-14 Registration Statement”), on the effective date of the N-14 Registration Statement, at the time of the shareholders’ meeting referred to in Section 6(b) of this Agreement and at the Closing Date, insofar as it relates to the Acquiring Fund,
(i) did and will comply in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder; and
(ii) does not and do will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;; and the Proxy Statement/Prospectus included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that none of the representations and warranties in this sub-section shall apply to statements in or omissions from the N- 14 Registration Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the N-14 Registration Statement.
(dl) Except as disclosed in writing The Acquiring Fund’s investment operations from inception to the Acquired Fund, there are no date hereof have been in compliance in all material legal, administrative, or other proceedings pending or, to respects with the knowledge investment policies and investment restrictions set forth in the N-14 Registration Statement.
(m) All issued and outstanding shares of the Acquiring Fund are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, threatened against it is noted that the Acquiring Fund which assert liability on Trust is a “Massachusetts business trust” and under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the part obligations of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will does not result in, violation of have outstanding any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of security convertible into any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund shares, except that Class B shares of the Acquiring Fund are convertible into Class A shares of the Acquiring Fund in the manner and on the terms described in the N-14 Registration Statement.
(n) The Merger Shares to be issued to the Acquired Fund will pursuant to this Agreement have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class A, Class B, and Class C shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;. In regard to the statement above that the Merger Shares will be nonassessable, it is noted that Acquiring Fund Trust is a “Massachusetts business trust” and under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of Acquiring Fund Trust.
(ko) The execution, delivery, and performance of this Agreement will have been duly authorized At or prior to the Closing Date by all necessary corporate action on Date, the part of Merger Shares to be transferred to the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Acquired Fund enforceable in accordance with its terms, subject for distribution to approval by the shareholders of the Acquired Fund;Fund on the Closing Date will be duly qualified for offering to the public in all states of the United States in which the sale of shares of the Acquired Fund presently are qualified, and there will be a sufficient number of such shares registered under the 1933 Act and, as may be necessary, with each pertinent state securities commission to permit the transfers contemplated by this Agreement to be consummated.
(lp) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate At or prior to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the ProspectusAcquiring Fund will have obtained any and all regulatory, as amended or supplemented, insofar as it relates trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund.
(q) The Acquiring FundFund has filed, will not contain any untrue statement of a material fact or omit intends to file, or has obtained extensions to file, all federal, state a material fact and local tax returns which are required to be stated therein filed by it, and has paid or necessary has obtained extensions to make pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the statements therein not misleading;
(m) The issuance of taxable year in which the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) Closing Date occurs. All of the issued and outstanding shares of beneficial interest tax liabilities of the Acquiring Fund have been offered adequately provided for sale on its books, and sold no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in conformity with excess of those already paid, up to and including the federal securities lawstaxable year in which the Closing Date occurs.
Appears in 2 contracts
Samples: Merger Agreement (John Hancock Funds III), Merger Agreement (John Hancock Funds III)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a statutory Massachusetts business trust duly organized, organized and validly existingexisting under, and in good standing under conformity with, the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It The Acquiring Fund Trust is qualified as a foreign association in every jurisdiction where required, except to the extent that failure to so qualify would not have a material adverse effect on the Acquiring Fund Trust. Each of the Acquiring Fund Trust and the Acquiring Fund has all necessary federal, state, state and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end management investment company and such registration has not been revoked or rescinded and is in full force and effect;, and the Acquiring Fund is a separate diversified series thereof duly designated in accordance with the applicable provisions of the Acquiring Fund Trust’s Amended and Restated Agreement and Declaration of Trust dated March 8, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act.
(c) The Prospectus Acquiring Fund has elected to be, and Statement has met the requirements of Additional Information subchapter M of Code for treatment as, a “regulated investment company” (“RIC”) within the meaning of Section 851 of the Code at all times since its inception, and will continue to meet such requirements at all times through the Closing Date (as defined in Section 7 herein) and thereafter. The Acquiring Fund has not at any time since its inception been liable for, or is not now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code.
(d) The Acquired Fund has been furnished with: (i) the annual report of the Acquiring Fund for the fiscal year ended October 31, 2008, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm (“PwC”); and (ii) the semiannual report of the Acquiring Fund for the six months ended April 30, 2009; which, in each case, fairly presents the financial condition and result of operations of the Acquiring Fund as of October 31, 2008 or April 30, 2009, as the case may be, in conformity with generally accepted accounting principles in the United States applied on a consistent basis.
(e) The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those that will be shown as belonging to it on the statement of assets and liabilities of the Acquiring Fund as of April 30, 2009, and those incurred in the ordinary course of business as an investment company since such date. As of the Valuation Time (as defined in Section 3(e)), the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time.
(f) The Acquiring Fund Trust, on behalf of the Acquiring Fund, dated June 5has full power and authority to enter into and perform its obligations under this Agreement. The execution, 2010delivery and performance of this Agreement has been duly authorized by all necessary action of the Board of Trustees of the Acquiring Fund Trust (the “Acquiring Fund Trust Board of Trustees”), as supplemented, previously furnished and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms subject to approval by the Acquired Fund’s shareholders and subject to the Acquired Fund did not effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and do not contain any untrue statement of a material fact similar laws relating to or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;affecting creditors’ rights generally and court decisions with respect thereto.
(dg) Except as has been disclosed in writing to the Acquired Fund, there are no material legal, administrative, administrative or other proceedings pending or, to the knowledge of the Acquiring Fund Trust or the Acquiring Fund, threatened against the Acquiring Fund Trust or the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Fund Trust or the Acquiring Fund knows or which materially affect the financial condition of no facts which might reasonably form the basis for Acquiring Fund Trust or the institution of such proceedings, except as otherwise disclosed Acquiring Fund or the Acquiring Fund Trust’s or the Acquiring Fund’s ability to consummate the Acquired Fund;
(e) The Reorganization. Neither the Acquiring Fund Trust nor the Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, charged with or, to the knowledge best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(h) Neither the Acquiring Fund Trust nor the Acquiring Fund is obligated under any provision of the Acquiring FundFund Trust Declaration or the Acquiring Fund Trust’s By-laws dated March 8, of 2005, as may be amended (the “Acquiring Fund Trust By-laws”), and neither is a party to any agreement, indenture, instrument, contract, lease, contract or other undertaking commitment or obligation, nor is subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Acquiring Fund and the Acquired Fund may mutually agree that the Acquiring Fund may take such necessary action to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(i) There are no material contracts outstanding to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result that have not been disclosed in the acceleration of any obligation N-14 Registration Statement (as defined in sub-section (k) below) or that will not otherwise be disclosed to the imposition of any penalty under any agreement, judgment, or decree Acquired Fund prior to which the Acquiring Fund is a party or is bound;Valuation Time.
(f) Reserved;
(g) Reserved;
(hj) No consent, approval, authorization, authorization or order of any court or governmental government authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this AgreementReorganization, except such as have been obtained may be required under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act, and Act or state securities or blue sky laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;.
(k) The execution, delivery, registration statement on Form N-14 filed with the Securities and performance of this Agreement will have been duly authorized prior to Exchange Commission (the Closing Date “Commission”) by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation Fund Trust on behalf of the Acquiring Fund enforceable in accordance with its termsand relating to the Merger Shares issuable hereunder, subject and the proxy statement of the Acquired Fund relating to approval by the shareholders meeting of the Acquired Fund;
’s shareholders referred to in Section 6(b) herein (l) The Registration Statement and together with the documents incorporated therein by reference, the “Proxy Statement/Prospectus”), and any supplement or amendment thereto or to the documents therein (as amended or supplemented, the “N-14 Registration Statement”), on the effective date of the N-14 Registration Statement Statement, at the time of the shareholders’ meeting referred to in Section 6(b) of this Agreement and at the Closing Date, insofar as they relate it relates to the Acquiring Fund, ,
(ii.) did and will comply in all material respects with the provisions of the 1933 Act, the 1934 Act, Act and the 1940 Act, Act and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (John Hancock Investment Trust Ii), Agreement and Plan of Reorganization (John Hancock Investment Trust Ii)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to to, and agrees with with, the Acquired Target Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organizedformed, validly existing, existing and in good standing under in conformity with the laws of Delaware Statutory Trust Act (the State of Delaware“DSTA”), and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It The Acquiring Fund has all necessary federal, state, state and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as a diversified, closed-end management investment company and such registration has not been revoked or rescinded and is in full force and effect;.
(c) The Prospectus Acquiring Fund has full power and Statement authority to enter into and perform its obligations under this Agreement subject, in the case of Additional Information the consummation of the Merger, to the approval of this Agreement and the transactions contemplated hereby by the common shareholders of the Acquiring Fund (the “Acquiring Fund Shareholders”) as described in Section 9(a) hereof. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action of the Acquiring Fund’s Board of Trustees, and this Agreement constitutes a valid and binding contract of the Acquiring Fund enforceable against the Acquiring Fund in accordance with its terms, subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(d) The Acquiring Fund has provided or made available (including by electronic format) to the Target Fund the most recent audited annual financial statements of the Acquiring Fund, dated June 5which have been prepared in accordance with generally accepted accounting principles in the United States of America (“US GAAP”) consistently applied and have been audited by Ernst & Young LLP, 2010each Fund’s independent registered public accounting firm, and such statements fairly present the financial condition and the results of operations of the Acquiring Fund as of the respective dates indicated and the results of operations and changes in net assets for the periods indicated, and there are no liabilities of the Acquiring Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be disclosed but are not disclosed in such statements.
(e) An unaudited statement of assets, capital and liabilities of the Acquiring Fund and an unaudited schedule of investments of the Acquiring Fund, each as of the Valuation Time (as defined in Section 3(f) herein) (together, the “Acquiring Fund Closing Financial Statements”), will be provided or made available (including by electronic format) to the Target Fund, at or prior to the Closing Date (as defined in Section 7(a) herein), for the purpose of determining the number of Acquiring Fund Common Shares (as defined in Section 1(m) herein) to be issued to the holders of Target Fund Common Shares (as defined in Section 2(n) herein) (the “Target Fund Shareholders”) pursuant to Section 3 of this Agreement; the Acquiring Fund Closing Financial 1 Statements will fairly present the financial position of the Acquiring Fund as of the Valuation Time in conformity US GAAP consistently applied.
(f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against it which assert liability on the part of the Acquiring Fund or which materially affect its financial condition or its ability to consummate the Merger. The Acquiring Fund is not charged with or, to the best of its knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of its business.
(g) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the N-14 Registration Statement (as defined in Section 1(k) herein) or that will not otherwise be disclosed to the Target Fund prior to the Valuation Time.
(h) The Acquiring Fund is not obligated under any provision of its agreement and declaration of trust (“Declaration of Trust”) or by-laws (“By-Laws”), each as amended to the date hereof, and is not a party to any contract or other commitment or obligation, and is not subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Funds have mutually agreed to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Merger.
(i) The Acquiring Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the Acquiring Fund’s Annual Report for the year ended May 31, 2021, those incurred since the date thereof in the ordinary course of its business as an investment company, and those incurred in connection with the Merger. As of the Valuation Time, the Acquiring Fund will advise the Target Fund of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time, except to the extent disclosed in the Acquiring Fund Closing Financial Statements or to the extent already known by the Target Fund.
(j) No consent, approval, authorization or order of any court or government authority is required for the consummation by the Acquiring Fund of the Merger, except such as may be required under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia) or the rules of the New York Stock Exchange, each of which will have been obtained on or prior to the Closing Date.
