Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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Act of 1940, as amended (the “1940 Act”), as an open-end management investment company and such registration has not been revoked or rescinded and is in full force and effect, and the Acquiring Fund is a separate diversified series thereof duly designated in accordance with the applicable provisions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 Acquiring Fund has elected to be, and has met the requirements of subchapter M of the 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 May 31, 2014, 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 May 31, 2014, 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 May 31, 2014, 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 Amended and Restated By-Laws dated March 8, 2005, as may be amended (the “Acquiring Fund Trust by-laws”), 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 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 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Merger Agreement (John Hancock Municipal Securities Trust), Merger Agreement (John Hancock Municipal Securities Trust)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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 ~~May~~ October 31, ~~2014~~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 ~~May~~ October 31, ~~2014~~2015, in conformity with accounting principles 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 ~~May~~ October 31, ~~2014~~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 Amended and Restated By-~~Laws~~ laws, dated March 8, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares, except that Class B A shares of the Acquiring Fund are convertible into Class A I shares or Class R6 shares of the Acquiring Fund, and Class C shares 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 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,~~ A and Class C I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (John Hancock Investment Trust), Agreement and Plan of Reorganization (John Hancock Investment Trust)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ March 31, ~~2014~~2008, and the audited financial statements appearing therein, having been audited by ~~PricewaterhouseCoopers LLP (“PwC”)~~KPMG LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~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 ~~May~~ March 31, ~~2014~~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,~~ 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,~~ 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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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,~~ 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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, Class C and Class C I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Reorganization 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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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~~January 22, ~~2005~~2016, as may be amended (the “~~Acquiring Fund~~ Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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 ~~May~~ August 31, ~~2014~~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 ~~May~~ August 31, ~~2014~~2015, in conformity with accounting principles 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 ~~May~~ August 31, ~~2014~~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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “~~Acquiring Fund~~ Trust byBy-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment ~~policies~~ strategies 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, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 pursuant to this Agreement have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class AR1, Class BR2, Class R4, Class R6 and Class C 1 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ the 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~~ the Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Merger Agreement (John Hancock Funds II), Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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 Second Amended and Restated Agreement and Declaration of Trust dated ~~March 8~~August 12, 2005, as may be amended (the “~~Acquiring Fund Trust~~ Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ March 31, ~~2014~~2010, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP~~ LLP, independent registered public accounting firm (“PwC”); and (ii) the unaudited semiannual report of the Acquiring Fund for the six months ended September 30, ~~independent registered public accounting firm~~2010; which, ~~which~~ in each case, fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~2010 or September 30, 2010, 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 ~~its~~ the statement of assets and liabilities of the Acquiring Fund as of ~~May 31~~September 30, ~~2014~~2010, 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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the ~~board~~ Board of ~~trustees~~ Trustees of the ~~Acquiring Fund~~ Trust (the “~~Acquiring Fund Trust Board of Trustees~~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,~~ 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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated March 8, 2005, as may be amended (the “~~Acquiring Fund Trust by~~By-laws”), 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,~~ 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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,~~ A and Class C I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Reorganization Agreement (John Hancock Funds III), Reorganization 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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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 Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as 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~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ October 31, ~~2014~~2013, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP~~ LLP, independent registered public accounting firm (“PwC”)~~, independent registered public accounting firm,~~ ; which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ October 31, ~~2014~~2013, 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~~ the statement of assets and liabilities of the Acquiring Fund as of ~~May~~ October 31, ~~2014~~2013, 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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the ~~board~~ Board of ~~trustees~~ Trustees of the ~~Acquiring Fund~~ Trust (the “~~Acquiring Fund Trust Board of Trustees~~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,~~ 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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~December 12, ~~2005~~1984, as may be amended (the “~~Acquiring Fund Trust by~~By-laws”), 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,~~ 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring ~~Fund~~ Fund’s 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 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, Class C and Class C I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ the 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~~ the Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Merger Agreement (John Hancock Investment Trust), Reorganization Agreement (John Hancock Investment Trust)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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 Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ March 31, ~~2014~~2007, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the date indicated, 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 ~~May~~ March 31, ~~2014~~2007, 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,~~ 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,~~ 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 ornor, to the best of ~~its~~ their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, ~~state,~~ state or local law or regulation or administrative ruling relating to any aspect of ~~its~~ their 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 Amended and Restated By-~~Laws~~ laws dated March 8, 2005, as may be amended (the “~~