(k) The registration statement filed by the Acquiring Fund on Form N-14, which includes the proxy statement of the Target Fund and the Acquiring Fund with respect to the transactions contemplated herein (the “Combined Proxy Statement/Prospectus”), and any supplement or amendment thereto or to the documents included or incorporated by reference therein (collectively, as so amended or supplemented, previously furnished the “N-14 Registration Statement”), on its effective date, at the time of the shareholder meeting called to vote on this Agreement and on the Closing Date, insofar as it relates to the Acquired Fund Acquiring Fund, (i) complied or will comply in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii) did not and do or will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;; and the Combined Proxy Statement/Prospectus included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection only shall apply to statements in or omissions from the N-14 Registration Statement made in reliance upon and in conformity with information furnished by the Acquiring Fund for use in the N-14 Registration Statement.
(dl) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrativeThe Acquiring Fund has filed, or other proceedings pending orintends to file, or has obtained extensions to file, all material federal, state and local tax returns which are required to be filed by it, and has paid or has obtained 2 extensions to pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the knowledge taxable year in which the Closing Date occurs. All tax liabilities of the Acquiring FundFund have been adequately provided for on its books, threatened against and no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the taxable year in which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;Closing Date occurs.
(em) The Acquiring Fund is notauthorized to issue an unlimited number of common shares of beneficial interest, par value $0.01 per share (the “Acquiring Fund Common Shares”). Each outstanding Acquiring Fund Common Share is fully paid and nonassessable, except as provided by the Acquiring Fund’s Declaration of Trust, and has the execution, delivery, voting rights provided by the Acquiring Fund’s Declaration of Trust and performance applicable law.
(n) The books and records of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, the Acquiring Fund made available to the knowledge Target Fund and/or its counsel are substantially true and correct and contain no material misstatements or omissions with respect to the operations of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the .
(o) The Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund Common Shares to be issued to the Acquired Target Fund Shareholders pursuant to this Agreement will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (and will have full voting rights, except as disclosed in the Fund's Statement of Additional Information) provided by the Acquiring Fund’s Declaration of Trust or applicable law, and no shareholder of the Acquiring Fund Shareholder will have any preemptive right of subscription or purchase in respect thereof;.
(kp) The execution, delivery, and performance of this Agreement will have been duly authorized At or prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(l) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates Acquiring Fund Common Shares to be issued to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Target Fund Shares Shareholders pursuant to this Agreement on the Closing Date will be duly qualified for offering to the public in compliance all states of the United States in which the sale of shares of the Funds presently are qualified, and there will be a sufficient number of such Acquiring Fund Common Shares registered under the 1933 Act and, as may be necessary, with all applicable federal each pertinent state securities laws; andcommission to permit the issuance contemplated by this Agreement to be consummated.
(nq) All of At or prior to the issued and outstanding shares of beneficial interest of Closing Date, the Acquiring Fund will have been offered obtained any and all regulatory, board and shareholder approvals necessary to issue the Acquiring Fund Common Shares to the Target Fund Shareholders.
(r) The Acquiring Fund has elected to qualify and has qualified as a regulated investment company (“RIC”) within the meaning of Section 851 of the Internal Revenue Code of 1986, as amended (the “Code”), for sale each of its taxable years since its inception, and sold the Acquiring Fund has satisfied or intends to satisfy the distribution requirements imposed by Section 852 of the Code and the qualification requirements of Section 851 of the Code to maintain RIC status for each of its taxable years including the taxable year in conformity with which the federal securities lawsClosing Date occurs.
Appears in 2 contracts
Samples: Merger Agreement (Guggenheim Strategic Opportunities Fund), Merger Agreement (Guggenheim Strategic Opportunities Fund)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus Prospectuses and Statement Statements of Additional Information of the Acquiring Fund, dated June 5January 28, 20102012, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at November 30, 2011, have been audited by Deloitte & Touche LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended May 31, 2012. Said Statements of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its Statement of Assets and Liabilities as of November 30, 2011 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since November 30, 2011;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of for all prior taxable years and intends to meet such requirements for its current taxable year ending on November 30, 2012 and for its taxable year including the CodeClosing Date;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Fidelity Advisor Series I), Agreement and Plan of Reorganization (Fidelity Advisor Series I)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus Prospectuses and Statement of Additional Information of the Acquiring Fund, dated June 5March 1, 2010, as supplemented, previously furnished to the Acquired Fund Fund, did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at December 31, 2009, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended June 30, 2010. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of December 31, 2009 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since December 31, 2009;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on December 31, 2010;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Contrafund)
Representations and Warranties of the Acquiring Fund. The Trust, on behalf of the Acquiring Fund Fund, represents and warrants to to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, Trust and in good standing under conformity with, the laws of the State The Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It Each of the Trust and the Acquiring Fund has all necessary federal, state, state and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Acthas elected to be, and has met the requirements of subchapter M of Code for treatment as, a “regulated investment company” (“RIC”) within the meaning of Section 851 of the Code at all times since its inception, and will continue to meet such registration requirements at all times through the Closing Date (as defined in Section 7 herein) and thereafter. The Acquiring Fund has not at any time since its inception been liable for, or is in full force and effect;not now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code.
(c) The Prospectus Acquired Fund has been furnished with the Acquiring Fund’s annual report for the fiscal year ended October 31, 2006, and Statement the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, which fairly presents the financial condition and result of Additional Information operations of the Acquiring Fund as of the date indicated, in conformity with generally accepted accounting principles in the United States applied on a consistent basis.
(d) The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those that will be shown as belonging to it on its statement of assets and liabilities as of October 31, 2006, and those incurred in the ordinary course of business as an investment company since such date. As of the Valuation Time (as defined in Section 3(e)), the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time.
(e) The Trust, on behalf of the Acquiring Fund, has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the Board, and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms subject to approval by the Acquired Fund’s shareholders and subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Trust or the Acquiring Fund, threatened against the Trust or the Acquiring Fund which assert liability on the part of the Trust or the Acquiring Fund or which materially affect the financial condition of the Trust or the Acquiring Fund or the Trust’s or the Acquiring Funds’ ability to consummate the Reorganization. Neither the Trust nor the Acquiring Fund is charged with nor, to the best of their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of their business.
(g) Neither the Trust nor the Acquiring Fund is obligated under any provision of the Declaration of Trust or the Trust’s Amended and Restated By-laws dated June 5March 8, 20102005, as supplementedmay be amended (the “Bylaws”), previously furnished and neither is a party to any contract or other commitment or obligation, nor is subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Acquiring Fund and the Acquired Fund may mutually agree that the Acquiring Fund may take such necessary action to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(h) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the N-14 Registration Statement (as defined in sub-section (k) below) or that will not otherwise be disclosed to the Acquired Fund prior to the Valuation Time.
(i) No consent, approval, authorization or order of any court or government authority is required for the consummation by the Acquiring Fund of the Reorganization, except such as may be required under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico).
(j) The registration statement on Form N-14 filed with the Securities and Exchange Commission (the “Commission”) by the Trust on behalf of the Acquiring Fund and relating to the Merger Shares issuable hereunder, and the proxy statement of the Acquired Fund relating to the meeting of the Acquired Fund’s shareholders referred to in Section 6(b) herein (together with the documents incorporated therein by reference, the “Proxy Statement/Prospectus”), and any supplement or amendment thereto or to the documents therein (as amended or supplemented, the “N-14 Registration Statement”), on the effective date of the N-14 Registration Statement, at the time of the shareholders’ meeting referred to in Section 6(b) of this Agreement and at the Closing Date, insofar as it relates to the Acquiring Fund,
(i) did and will comply in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder, and
(ii) does not and do will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;; and the Proxy Statement/Prospectus included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that none of the representations and warranties in this sub-section shall apply to statements in or omissions from the N-14 Registration Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the N-14 Registration Statement.
(dk) Except as disclosed in writing The Acquiring Fund’s investment operations from inception to the Acquired Fund, there are no date hereof have been in compliance in all material legal, administrative, or other proceedings pending or, to respects with the knowledge investment policies and investment restrictions set forth in the N-14 Registration Statement.
(l) All issued and outstanding shares of the Acquiring Fund are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, threatened against it is noted that the Acquiring Fund which assert liability on is a “Massachusetts business trust” and under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the part obligations of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will does not result in, violation of have outstanding any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of security convertible into any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund shares, except that Class B shares of the Acquiring Fund are convertible into Class A shares of the Acquiring Fund in the manner and on the terms described in the N-14 Registration Statement.
(m) The Merger Shares to be issued to the Acquired Fund will pursuant to this Agreement have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class A, Class B and Class C shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;. In regard to the statement above that the Merger Shares will be nonassessable, it is noted that the Trust is a “Massachusetts business trust” and under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of the Trust.
(kn) The execution, delivery, and performance of this Agreement will have been duly authorized At or prior to the Closing Date by all necessary corporate action on Date, the part of Merger Shares to be transferred to the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Acquired Fund enforceable in accordance with its terms, subject for distribution to approval by the shareholders of the Acquired Fund;Fund on the Closing Date will be duly qualified for offering to the public in all states of the United States in which the sale of shares of the Acquired Fund presently are qualified, and there will be a sufficient number of such shares registered under the 1933 Act and, as may be necessary, with each pertinent state securities commission to permit the transfers contemplated by this Agreement to be consummated.
(lo) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate At or prior to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the ProspectusAcquiring Fund will have obtained any and all regulatory, as amended or supplemented, insofar as it relates trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund.
(p) The Acquiring FundFund has filed, will not contain any untrue statement of a material fact or omit intends to file, or has obtained extensions to file, all federal, state a material fact and local tax returns which are required to be stated therein filed by it, and has paid or necessary has obtained extensions to make pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the statements therein not misleading;
(m) The issuance of taxable year in which the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) Closing Date occurs. All of the issued and outstanding shares of beneficial interest tax liabilities of the Acquiring Fund have been offered adequately provided for sale on its books, and sold no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in conformity with excess of those already paid, up to and including the federal securities lawstaxable year in which the Closing Date occurs.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Hancock John Series Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5April 29, 20102017, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at February 28, 2017, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund’s financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund’s results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of February 28, 2017 and those incurred in the ordinary course of the Acquiring Fund’s business as an investment company since February 28, 2017;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund’s officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund’s knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of for all prior taxable years and intends to meet such requirements for its current taxable year ending on February 28, 2017 and its taxable year that includes the CodeClosing Date;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's ’s Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' ’ meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Select Portfolios)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to the Acquired Fund that the statements contained in this paragraph 2.1 are correct and complete in all material respects as of the execution of this Agreement on the date hereof. The Acquiring Fund represents and warrants to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust corporation duly organized, validly existing, and in good standing existing under the laws of the State of DelawareMaryland and is in good standing with the Department, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 ActAct as a non-diversified, closed-end management investment company (File No. 811-[ ]) and such registration has not been revoked or rescinded and is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedingsis qualified as a foreign corporation in every jurisdiction where required, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will extent that failure to so qualify would not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of have a material adverse effect on the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;.
(f) Reserved;
(g) Reserved;
(hc) No consent, approval, authorization, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except (i) such as have been obtained or applied for under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act, and (ii) such as may be required by state securities or blue sky laws and (which term iii) such as used herein shall include may be required under Maryland law for the District acceptance for record of Columbia and Puerto Rico);the Articles of Merger by the Department.
(id) At the time of the Reorganization, the The Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fundis not, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, delivery and performance of this Agreement by the Acquiring Fund will have been duly authorized prior to not result, in violation of the Closing Date by all necessary corporate action on laws of the part State of Maryland or of the charter of the Acquiring Fund (the “Acquiring Fund Charter”) or the Bylaws, as amended (the “Acquiring Fund Bylaws”), of the Acquiring Fund, or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, and the execution, delivery and performance of this Agreement by the Acquiring Fund will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(e) The Acquiring Fund has been furnished with the Acquired Fund’s Annual Report to Stockholders for the year ended [ ], 2015.
(f) The Acquired Fund has been furnished with the Acquiring Fund’s Annual Report to Stockholders for the year ended [December 31, 2015].
(g) The Acquiring Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the Acquiring Fund Board, and, subject to stockholder approval, this Agreement constitutes a valid and binding obligation of the Acquiring Fund contract enforceable in accordance with its terms, subject to approval the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto.
(h) No material litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending (in which service of process has been received) or to its knowledge threatened against the Acquiring Fund or any properties or assets held by it. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings which would materially and adversely affect its business and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body which materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
(i) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the Registration Statement (as defined in paragraph 2.1(n) below) or will not be otherwise disclosed to the Acquired Fund prior to the Effective Date.
(j) Since [December 31, 2015] there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business and the Acquiring Fund has no known liabilities of a material amount, contingent or otherwise, required to be disclosed in a balance sheet with GAAP other than those shown on the Acquiring Fund’s statements of assets, liabilities and capital referred to above, those incurred in the ordinary course of its business as an investment company since [December 31, 2015], and those incurred in connection with the Merger. Prior to the Effective Date, the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued. For purposes of this paragraph 2.1(j), a decline in net asset value per share of the Acquiring Fund due to declines in market values of securities in the Acquiring Fund’s portfolio or the discharge of the Acquiring Fund liabilities will not constitute a material adverse change.
(k) All material federal and other tax returns and information reports of the Acquiring Fund required by law to have been filed shall have been timely filed (including any extensions) and are or will be correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund’s knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns. All tax liabilities of the Acquiring Fund have been adequately provided for on its books, and no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the shareholders Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the Acquired Fund;taxable year in which the Effective Date occurs.
(l) The Acquiring Fund has elected to be treated as a regulated investment company (a “RIC”) for U.S. federal income tax purposes and for each taxable year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification as a RIC and has been eligible to and has computed its federal income tax under Section 852 of the Code. The Acquiring Fund intends to continue to meet such requirements and to so compute its federal income tax for each subsequent taxable year.
(m) The Acquiring Fund has not taken any action and does not know of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(n) The registration statement has been filed with the Securities and Exchange Commission (the “SEC”) by the Acquiring Fund on Form N-14 relating to the Acquiring Fund Common Stock to be issued pursuant to this Agreement, and any supplement or amendment thereto or to the documents therein (as amended, the “Registration Statement and the Proxy Statement”), on the effective date of the Registration Statement Statement, at the time of the stockholders’ meeting referred to in Article 4 of this Agreement and at the Effective Date, insofar as they relate it relates to the Acquiring Fund, Fund (i) shall have complied or will comply in all material respects with the provisions of the 1933 Act, the 1934 Act, Act and the 1940 Act, Act and the rules and regulations thereunder, thereunder and (ii) do did not or will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended prospectus included therein did not or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;; provided, however, that the representations and warranties in this paragraph 2.1(n) shall not apply to statements in, or omissions from, the Registration Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the Registration Statement.
(mo) All issued and outstanding shares of Acquiring Fund Common Stock (i) have been offered and sold in compliance in all material respects with applicable registration requirements of the 1933 Act and state securities laws, (ii) are, and on the Effective Date will be, duly and validly issued and outstanding, fully paid and non-assessable, and (iii) will be held at the time of the Closing by the persons and in the amounts set forth in the records of the transfer agent. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any shares of Acquiring Fund Common Stock, nor is there outstanding any security convertible into, or exchangeable for, any shares of Acquiring Fund Common Stock.
(p) The issuance Acquiring Fund is authorized to issue 100,000,000 shares of capital stock, par value $0.001 per share, all of which shares are classified as Common Stock (the “Acquiring Fund Common Stock”); each outstanding share of which is fully paid, non-assessable and has full voting rights.
(q) The offer and sale of the shares of Acquiring Fund Shares Common Stock to be issued pursuant to this Agreement will be in compliance with all applicable federal and state securities laws; and.
(nr) All of At or prior to the issued Effective Date, the Acquiring Fund will have obtained any and outstanding all regulatory, board and stockholder approvals necessary to issue the shares of beneficial interest Acquiring Fund Common Stock to be issued pursuant to this Agreement.
(s) The books and records of the Acquiring Fund have been offered for sale made available to the Acquired Fund are substantially true and sold in conformity correct and contain no material misstatements or omissions with respect to the federal securities lawsoperations of the Acquiring Fund.
(t) The Acquiring Fund Board has not adopted a resolution electing to be subject to the Maryland Business Combination Act or the Maryland Control Share Acquisition Act.
Appears in 1 contract
Samples: Merger Agreement (Western Asset Emerging Markets Debt Fund Inc.)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5May 30, 20102014, as supplemented, previously furnished to the Acquired Fund did did, not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at March 31, 2014, have been audited by Deloitte & Touche LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of March 31, 2014 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since March 31, 2014;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on March 31, 2015;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement filed with the Securities and Exchange Commission (Commission) by the Proxy Statement, Trust on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, Form N-1A (i) comply complies in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Aberdeen Street Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus Prospectuses and Statement Statements of Additional Information of the Acquiring Fund, dated June 5April 30, 20102014, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at December 31, 2013, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of December 31, 2013 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since December 31, 2013;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on December 31, 2015;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Variable Insurance Products Iii)
Representations and Warranties of the Acquiring Fund. The Except as has been fully disclosed to the Acquired Fund as of the date hereof in a written instrument executed by an officer of the Acquiring Fund, Acquiring Fund represents and warrants to and agrees with the Acquired Fund thatas follows:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of DelawareDelaware with power under its Agreement and Declaration of Trust and Amended and Restated By-Laws, and has the power each as amended from time to time, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;it is presently conducted.
(b) The Acquiring Fund Trust is an openregistered with the Commission as a closed-end, end management investment company duly registered under the 1940 Act, and such the registration of the Acquiring Fund Shares under the 1933 Act is in full force and effect;.
(c) The Prospectus Acquiring Fund has not taken any action and Statement does not know of Additional Information any fact or circumstance that could reasonably be expected to prevent the Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;Code.
(d) Except as disclosed in writing to At the Acquired FundEffective Time, there are no all material legalFederal and other tax returns, administrativedividend reporting forms, or and other proceedings pending or, to the knowledge tax-related reports of the Acquiring FundFund required by law to have been filed by such date (including any extensions, threatened against the Acquiring Fund which assert liability if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be shown as due on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis said returns and reports shall have been paid or provision shall have been made for the institution of payment thereof and no such proceedingsreturn is currently under audit and no assessment has been asserted, except as otherwise disclosed in writing, with respect to the Acquired Fund;such returns.
(e) The Acquiring Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable year since its commencement of operations (including the taxable year ending on the Closing Date), the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code and expects to continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for, nor is notnow liable for, and any material income or excise tax pursuant to Sections 852 or 4982 of the executionCode. There is no other material tax liability (including any foreign, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument state or By-laws, or, to the knowledge local tax liability) of the Acquiring Fund except as set forth and accrued on the Acquiring Fund, ’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply. The Acquiring Fund will not be subject to corporate-level taxation on the sale of any agreement, indenture, instrument, contract, lease, or other undertaking to which assets currently held by it as a result of the Acquiring Fund is a party or by which application of Section 337(d) of the Acquiring Fund is bound or result in Code and the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;regulations thereunder.
(f) Reserved;The Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its common shares of beneficial interest. To the actual knowledge of its officers, the Acquiring Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder. The Acquiring Fund is not under audit by any federal, state or local taxing authority and there are no actual or proposed tax deficiencies with respect to the Acquiring Fund that have been presented to the Acquiring Fund in writing.
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities laws.
(h) The shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information of the Acquiring Fund used at all times prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 ActAct and the rules and regulations of the Commission thereunder and does not or did not at the time of its use include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, and state securities or blue sky laws (in light of the circumstances under which term as used herein shall include the District of Columbia and Puerto Rico);they were made, not materially misleading.
(i) At The Acquiring Fund is not engaged currently, and the time execution, delivery and performance of this Agreement will not result, in: (i) a violation of federal securities laws (including the Reorganization1940 Act) or of Delaware law or a material violation of its Agreement and Declaration of Trust and Amended and Restated By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund will be is a regulated investment company as defined in Section 851 party or by which it is bound, or (ii) the acceleration of any obligation, or the Code;imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(j) As Except as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund or any of the Closing DateAcquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the shares Acquiring Fund’s financial condition or the conduct of beneficial interest its business. The Acquiring Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated.
(k) The Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquiring Fund at October 31, 2022, have been audited by KPMG LLP, independent registered public accounting firm, and are in accordance with GAAP consistently applied, and such statements present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be issued to reflected on a balance sheet (including the Acquired notes thereto) in accordance with GAAP as of such date not disclosed therein.
(l) Since October 31, 2022, there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund will have been duly authorized andof indebtedness, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as otherwise disclosed to by the Acquiring Fund. For the purposes of this subparagraph (l), a decline in the Fund's Statement net asset value per share of Additional Information) Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, and no shareholder the discharge of the Acquiring Fund’s liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;shall not constitute a material adverse change.
(km) The execution, delivery, delivery and performance of this Agreement will have been duly authorized prior to the Closing Date Effective Time by all necessary corporate action action, if any, on the part of the Trustees of the Acquiring Fund, and and, subject to the approval of the shareholders of the Acquiring Fund, this Agreement constitutes will constitute a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject subject, as to approval by enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The Acquiring Fund Shares to be issued and delivered to the shareholders Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant to the terms of this Agreement, will at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquiring Fund;, nor is there outstanding any security convertible into any of the Acquiring Fund’s Shares.
(lo) The Registration Statement and the Proxy Statement/Prospectus (as defined in paragraph 5.6), on the effective date of the Registration Statement and insofar as they relate it relates to the Acquiring Fund, will, at the Effective Time: (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time therein, in light of the shareholders' meeting referred to circumstances under which such statements were made, not materially misleading and (ii) comply in Section 7 and on all material respects with the Closing Dateprovisions of the 1933 Act, the Prospectus1934 Act and the 1940 Act and the rules and regulations thereunder; provided, as amended however, that the representations and warranties of this subparagraph (o) shall not apply to statements in or supplemented, insofar as it relates to omissions from the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be Proxy Statement/Prospectus made in compliance with all applicable federal securities laws; and
(n) All of the issued reliance upon and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with information that was furnished by the federal securities lawsAcquired Fund for use therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Abrdn Global Dynamic Dividend Fund)
Representations and Warranties of the Acquiring Fund. The Except as has been fully disclosed to the Acquired Fund as of the date hereof in a written instrument executed by an officer of the Acquiring Fund, Acquiring Fund represents and warrants to and agrees with the Acquired Fund thatas follows:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of DelawareMaryland with power under its Amended and Restated Declaration of Trust and Amended and Restated By-Laws, and has the power each as amended from time to time, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;it is presently conducted.
(b) The Acquiring Fund Trust is an openregistered with the Commission as a closed-end, end management investment company duly registered under the 1940 Act, and such the registration of the Acquiring Fund Shares under the 1933 Act is in full force and effect;.
(c) The Prospectus Acquiring Fund has not taken any action and Statement does not know of Additional Information any fact or circumstance that could reasonably be expected to prevent the Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;Code.
(d) Except as disclosed in writing to At the Acquired FundEffective Time, there are no all material legalFederal and other tax returns, administrativedividend reporting forms, or and other proceedings pending or, to the knowledge tax-related reports of the Acquiring FundFund required by law to have been filed by such date (including any extensions, threatened against the Acquiring Fund which assert liability if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be shown as due on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis said returns and reports shall have been paid or provision shall have been made for the institution of payment thereof and no such proceedingsreturn is currently under audit and no assessment has been asserted, except as otherwise disclosed in writing, with respect to the Acquired Fund;such returns.
(e) The Acquiring Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable year since its commencement of operations (including the taxable year ending on the Closing Date), the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code and expects to continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for, nor is notnow liable for, and any material income or excise tax pursuant to Sections 852 or 4982 of the executionCode. There is no other material tax liability (including any foreign, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument state or By-laws, or, to the knowledge local tax liability) of the Acquiring Fund except as set forth and accrued on the Acquiring Fund, ’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply. The Acquiring Fund will not be subject to corporate-level taxation on the sale of any agreement, indenture, instrument, contract, lease, or other undertaking to which assets currently held by it as a result of the Acquiring Fund is a party or by which application of Section 337(d) of the Acquiring Fund is bound or result in Code and the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;regulations thereunder.
(f) Reserved;The Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its common shares of beneficial interest. To the actual knowledge of its officers, the Acquiring Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder. The Acquiring Fund is not under audit by any federal, state or local taxing authority and there are no actual or proposed tax deficiencies with respect to the Acquiring Fund that have been presented to the Acquiring Fund in writing.
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities laws.
(h) The shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information of the Acquiring Fund used at all times prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 ActAct and the rules and regulations of the Commission thereunder and does not or did not at the time of its use include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, and state securities or blue sky laws (in light of the circumstances under which term as used herein shall include the District of Columbia and Puerto Rico);they were made, not materially misleading.
(i) At The Acquiring Fund is not engaged currently, and the time execution, delivery and performance of this Agreement will not result, in: (i) a violation of federal securities laws (including the Reorganization1940 Act) or of Maryland law or a material violation of its Amended and Restated Declaration of Trust and Amended and Restated By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund will be is a regulated investment company as defined in Section 851 party or by which it is bound, or (ii) the acceleration of any obligation, or the Code;imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(j) As Except as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund or any of the Closing DateAcquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the shares Acquiring Fund’s financial condition or the conduct of beneficial interest its business. The Acquiring Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated.
(k) The Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquiring Fund at September 30, 2022, have been audited by KPMG LLP, independent registered public accounting firm, and are in accordance with GAAP consistently applied, and such statements present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be issued to reflected on a balance sheet (including the Acquired notes thereto) in accordance with GAAP as of such date not disclosed therein.
(l) Since September 30, 2022, there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund will have been duly authorized andof indebtedness, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as otherwise disclosed to by the Acquiring Fund. For the purposes of this subparagraph (l), a decline in the Fund's Statement net asset value per share of Additional Information) Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, and no shareholder the discharge of the Acquiring Fund’s liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;shall not constitute a material adverse change.
(km) The execution, delivery, delivery and performance of this Agreement will have been duly authorized prior to the Closing Date Effective Time by all necessary corporate action action, if any, on the part of the Trustees of the Acquiring Fund, and and, subject to the approval of the shareholders of the Acquiring Fund, this Agreement constitutes will constitute a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject subject, as to approval by enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The Acquiring Fund Shares to be issued and delivered to the shareholders Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant to the terms of this Agreement, will at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquiring Fund;, nor is there outstanding any security convertible into any of the Acquiring Fund’s Shares.
(lo) The Registration Statement and the Proxy Statement/Prospectus (as defined in paragraph 5.6), on the effective date of the Registration Statement and insofar as they relate it relates to the Acquiring Fund, will, at the Effective Time: (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time therein, in light of the shareholders' meeting referred to circumstances under which such statements were made, not materially misleading and (ii) comply in Section 7 and on all material respects with the Closing Dateprovisions of the 1933 Act, the Prospectus1934 Act and the 1940 Act and the rules and regulations thereunder; provided, as amended however, that the representations and warranties of this subparagraph (o) shall not apply to statements in or supplemented, insofar as it relates to omissions from the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be Proxy Statement/Prospectus made in compliance with all applicable federal securities laws; and
(n) All of the issued reliance upon and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with information that was furnished by the federal securities lawsAcquired Fund for use therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Abrdn Global Infrastructure Income Fund)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-–end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus Prospectuses and Statement Statements of Additional Information of the Acquiring Fund, dated June 5November 29, 2010, as supplemented, 2017 previously furnished to the Acquired Fund did did, not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-–laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at September 30, 2017, have been audited by Deloitte & Touche LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund’s financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund’s results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of September 30, 2017 and those incurred in the ordinary course of the Acquiring Fund’s business as an investment company since September 30, 2017;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund’s officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund’s knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on September 30, 2018;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement ’s Statements of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' ’ meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Charles Street Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5December 30, 20102009, as supplemented, previously furnished to the Acquired Fund Fund, did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at October 31, 2009, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended April 30, 2010. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of October 31, 2009 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since October 31, 2009;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of for all prior taxable years and intends to meet such requirements for its current taxable year ending on October 31, 2010 and for the Codetaxable year that includes the Closing Date;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Reorganization Agreement (Fidelity Investment Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-–end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus Prospectuses and Statement Statements of Additional Information of the Acquiring Fund, dated June 5November 29, 20102017, as supplemented, previously furnished to the Acquired Fund did did, not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-–laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at September 30, 2017, have been audited by Deloitte & Touche LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund’s financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund’s results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of September 30, 2017 and those incurred in the ordinary course of the Acquiring Fund’s business as an investment company since September 30, 2017;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund’s officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund’s knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on September 30, 2018;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement ’s Statements of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' ’ meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Charles Street Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Fidelity Concord Street Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Fidelity Concord Street Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5April 29, 20102009, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at February 28, 2009, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended August 31, 2009. Said Statements of Assets and Liabilities and Schedule of Investments fairly present its financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect its results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of February 28, 2009, and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since February 28, 2009;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on February 28, 2010;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The registration statement (Registration Statement Statement) filed with the Securities and the Proxy Statement, Exchange Commission (Commission) by Fidelity Concord Street Trust on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, Form N-1A (i) comply complies in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Concord Street Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5February 24, 20102009, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at October 31, 2008, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present its financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect its results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its Statement of Assets and Liabilities as of October 31, 2008 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since October 31, 2008;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on October 31, 2009;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The registration statement (Registration Statement Statement) filed with the Securities and Exchange Commission (Commission) by the Proxy Statement, Trust on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, Form N-1A (i) comply complies in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;and
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Reorganization Agreement (Fidelity Beacon Street Trust)
Representations and Warranties of the Acquiring Fund. The Trust, on behalf of the Acquiring Fund Fund, represents and warrants to to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, Trust and in good standing under conformity with, the laws of the State The Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It Each of the Trust and the Acquiring Fund has all necessary federal, state, state and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Acthas elected to be, and has met the requirements of subchapter M of Code for treatment as, a "regulated investment company" ("RIC") within the meaning of Section 851 of the Code at all times since its inception, and will continue to meet such registration requirements at all times through the Closing Date (as defined in Section 7 herein) and thereafter. The Acquiring Fund has not at any time since its inception been liable for, or is in full force and effect;not now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code.
(c) The Prospectus Acquired Fund has been furnished with the Acquiring Fund's annual report for the fiscal year ended October 31, 2006, and Statement the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, which fairly presents the financial condition and result of Additional Information operations of the Acquiring Fund as of the date indicated, in conformity with generally accepted accounting principles in the United States applied on a consistent basis.
(d) The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those that will be shown as belonging to it on its statement of assets and liabilities as of October 31, 2006, and those incurred in the ordinary course of business as an investment company since such date. As of the Valuation Time (as defined in Section 3(e)), the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued as of such time.
(e) The Trust, on behalf of the Acquiring Fund, has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the Board, and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms subject to approval by the Acquired Fund's shareholders and subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(f) There are no material legal, administrative or other proceedings pending or, to the knowledge of the Trust or the Acquiring Fund, threatened against the Trust or the Acquiring Fund which assert liability on the part of the Trust or the Acquiring Fund or which materially affect the financial condition of the Trust or the Acquiring Fund or the Trust's or the Acquiring Funds' ability to consummate the Reorganization. Neither the Trust nor the Acquiring Fund is charged with nor, to the best of their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, state or local law or regulation or administrative ruling relating to any aspect of their business.
(g) Neither the Trust nor the Acquiring Fund is obligated under any provision of the Declaration of Trust or the Trust's Amended and Restated By-laws dated June 5March 8, 20102005, as supplementedmay be amended (the "By-laws"), previously furnished and neither is a party to any contract or other commitment or obligation, nor is subject to any order or decree, which would be violated by its execution of or performance under this Agreement, except insofar as the Acquiring Fund and the Acquired Fund may mutually agree that the Acquiring Fund may take such necessary action to amend such contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization.
(h) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the N-14 Registration Statement (as defined in sub-section (k) below) or that will not otherwise be disclosed to the Acquired Fund prior to the Valuation Time.
(i) No consent, approval, authorization or order of any court or government authority is required for the consummation by the Acquiring Fund of the Reorganization, except such as may be required under the Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act") and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia and Puerto Rico).
(j) The registration statement on Form N-14 filed with the Securities and Exchange Commission (the "Commission") by the Trust on behalf of the Acquiring Fund and relating to the Merger Shares issuable hereunder, and the proxy statement of the Acquired Fund relating to the meeting of the Acquired Fund's shareholders referred to in Section 6(b) herein (together with the documents incorporated therein by reference, the "Proxy Statement/Prospectus"), and any supplement or amendment thereto or to the documents therein (as amended or supplemented, the "N-14 Registration Statement"), on the effective date of the N-14 Registration Statement, at the time of the shareholders' meeting referred to in Section 6(b) of this Agreement and at the Closing Date, insofar as it relates to the Acquiring Fund,
(i) did and will comply in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder, and
(ii) does not and do will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading;; and the Proxy Statement/Prospectus included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that none of the representations and warranties in this sub-section shall apply to statements in or omissions from the N-14 Registration Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the N-14 Registration Statement.
(dk) Except as disclosed in writing The Acquiring Fund's investment operations from inception to the Acquired Fund, there are no date hereof have been in compliance in all material legal, administrative, or other proceedings pending or, to respects with the knowledge investment policies and investment restrictions set forth in the N-14 Registration Statement.
(l) All issued and outstanding shares of the Acquiring Fund are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, threatened against it is noted that the Acquiring Fund which assert liability on is a "Massachusetts business trust" and under Massachusetts' law, shareholders could, under certain circumstances, be held personally liable for the part obligations of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will does not result in, violation of have outstanding any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of security convertible into any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund shares, except that Class B shares of the Acquiring Fund are convertible into Class A shares of the Acquiring Fund in the manner and on the terms described in the N-14 Registration Statement.
(m) The Merger Shares to be issued to the Acquired Fund will pursuant to this Agreement have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class A, Class B and Class C shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;. In regard to the statement above that the Merger Shares will be nonassessable, it is noted that the Trust is a "Massachusetts business trust" and under Massachusetts' law, shareholders could, under certain circumstances, be held personally liable for the obligations of the Trust.
(kn) The execution, delivery, and performance of this Agreement will have been duly authorized At or prior to the Closing Date by all necessary corporate action on Date, the part of Merger Shares to be transferred to the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Acquired Fund enforceable in accordance with its terms, subject for distribution to approval by the shareholders of the Acquired Fund;Fund on the Closing Date will be duly qualified for offering to the public in all states of the United States in which the sale of shares of the Acquired Fund presently are qualified, and there will be a sufficient number of such shares registered under the 1933 Act and, as may be necessary, with each pertinent state securities commission to permit the transfers contemplated by this Agreement to be consummated.
(lo) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate At or prior to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the ProspectusAcquiring Fund will have obtained any and all regulatory, as amended or supplemented, insofar as it relates trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund.
(p) The Acquiring FundFund has filed, will not contain any untrue statement of a material fact or omit intends to file, or has obtained extensions to file, all federal, state a material fact and local tax returns which are required to be stated therein filed by it, and has paid or necessary has obtained extensions to make pay, all federal, state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the statements therein not misleading;
(m) The issuance of taxable year in which the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) Closing Date occurs. All of the issued and outstanding shares of beneficial interest tax liabilities of the Acquiring Fund have been offered adequately provided for sale on its books, and sold no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local tax authority for taxes in conformity with excess of those already paid, up to and including the federal securities lawstaxable year in which the Closing Date occurs.
Appears in 1 contract
Samples: Reorganization Agreement (Hancock John Series Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5December 29, 20102012, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at October 31, 2013, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended April 30, 2013. Said Statements of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of October 31, 2013 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since October 31, 2013;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on October 31, 2014;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Investment Trust)
Representations and Warranties of the Acquiring Fund. The Except as has been fully disclosed to the Acquired Fund as of the date hereof in a written instrument executed by an officer of the Acquiring Fund, Acquiring Fund represents and warrants to and agrees with the Acquired Fund thatas follows:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of DelawareMaryland with power under its Amended and Restated Declaration of Trust and Amended and Restated By-Laws, and has the power each as amended from time-to-time, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;it is presently conducted.
(b) The Acquiring Fund Trust is an openregistered with the Commission as a closed-end, end management investment company duly registered under the 1940 Act, and such registration is in full force and effect;the Acquiring Fund Shares have been registered under the 1933 Act.
(c) The Prospectus Acquiring Fund has not taken any action and Statement does not know of Additional Information any fact or circumstance that could reasonably be expected to prevent the Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;Code.
(d) Except as disclosed in writing to At the Acquired FundEffective Time, there are no all material legalFederal and other tax returns, administrativedividend reporting forms, or and other proceedings pending or, to the knowledge tax-related reports of the Acquiring FundFund required by law to have been filed by such date (including any extensions, threatened against the Acquiring Fund which assert liability if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be shown as due on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis said returns and reports shall have been paid or provision shall have been made for the institution of payment thereof, and no such proceedingsreturn is currently under audit, except as otherwise disclosed and no assessment has been asserted, in writing, with respect to the Acquired Fund;such returns.
(e) The Acquiring Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable year since its commencement of operations (including the period through the Closing Date), the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code and expects to continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for, nor is notnow liable for, and any material income or excise tax pursuant to Sections 852 or 4982 of the executionCode. There is no other material tax liability (including any foreign, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument state or By-laws, or, to the knowledge local tax liability) of the Acquiring Fund except as set forth and accrued on the Acquiring Fund, ’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply. The Acquiring Fund will not be subject to corporate-level taxation on the sale of any agreement, indenture, instrument, contract, lease, or other undertaking to which assets currently held by it as a result of the Acquiring Fund is a party or by which application of Section 337(d) of the Acquiring Fund is bound or result in Code and the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;regulations thereunder.
(f) Reserved;The Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its common shares of beneficial interest. To the actual knowledge of its officers, the Acquiring Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld and is not liable for any penalties which could be imposed thereunder. The Acquiring Fund is not under audit by any federal, state or local taxing authority, and there are no actual or proposed tax deficiencies with respect to the Acquiring Fund that have been presented to the Acquiring Fund in writing.
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities laws.
(h) The shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information of the Acquiring Fund used at all times prior to the date of this Agreement conform or conformed at the time of their use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 ActAct and the rules and regulations of the Commission thereunder and do not or did not at the time of their use include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, and state securities or blue sky laws (in light of the circumstances under which term as used herein shall include the District of Columbia and Puerto Rico);they were made, not materially misleading.
(i) At the time of the Reorganization, the The Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fundis not engaged currently, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, delivery and performance of this Agreement will not result, in: (i) a violation of federal securities laws (including the 1940 Act) or of Maryland law in any material respect or a material violation of its Amended and Restated Declaration of Trust and Amended and Restated By-Laws, each as amended from time-to-time, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(j) Except as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund or any of the Acquiring Fund’s properties or assets that, if adversely determined, is reasonably likely to materially and adversely affect the Acquiring Fund’s financial condition or the conduct of its business. The Acquiring Fund knows of no facts which are reasonably likely to form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated.
(k) The Statement of Assets and Liabilities, Statement of Operations, Statements of Changes in Net Assets and Schedule of Investments of the Acquiring Fund at September 30, 2023, have been audited by KPMG LLP, independent registered public accounting firm, and are in accordance with GAAP consistently applied, and such statements present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
(l) Since September 30, 2023, there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness, except as otherwise disclosed to the Acquired Fund. For the purposes of this subparagraph (l), a decline in net asset value per share of Acquiring Fund shares due to declines in market values of securities held by the Acquiring Fund, the discharge of the Acquiring Fund’s liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquiring Fund shall not constitute a material adverse change.
(m) The execution, delivery and performance of this Agreement have been duly authorized prior to the Closing Date by all necessary corporate action action, if any, on the part of the Trustees of the Acquiring Fund, and this Agreement constitutes will constitute a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject subject, as to approval by enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The Acquiring Fund Shares to be issued and delivered to the shareholders Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant to the terms of this Agreement, will at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquiring Fund;, nor is there outstanding any security convertible into any of the Acquiring Fund’s shares.
(lo) The Registration Statement and the Proxy Statement/Prospectus (as defined in paragraph 5.6), on the effective date of the Registration Statement and insofar as they relate it relates to the Acquiring Fund, will, as of the effective time of the Registration Statement in which it is included and any time prior to the Effective Time: (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time therein, in light of the shareholders' meeting referred to circumstances under which such statements were made, not materially misleading and (ii) comply in Section 7 and on all material respects with the Closing Dateprovisions of the 1933 Act, the Prospectus, as amended or supplemented, insofar as it relates to 1934 Act and the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make 1940 Act and the statements therein not misleading;
(m) The issuance rules and regulations of the Acquiring Fund Shares pursuant Commission thereunder; provided, however, that the representations and warranties of this subparagraph (o) shall not apply to this Agreement will be statements in compliance with all applicable federal securities laws; and
(n) All of or omissions from the issued Proxy Statement/Prospectus made in reliance upon and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with information that was furnished by the federal securities lawsAcquired Fund for use therein.
Appears in 1 contract
Samples: Reorganization Agreement (Abrdn Global Infrastructure Income Fund)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5May 30, 20102014, as supplemented, previously furnished to the Acquired Fund did did, not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at March 31, 2014, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of March 31, 2014 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since March 31, 2014;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on March 31, 2015;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement filed with the Securities and Exchange Commission (Commission) by the Proxy Statement, Trust on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, Form N-1A (i) comply complies in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Aberdeen Street Trust)
Representations and Warranties of the Acquiring Fund. The Except as has been fully disclosed to the Target Fund in a written instrument executed by an officer of the Trust, the Acquiring Fund represents and warrants to and agrees with the Acquired Target Fund thatas follows:
(a) 4.2.1 The Acquiring Fund is a duly established series of the Acquiring Fund Trust, which is a statutory business trust duly organized, validly existing, and in good standing under the laws of the State of DelawareDelaware with power under its Declaration of Trust and By-Laws, and has the power each as amended from time to time, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to it is presently conducted.
4.2.2 At the Closing DateEffective Time, the Acquiring Fund Trust will have carried on no business activity and will have had no assets or liabilities other than be registered with the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is Commission as an open-end, end management investment company duly registered under the 1940 Act, and such the registration is of the Acquiring Fund Shares under the 1933 Act will be in full force and effect;.
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) 4.2.3 No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities laws.
4.2.4 The current prospectus, statement of additional information, shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information of the Acquiring Fund used at all times prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 Act, Act and state securities the rules and regulations of the Commission thereunder and does not or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At did not at the time of its use include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the Reorganizationstatements therein, in light of the circumstances under which they were made, not materially misleading.
4.2.5 At the Effective Time, the Acquiring Fund will be have good and marketable title to the Acquiring Fund’s assets, free of any liens or other encumbrances.
4.2.6 The Acquiring Fund is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in (i) a regulated investment company as defined in Section 851 violation of Delaware law or a material violation of the Code;Declaration of Trust and By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(j) As 4.2.7 Except as otherwise disclosed to and accepted by the Target Fund in writing, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund, or any of the Closing DateAcquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the shares Acquiring Fund’s financial condition or the conduct of beneficial interest its business. The Acquiring Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated.
4.2.8 The Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquiring Fund at March 31, 2012 have been audited by Ernst & Young LLP, independent registered public accounting firm, and are in accordance with GAAP consistently applied, and such statements (copies of which have been furnished to the Target Fund) present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be issued reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
4.2.9 Since March 31, 2012, there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Target Fund in writing. For the purposes of this subparagraph 4.2.9, a decline in net asset value per share of Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, the discharge of the Acquiring Fund’s liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Target Fund shall not constitute a material adverse change.
4.2.10 At the Effective Time, all Federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquiring Fund required by law to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in best of the Fund's Statement knowledge of Additional Information) by the Acquiring Fund, and no shareholder such return is currently under audit and no assessment has been asserted with respect to such returns.
4.2.11 At the end of its first taxable year since its commencement of operations, the Acquiring Fund will have any preemptive right properly elected to be treated as a “regulated investment company” under Subchapter M of subscription or purchase the Code. The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et seq. of the Code in respect thereof;of each taxable year since its commencement of operations, and will continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for, nor is now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. There is no other tax liability (including, any foreign, state, or local tax liability) except as set forth and accrued on the Acquiring Fund’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply. The Acquiring Fund will not be subject to corporate-level taxation on the sale of any assets currently held by it as a result of the application of Section 337(d) of the Code and the regulations thereunder. All dividends paid by the Acquiring Fund at any time prior to the Closing Date shall have been deductible pursuant to the dividends paid deduction under Section 562 of the Code. The Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its shares of beneficial interest and has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder.
(k) 4.2.12 The execution, delivery, delivery and performance of this Agreement will have been duly authorized prior to the Closing Date Effective Time by all necessary corporate action action, if any, on the part of the Trustees of the Trust, on behalf of the Acquiring Fund, and this Agreement constitutes will constitute a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject subject, as to approval enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
4.2.13 The Acquiring Fund Shares to be issued and delivered to the Target Fund, for the account of the Target Fund Shareholders, pursuant to the terms of this Agreement, will at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the shareholders of the Acquired Fund;
(l) The Registration Statement Trust and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply will have been issued in every jurisdiction in compliance in all material respects with the provisions applicable registration requirements and applicable securities laws. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the 1933 Actshares of the Acquiring Fund, nor is there outstanding any security convertible into any of the 1934 ActAcquiring Fund’s shares.
4.2.14 The Information Statement, insofar as it relates to the Acquiring Fund and the Acquiring Fund Shares, will, and at the 1940 Act, and the rules and regulations thereunder, and Effective Time (iii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time therein, in light of the shareholders' meeting referred to circumstances under which such statements were made, not materially misleading, and (ii) comply in Section 7 and on all material respects with the Closing Dateprovisions of the 1933 Act, the Prospectus1934 Act, as amended and the 1940 Act and the rules and regulations thereunder; provided, however, that the representations and warranties of this subparagraph 4.2.14 shall not apply to statements in or supplemented, insofar as it relates to omissions from the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be Information Statement made in compliance with all applicable federal securities laws; and
(n) All of the issued reliance upon and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with information that was furnished by the federal securities lawsTarget Fund for use therein.
Appears in 1 contract
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 528, 20102014, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at April 30, 2014, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended October 31, 2014. Said Statements of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of April 30, 2014 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since April 30, 2014;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of for all prior taxable years and intends to meet such requirements for its current taxable year ending on April 30, 2015 and its taxable year that includes the CodeClosing Date;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Newbury Street Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund thatas follows:
(a) 5.1 The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, existing and in good standing under the laws of the State of Delaware, and has the power with powers under its Charter, as amended, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now it is being conducted as of the date hereof. The Acquiring Fund is a registered investment company classified as an open-end management company, and its registration with the Commission as an investment company under the 1940 Act, and the registration of the Acquiring Fund Shares under the 1933 Act, are in full force and effect.
5.2 The execution, delivery and performance of this Agreement, and the transactions contemplated herein, have been duly authorized by all necessary trust action on the part of the Board of Trustees of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to carry out general equity principles.
5.3 No consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated herein, except such as may be required under the 1933 Act, the 1934 Act, the 1940 Act and state securities laws.
5.4 The prospectus and statement of additional information of the Acquiring Fund, dated [•], as amended and supplemented to date, are true, correct and complete, conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.
5.5 The Acquiring Fund is not engaged currently, and the execution, delivery and performance of this Agreement will not result in, (a) a material violation of the Charter or bylaws of the Acquiring Fund, as applicable, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, or (b) the acceleration of any material obligation, or the imposition of any material penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
5.6 Except as set forth in this Agreement; Prior , the Acquiring Fund is not party to any outstanding material contracts other than those contracts ordinary in the conduct of its business.
5.7 No legal, administrative or other proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund or any of the Acquiring Fund’s properties or assets, that, if adversely determined, would materially and adversely affect its financial condition or the conduct of its business. The Acquiring Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body which materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
5.8 The Statement of Assets and Liabilities, Statement of Operations, Statement of Changes in Net Assets and Schedule of Investments of the Acquiring Fund at [•] have been audited by [Deloitte & Touche LLP] and are in accordance with GAAP consistently applied. Such statements, and the Statement of Assets and Liabilities, Statement of Operations, Statement of Changes in Net Assets and Schedule of Investments of the Acquiring Fund for the six months ended [•], true and correct copies of which have been furnished to the Fund, on behalf of the Acquired Fund, present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent, accrued or other liabilities of the Acquiring Fund required to be reflected on a balance sheet, including the notes thereto, in accordance with GAAP as of such date that are not disclosed therein.
5.9 Since [•], there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness, other than the incurrence of indebtedness in the ordinary course of business in accordance with the Acquiring Fund’s investment policies. For the purposes of this Section 5.9, a decline in net asset value per share of Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, the discharge of Acquiring Fund liabilities, or the redemption of Acquiring Fund Shares by shareholders of the Acquiring Fund shall not constitute a material adverse change.
5.10 On the Closing Date, all federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquiring Fund required by law to have been filed by such date, including any extensions, shall have been filed and are or will be correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof and, to the best of the Acquiring Fund’s knowledge, no such return is currently under audit and no assessment has been proposed or asserted with respect to such returns.
5.11 For each taxable year of its operation (including the taxable year ending on the Closing Date), the Acquiring Fund has met or meets the requirements of Subchapter M of the Code for qualification as a regulated investment company, has elected to be treated as such, and has been or is eligible to and has computed or will compute its federal income tax under Section 852 of the Code. For each taxable year of its operation prior to the taxable year that includes the Closing Date, the Acquiring Fund has distributed (or will distribute) substantially all of (a) its investment company taxable income (as defined in the Code) (computed without regard to any deduction for dividends paid), (b) the excess, if any, of its interest income excludible from gross income under Section 103(a) of the Code over its deductions disallowed under Section 265 and Section 171(a)(2) of the Code, and (c) any net capital gain (as defined in the Code) (after reduction for any capital loss carryover) that has been accrued or recognized through the Closing Date such that for all tax periods ending on or before the Closing Date, the Acquiring Fund will have carried no unpaid tax liability under Section 852 of the Code.
5.12 All issued and outstanding Acquiring Fund Shares are, and on no business activity the Closing Date will be, duly authorized and validly and legally issued and outstanding, fully paid and non-assessable by the Acquiring Fund and will have had no assets or liabilities other than the payment received been offered and sold in compliance in all material respects with respect to the issuance applicable registration requirements of the initial Acquiring Fund shares;
(b) all applicable federal and state securities laws. The Acquiring Fund Trust does not have outstanding any options, warrants or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information there outstanding any security convertible into any Acquiring Fund Shares. All of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished Fund Shares to be issued and delivered to the Acquired Fund, for the account of the Acquired Fund did not Shareholders, pursuant to this Agreement will on the Closing Date have been duly authorized and, when so issued and do delivered, will be duly authorized and validly and legally issued Acquiring Fund Shares and be fully paid and non-assessable by the Acquiring Fund.
5.13 The combined proxy statement and prospectus to be included in the Registration Statement, insofar as it relates to the Acquiring Fund and the Acquiring Fund Shares, will from the effective date of the Registration Statement through the date of the meeting of shareholders of the Acquired Fund contemplated therein and on the Closing Date (a) not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed therein, in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge light of the Acquiring Fundcircumstances under which such statements were made, threatened against not materially misleading (provided that this representation and warranty shall not apply to statements in or omissions from the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, Registration Statement made in reliance upon and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation conformity with information that was furnished by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico);
(i) At the time of the Reorganization, the Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued for use therein) and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(l) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (ib) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, Act and the 1940 Act, Act and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required . The information to be stated therein furnished by the Acquiring Fund for use in registration statements and other documents filed or to be filed with any federal, state or local regulatory authority (including FINRA), which may be necessary in connection with the transactions contemplated hereby, shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations thereunder applicable thereto.
5.14 The Acquiring Fund has no plan or intention (a) to sell or dispose of the Assets transferred by the Acquired Fund, except for dispositions made in the ordinary course of business or dispositions necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred maintain its status as a regulated investment company, or (b) to in Section 7 and on the Closing Date, the Prospectus, as amended acquire or supplemented, insofar as it relates to the Acquiring Fund, will not contain redeem any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares issued in the transactions contemplated by this Agreement either directly or through any transaction, agreement or arrangement with any other person, other than redemptions that the Acquiring Fund, in the ordinary course of its business as an open-end investment company, makes when its shares are presented to it for redemption pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(nSection 22(e) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws1940 Act.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Liquidation (Limited Term Tax Exempt Bond Fund of America)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus Prospectuses and Statement of Additional Information of the Acquiring Fund, dated June 5May 30, 20102014, as supplemented, previously furnished to the Acquired Fund did did, not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at March 31, 2014, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of March 31, 2014 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since March 31, 2014;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on March 31, 2015;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement filed with the Securities and Exchange Commission (Commission) by the Proxy Statement, Trust on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, Form N-1A (i) comply complies in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(n) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Aberdeen Street Trust)
Representations and Warranties of the Acquiring Fund. The Except as has been fully disclosed to the Acquired Fund in a written instrument executed by an officer of the Acquiring Fund, the Acquiring Fund represents and warrants to and agrees with the Acquired Fund thatas follows:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust corporation duly organized, validly existing, and in good standing under the laws of the State of DelawareMaryland with power under its Charter and Bylaws, and has the power each as amended from time to time, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to it is presently conducted.
(b) At the Closing DateEffective Time, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than be registered with the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is Commission as an openclosed-end, end management investment company duly registered under the 1940 Act, and such the registration is of the Acquiring Fund Shares under the 1933 Act will be in full force and effect;.
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) Reserved;
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, 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 (which term as used herein shall include the District of Columbia and Puerto Rico);laws.
(id) Proxy Statement/Prospectus of the Acquiring Fund filed with the Commission on [ ] on Form N-14 which will become effective prior to the Closing Date, conforms and, as of its effective date and the Closing Date, will conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and does not and, as of its effective date and the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.
(e) At the time of the ReorganizationEffective Time, the Acquiring Fund will be a regulated investment company as defined in Section 851 have good and marketable title to the Acquiring Fund’s assets, free of any liens or other encumbrances.
(f) The Acquiring Fund is not engaged currently, and the execution, delivery and performance of this Agreement and the consummation of the Code;transactions contemplated hereby, will not result, in (i) a violation of Maryland law or a material violation of its Charter and Bylaws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(g) Except as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund, or any of the Acquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the Acquiring Fund’s financial condition or the conduct of its business. The Acquiring Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated.
(h) The Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquiring Fund at November 30, 2010 have been audited by BBD, LLP, independent registered public accounting firm, and are in accordance with GAAP consistently applied, and such statements (copies of which have been furnished to the Acquired Fund) present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be reflected on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
(i) Since November 30, 2010, there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquired Fund in writing. For the purposes of this subparagraph (i), a decline in net asset value per share of Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, the discharge of the Acquiring Fund’s liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquired Fund shall not constitute a material adverse change.
(j) As of At the Closing DateEffective Time, the shares of beneficial interest all Federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquiring Fund required by law to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be issued shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in best of the Fund's Statement knowledge of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in such return is currently under audit and no assessment has been asserted with respect thereof;to such returns.
(k) At the end of its first taxable year since its commencement of operations, the Acquiring Fund properly elected to be treated as a “regulated investment company” under Subchapter M of the Code. The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et seq. of the Code in respect of each taxable year since its commencement of operations, and will continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for, nor is now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. There is no other tax liability (including, any foreign, state, or local tax liability) except as set forth and accrued on the Acquiring Fund’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply. The Acquiring Fund will not be subject to corporate-level taxation on the sale of any assets currently held by it as a result of the application of Section 337(d) of the Code and the regulations thereunder. All dividends paid by the Acquiring Fund at any time prior to the Closing Date shall have been deductible pursuant to the dividends paid deduction under Section 562 of the Code. The Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its shares of beneficial interest and has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder.
(l) The execution, delivery, delivery and performance of this Agreement will have been duly authorized prior to the Closing Date Effective Time by all necessary corporate action action, if any, on the part of the Directors of the Acquiring Fund, and this Agreement constitutes will constitute a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject subject, as to approval by enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
(m) The Acquiring Fund Shares to be issued and delivered to the shareholders Acquired Fund, for the account of the Acquired Fund;
(l) Fund Shareholders, pursuant to the terms of this Agreement, will at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction in compliance in all material respects with applicable registration requirements and applicable securities laws. The Registration Statement and the Proxy StatementAcquiring Fund does not have outstanding any options, on the effective date warrants or other rights to subscribe for or purchase any of the Registration Statement and insofar as they relate to shares of the Acquiring Fund, nor is there outstanding any security convertible into any of the Acquiring Fund’s shares.
(in) The information to be furnished by the Acquiring Fund for use in the registration statements, proxy materials and other documents filed or to be filed with any Federal, state or local regulatory authority (including FINRA) that may be necessary in connection with the transactions contemplated hereby shall be accurate and complete in all material respects and shall comply in all material respects with Federal securities and other laws and regulations applicable thereto.
(o) The Proxy Statement/Prospectus, insofar as it relates to the provisions Acquiring Fund and the Acquiring Fund Shares, will, through the date of the 1933 Act, meeting of shareholders of the 1934 Act, Acquired Fund contemplated therein and at the 1940 Act, and the rules and regulations thereunder, and Effective Time (iii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time therein, in light of the shareholders' meeting referred to circumstances under which such statements were made, not materially misleading, and (ii) comply in Section 7 and on all material respects with the Closing Dateprovisions of the 1933 Act, the Prospectus1934 Act, as amended or supplementedand the 1940 Act and the rules and regulations thereunder; provided, insofar as it relates to however, that the Acquiring Fund, will not contain any untrue statement representations and warranties of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
subparagraph (n) All of shall not apply to statements in or omissions from the issued Proxy Statement/Prospectus made in reliance upon and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with information that was furnished by the federal securities lawsAcquired Fund for use therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Helios Total Return Fund Inc)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to the Acquired Fund that the statements contained in this paragraph 2.1 are correct and complete in all material respects as of the execution of this Agreement on the date hereof. The Acquiring Fund represents and warrants to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust corporation duly organized, validly existing, and in good standing existing under the laws of the State of DelawareMaryland and is in good standing with the Department, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 ActAct as a diversified, closed- end management investment company (File No. 811-07921) and such registration has not been revoked or rescinded and is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedingsis qualified as a foreign corporation in every jurisdiction where required, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will extent that failure to so qualify would not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of have a material adverse effect on the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;.
(f) Reserved;
(g) Reserved;
(hc) No consent, approval, authorization, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except (i) such as have been obtained or applied for under the Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the 1940 Act, and (ii) such as may be required by state securities or blue sky laws and (which term iii) such as used herein shall include may be required under Maryland law for the District acceptance for record of Columbia and Puerto Rico);the Articles of Merger by the Department.
(id) At the time of the Reorganization, the The Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fundis not, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, delivery and performance of this Agreement by the Acquiring Fund will have been duly authorized prior to not result, in violation of the Closing Date by all necessary corporate action on laws of the part State of Maryland or of the charter of the Acquiring Fund (the "Acquiring Fund Charter") or the Bylaws, as amended (the "Acquiring Fund Bylaws"), of the Acquiring Fund, or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound, and the execution, delivery and performance of this Agreement by the Acquiring Fund will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(e) The Acquiring Fund has been furnished with the Acquired Fund's Annual Report to Stockholders for the year ended February 29, 2016.
(f) The Acquired Fund has been furnished with the Acquiring Fund's (i) Annual Report to Stockholders for the year ended September 30, 2015 and (ii) Semi-Annual Report to Stockholders for the period ended March 31, 2016.
(g) The Acquiring Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action of the Acquiring Fund Board, and, subject to stockholder approval, this Agreement constitutes a valid and binding obligation of the Acquiring Fund contract enforceable in accordance with its terms, subject to approval the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(h) No material litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending (in which service of process has been received) or to its knowledge threatened against the Acquiring Fund or any properties or assets held by it. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings which would materially and adversely affect its business and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body which materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
(i) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the Registration Statement (as defined in paragraph 2.1(n) below) or will not be otherwise disclosed to the Acquired Fund prior to the Effective Date.
(j) Since March 31, 2016, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities or business and the Acquiring Fund has no known liabilities of a material amount, contingent or otherwise, required to be disclosed in a balance sheet with GAAP other than those shown on the Acquiring Fund's statements of assets, liabilities and capital referred to above, those incurred in the ordinary course of its business as an investment company since March 31, 2016, and those incurred in connection with the Merger. Prior to the Effective Date, the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued. For purposes of this paragraph 2.1(j), a decline in net asset value per share of the Acquiring Fund due to declines in market values of securities in the Acquiring Fund's portfolio or the discharge of the Acquiring Fund liabilities will not constitute a material adverse change.
(k) All material federal and other tax returns and information reports of the Acquiring Fund required by law to have been filed shall have been timely filed (including any extensions) and are or will be correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns. All tax liabilities of the Acquiring Fund have been adequately provided for on its books, and no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the shareholders Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the Acquired Fund;taxable year in which the Effective Date occurs.
(l) The Acquiring Fund has elected to be treated as a regulated investment company (a "RIC") for U.S. federal income tax purposes and for each taxable year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification as a RIC and has been eligible to and has computed its federal income tax under Section 852 of the Code. The Acquiring Fund intends to continue to meet such requirements and to so compute its federal income tax for each subsequent taxable year.
(m) The Acquiring Fund has not taken any action and does not know of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(n) The registration statement has been filed with the Securities and Exchange Commission (the "SEC") by the Acquiring Fund on Form N-14 relating to the Acquiring Fund Common Stock to be issued pursuant to this Agreement, and any supplement or amendment thereto or to the documents therein (as amended, the "Registration Statement and the Proxy Statement"), on the effective date of the Registration Statement Statement, at the time of the stockholders' meeting referred to in Article 4 of this Agreement and at the Effective Date, insofar as they relate it relates to the Acquiring Fund, Fund (i) shall have complied or will comply in all material respects with the provisions of the 1933 Act, the 1934 Act, Act and the 1940 Act, Act and the rules and regulations thereunder, thereunder and (ii) do did not or will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended prospectus included therein did not or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;; provided, however, that the representations and warranties in this paragraph 2.1(n) shall not apply to statements in, or omissions from, the Registration Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the Registration Statement.
(mo) All issued and outstanding shares of Acquiring Fund Common Stock (i) have been offered and sold in compliance in all material respects with applicable registration requirements of the 1933 Act and state securities laws, (ii) are, and on the Effective Date will be, duly and validly issued and outstanding, fully paid and non-assessable, and (iii) will be held at the time of the Closing by the persons and in the amounts set forth in the records of the transfer agent. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any shares of Acquiring Fund Common Stock, nor is there outstanding any security convertible into, or exchangeable for, any shares of Acquiring Fund Common Stock.
(p) The issuance Acquiring Fund is authorized to issue 500,000,000 shares of capital stock, par value $0.001 per share, all of which shares are classified as Common Stock (the "Acquiring Fund Common Stock"); each outstanding share of which is fully paid, non-assessable and has full voting rights.
(q) The offer and sale of the shares of Acquiring Fund Shares Common Stock to be issued pursuant to this Agreement will be in compliance with all applicable federal and state securities laws; and.
(nr) All of At or prior to the issued Effective Date, the Acquiring Fund will have obtained any and outstanding all regulatory, board and stockholder approvals necessary to issue the shares of beneficial interest Acquiring Fund Common Stock to be issued pursuant to this Agreement.
(s) The books and records of the Acquiring Fund have been offered for sale made available to the Acquired Fund are substantially true and sold in conformity correct and contain no material misstatements or omissions with respect to the federal securities lawsoperations of the Acquiring Fund.
(t) The Acquiring Fund Board has not adopted a resolution electing to be subject to the Maryland Business Combination Act or the Maryland Control Share Acquisition Act.
Appears in 1 contract
Samples: Merger Agreement (Western Asset High Income Opportunity Fund Inc.)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5December 31, 20102009, as supplemented, previously furnished to the Acquired Fund did did, not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at October 31, 2009, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended April 30, 2010. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of October 31, 2009, and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since October 31, 2009;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on October 31, 2010;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement filed with the Securities and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to Exchange Commission (Commission) by the Acquiring Fund, Fund Trust on Form N-1A (i) comply complies in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;and
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Reorganization Agreement (Fidelity Investment Trust)
Representations and Warranties of the Acquiring Fund. The Except as has been fully disclosed to the Acquired Fund as of the date hereof in a written instrument executed by an officer of the Acquiring Fund, Acquiring Fund represents and warrants to and agrees with the Acquired Fund thatas follows:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of DelawareDelaware with power under its Amended and Restated Declaration of Trust and Amended and Restated By-Laws, and has the power each as amended from time to time, to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;it is presently conducted.
(b) The Acquiring Fund Trust is an openregistered with the Commission as a closed-end, end management investment company duly registered under the 1940 Act, and such the registration of the Acquiring Fund Shares under the 1933 Act is in full force and effect;.
(c) The Prospectus Acquiring Fund has not taken any action and Statement does not know of Additional Information any fact or circumstance that could reasonably be expected to prevent the Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;Code.
(d) Except as disclosed in writing to At the Acquired FundEffective Time, there are no all material legalFederal and other tax returns, administrativedividend reporting forms, or and other proceedings pending or, to the knowledge tax-related reports of the Acquiring FundFund required by law to have been filed by such date (including any extensions, threatened against the Acquiring Fund which assert liability if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be shown as due on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis said returns and reports shall have been paid or provision shall have been made for the institution of payment thereof and no such proceedingsreturn is currently under audit and no assessment has been asserted, except as otherwise disclosed in writing, with respect to the Acquired Fund;such returns.
(e) The Acquiring Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable year since its commencement of operations (including the taxable year ending on the Closing Date), the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code and expects to continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for, nor is notnow liable for, and any material income or excise tax pursuant to Sections 852 or 4982 of the executionCode. There is no other material tax liability (including any foreign, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument state or By-laws, or, to the knowledge local tax liability) of the Acquiring Fund except as set forth and accrued on the Acquiring Fund, ’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply. The Acquiring Fund will not be subject to corporate-level taxation on the sale of any agreement, indenture, instrument, contract, lease, or other undertaking to which assets currently held by it as a result of the Acquiring Fund is a party or by which application of Section 337(d) of the Acquiring Fund is bound or result in Code and the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;regulations thereunder.
(f) Reserved;The Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its common shares of beneficial interest. To the actual knowledge of its officers, the Acquiring Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder. The Acquiring Fund is not under audit by any federal, state or local taxing authority and there are no actual or proposed tax deficiencies with respect to the Acquiring Fund that have been presented to the Acquiring Fund in writing.
(g) Reserved;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities laws.
(h) The shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information of the Acquiring Fund used at all times prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 ActAct and the rules and regulations of the Commission thereunder and does not or did not at the time of its use include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, and state securities or blue sky laws (in light of the circumstances under which term as used herein shall include the District of Columbia and Puerto Rico);they were made, not materially misleading.
(i) At The Acquiring Fund is not engaged currently, and the time execution, delivery and performance of this Agreement will not result, in: (i) a violation of federal securities laws (including the Reorganization1940 Act) or of Delaware law or a material violation of its Amended and Restated Declaration of Trust and Amended and Restated By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the Acquiring Fund will be is a regulated investment company as defined in Section 851 party or by which it is bound, or (ii) the acceleration of any obligation, or the Code;imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it is bound.
(j) As Except as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring Fund or any of the Closing DateAcquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the shares Acquiring Fund’s financial condition or the conduct of beneficial interest its business. The Acquiring Fund knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated.
(k) The Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquiring Fund at October 31, 2022, have been audited by KPMG LLP, independent registered public accounting firm, and are in accordance with GAAP consistently applied, and such statements present fairly, in all material respects, the financial condition of the Acquiring Fund as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be issued to reflected on a balance sheet (including the Acquired notes thereto) in accordance with GAAP as of such date not disclosed therein.
(l) Since October 31, 2022, there has not been any material adverse change in the Acquiring Fund’s financial condition, assets, liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund will have been duly authorized andof indebtedness, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as otherwise disclosed to by the Acquiring Fund. For the purposes of this subparagraph (l), a decline in the Fund's Statement net asset value per share of Additional Information) Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, and no shareholder the discharge of the Acquiring Fund’s liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;shall not constitute a material adverse change.
(km) The execution, delivery, delivery and performance of this Agreement will have been duly authorized prior to the Closing Date Effective Time by all necessary corporate action action, if any, on the part of the Trustees of the Acquiring Fund, and and, subject to the approval of the shareholders of the Acquiring Fund, this Agreement constitutes will constitute a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject subject, as to approval by enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The Acquiring Fund Shares to be issued and delivered to the shareholders Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant to the terms of this Agreement, will at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquiring Fund;, nor is there outstanding any security convertible into any of the Acquiring Fund’s Shares.
(lo) The Registration Statement and the Proxy Statement/Prospectus (as defined in paragraph 5.6), on the effective date of the Registration Statement and insofar as they relate it relates to the Acquiring Fund, will, at the Effective Time: (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time therein, in light of the shareholders' meeting referred to circumstances under which such statements were made, not materially misleading and (ii) comply in Section 7 and on all material respects with the Closing Dateprovisions of the 1933 Act, the Prospectus1934 Act and the 1940 Act and the rules and regulations thereunder; provided, as amended however, that the representations and warranties of this subparagraph (o) shall not apply to statements in or supplemented, insofar as it relates to omissions from the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be Proxy Statement/Prospectus made in compliance with all applicable federal securities laws; and
(n) All of the issued reliance upon and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with information that was furnished by the federal securities lawsAcquired Fund for use therein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Abrdn Income Credit Strategies Fund)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus Prospectuses and Statement Statements of Additional Information of the Acquiring Fund, dated June 5April 30, 20102014, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at December 31, 2013, have been audited by Deloitte & Touche LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund. Said Statement of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of December 31, 2013 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since December 31, 2013;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of the Codefor all prior taxable years and intends to meet such requirements for its current taxable year ending on December 31, 2015;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Variable Insurance Products Iii)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 528, 20102014, as supplemented, previously furnished to the Acquired Fund did did, not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at April 30, 2014, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended October 31, 2014. Said Statements of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its statement of assets and liabilities as of April 30, 2014 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since April 30, 2014;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of for all prior taxable years and intends to meet such requirements for its current taxable year ending on April 30, 2015 and its taxable year that includes the CodeClosing Date;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement filed with the Securities and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to Exchange Commission (Commission) by the Acquiring Fund, Fund Trust on Form N-1A (i) comply complies in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Hereford Street Trust)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to the Acquired Fund that the statements contained in this paragraph 2.1 are correct and complete in all material respects as of the execution of this Agreement on the date hereof. The Acquiring Fund represents and warrants to, and agrees with with, the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory trust corporation duly organized, validly existing, and in good standing existing under the laws of the State of DelawareMaryland and is in good standing with the Department, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;.
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 ActAct as a diversified, closed-end management investment company (File No. 811-21462) and such registration has not been revoked or rescinded and is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5, 2010, as supplemented, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedingsis qualified as a foreign corporation in every jurisdiction where required, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is not, and the execution, delivery, and performance of this Agreement will extent that failure to so qualify would not result in, violation of any provision of its Amended and Restated Trust Instrument or By-laws, or, to the knowledge of have a material adverse effect on the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;.
(f) Reserved;
(g) Reserved;
(hc) No consent, approval, authorization, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreementherein, except (i) such as have been obtained or applied for under the Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the 1940 Act, and (ii) such as may be required by state securities or blue sky laws and (which term iii) such as used herein shall include may be required under Maryland law for the District acceptance for record of Columbia and Puerto Rico);the Articles of Merger by the Department.
(id) At the time of the Reorganization, the The Acquiring Fund will be a regulated investment company as defined in Section 851 of the Code;
(j) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Fund's Statement of Additional Information) by the Acquiring Fundis not, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(k) The execution, delivery, delivery and performance of this Agreement by the Acquiring Fund will have not result, in violation of the laws of the State of Maryland or of the charter of the Acquiring Fund (the "Acquiring Fund Charter") or the Bylaws, as amended (the "Acquiring Fund Bylaws"),
(e) The Acquiring Fund has been furnished with the Acquired Fund's Annual Report to Stockholders for the year ended November 30, 2013.
(f) The Acquired Fund has been furnished with the Acquiring Fund's Annual Report to Stockholders for the year ended November 30, 2013.
(g) The Acquiring Fund has full power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement has been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring FundFund Board, and and, subject to stockholder approval, this Agreement constitutes a valid and binding obligation of the Acquiring Fund contract enforceable in accordance with its terms, subject to approval the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance and similar laws relating to or affecting creditors' rights generally and court decisions with respect thereto.
(h) No material litigation or administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any properties or assets held by it. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings which would materially and adversely affect its business and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body which materially and adversely affects its business or its ability to consummate the transactions herein contemplated.
(i) There are no material contracts outstanding to which the Acquiring Fund is a party that have not been disclosed in the Registration Statement (as defined in paragraph 2.1(m) below) or will not be otherwise disclosed to the Acquired Fund prior to the Effective Date.
(j) Since November 30, 2013, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities or business and the Acquiring Fund has no known liabilities of a material amount, contingent or otherwise, required to be disclosed in a balance sheet with GAAP other than those shown on the Acquiring Fund's statements of assets, liabilities and capital referred to above, those incurred in the ordinary course of its business as an investment company since November 30, 2013, and those incurred in connection with the Merger. Prior to the Effective Date, the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course of business, existing or accrued. For purposes of this paragraph 2.1(j), a decline in net asset value per share of the Acquiring Fund due to declines in market values of securities in the Acquiring Fund's portfolio or the discharge of the Acquiring Fund liabilities will not constitute a material adverse change.
(k) All federal and other tax returns and information reports of the Acquiring Fund required by law to have been filed shall have been filed and are or will be correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns. All tax liabilities of the Acquiring Fund have been adequately provided for on its books, and no tax deficiency or liability of the Acquiring Fund has been asserted and no question with respect thereto has been raised by the shareholders Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid, up to and including the Acquired Fund;taxable year in which the Effective Date occurs.
(l) The Registration Statement Acquiring Fund has not taken any action and does not know of any fact or circumstance that could reasonably be expected to prevent the Proxy Statement, on Merger from qualifying as a reorganization within the effective date meaning of Section 368(a) of the Registration Statement Code. (m) The registration statement has been filed with the Securities and insofar as they relate Exchange Commission (the "SEC") by the Acquiring Fund on Form N-14 relating to the Acquiring Fund, Fund Common Stock and the
(in) comply All issued and outstanding shares of Acquiring Fund Common Stock and Acquiring Fund Preferred Stock have been offered and sold in compliance in all material respects with the provisions applicable registration requirements of the 1933 ActAct and state securities laws, the 1934 Act(ii) are, and on the 1940 ActEffective Date will be, duly and the rules validly issued and regulations thereunderoutstanding, fully paid and non-assessable, and (iiiii) do not contain any untrue statement of a material fact or omit to state a material fact required to will be stated therein or necessary to make the statements therein not misleading; and held at the time of the shareholders' meeting referred Closing by the persons and in the amounts set forth in the records of the transfer agent. The Acquiring Fund does not have outstanding any options, warrants or other rights to in Section 7 subscribe for or purchase any shares of Acquiring Fund Common Stock or Acquiring Fund Preferred Stock, nor is there outstanding any security convertible into, or exchangeable for, any shares of Acquiring Fund Common Stock or Acquiring Fund Preferred Stock.
(o) The Acquiring Fund is authorized to issue 100,000,000 shares of common stock, par value $0.001 per share (the "Acquiring Fund Common Stock"), and on 20,000,000 shares of preferred stock, par value $0.001 per share (the Closing Date"Acquiring Fund Preferred Stock"); each outstanding share of which is fully paid, non-assessable and has full voting rights.
(p) The offer and sale of the Prospectus, as amended or supplemented, insofar as it relates to the shares of Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required Fund Common Stock and Acquiring Fund Preferred Stock (if any) to be stated therein or necessary to make the statements therein not misleading;
(m) The issuance of the Acquiring Fund Shares issued pursuant to this Agreement will be in compliance with all applicable federal and state securities laws; and.
(nq) All of At or prior to the issued Effective Date, the Acquiring Fund will have obtained any and outstanding all regulatory, board and stockholder approvals necessary to issue the shares of beneficial interest Acquiring Fund Common Stock and Acquiring Fund Preferred Stock (if any) to be issued pursuant to this Agreement.
(r) The books and records of the Acquiring Fund have been offered for sale made available to the Acquired Fund are substantially true and sold in conformity correct and contain no material misstatements or omissions with respect to the federal securities lawsoperations of the Acquiring Fund.
(s) The Acquiring Fund Board has not adopted a resolution electing to be subject to the Maryland Business Combination Act or the Maryland Control Share Acquisition Act.
Appears in 1 contract
Samples: Merger Agreement (Tortoise Energy Infrastructure Corp)
Representations and Warranties of the Acquiring Fund. The Acquiring Fund represents and warrants to and agrees with the Acquired Fund that:
(a) The Acquiring Fund is a series of the Acquiring Fund Trust, a statutory business trust duly organized, validly existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts, and has the power to own all of its properties and assets and to carry out its obligations under this Agreement. It has all necessary federal, state, and local authorizations to carry on its business as now being conducted and to carry out this Agreement; Prior to the Closing Date, the Acquiring Fund will have carried on no business activity and will have had no assets or liabilities other than the payment received with respect to the issuance of the initial Acquiring Fund shares;
(b) The Acquiring Fund Trust is an open-end, management investment company duly registered under the 1940 Act, and such registration is in full force and effect;
(c) The Prospectus and Statement of Additional Information of the Acquiring Fund, dated June 5November 29, 20102011, as supplementedsupplemented or amended, previously furnished to the Acquired Fund did not and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) Except as disclosed in writing to the Acquired Fund, there are no material legal, administrative, or other proceedings pending or, to the knowledge of the Acquiring Fund, threatened against the Acquiring Fund which assert liability on the part of the Acquiring Fund. The Acquiring Fund knows of no facts which might reasonably form the basis for the institution of such proceedings, except as otherwise disclosed to the Acquired Fund;
(e) The Acquiring Fund is notnot in, and the execution, delivery, and performance of this Agreement will not result in, violation of any provision of its Amended and Restated Declaration of Trust Instrument or By-laws, or, to the knowledge of the Acquiring Fund, of any agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which the Acquiring Fund is bound or result in the acceleration of any obligation or the imposition of any penalty under any agreement, judgment, or decree to which the Acquiring Fund is a party or is bound;
(f) ReservedThe Statement of Assets and Liabilities, the Statement of Operations, the Statement of Changes in Net Assets, Financial Highlights, and the Schedule of Investments (including market values) of the Acquiring Fund at September 30, 2011, have been audited by Deloitte & Touche LLP, independent registered public accounting firm, and have been furnished to the Acquired Fund together with such unaudited financial statements and schedule of investments (including market values) for the six month period ended March 31, 2012. Said Statements of Assets and Liabilities and Schedule of Investments fairly present the Acquiring Fund's financial position as of such date and said Statement of Operations, Statement of Changes in Net Assets, and Financial Highlights fairly reflect the Acquiring Fund's results of operations, changes in financial position, and financial highlights for the periods covered thereby in conformity with generally accepted accounting principles consistently applied;
(g) ReservedThe Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than those shown as belonging to it on its Statement of Assets and Liabilities as of September 30, 2011 and those incurred in the ordinary course of the Acquiring Fund's business as an investment company since September 30, 2011;
(h) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund of the transactions contemplated by this Agreement, except such as have been obtained under the 1933 Act, the 1934 Act, the 1940 Act, and state securities or blue sky laws (which term as used herein shall include the District of Columbia and Puerto Rico)laws;
(i) At The Acquiring Fund has filed or will file all federal and state tax returns which, to the time knowledge of the ReorganizationAcquiring Fund's officers, are required to be filed by the Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or provision shall have been made for the payment thereof, and, to the best of the Acquiring Fund's knowledge, no such return is currently under audit and no assessment has been asserted with respect to such returns;
(j) The Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company as defined in Section 851 of for all prior taxable years and intends to meet such requirements for its current taxable year ending on September 30, 2012 and for its subsequent taxable year that will include the CodeClosing Date;
(jk) As of the Closing Date, the shares of beneficial interest of the Acquiring Fund to be issued to the Acquired Fund will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable (except as disclosed in the Acquiring Fund's Statement of Additional Information) by the Acquiring Fund, and no shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof;
(kl) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary corporate action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject to approval by the shareholders of the Acquired Fund;
(lm) The Registration Statement and the Proxy Statement, on the effective date of the Registration Statement and insofar as they relate to the Acquiring Fund, (i) comply in all material respects with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules and regulations thereunder, and (ii) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at the time of the shareholders' meeting referred to in Section 7 and on the Closing Date, the Prospectus, as amended or supplemented, insofar as it relates to the Acquiring Fund, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(mn) The issuance of the Acquiring Fund Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws; and
(no) All of the issued and outstanding shares of beneficial interest of the Acquiring Fund have been offered for sale and sold in conformity with the federal securities laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fidelity Capital Trust)
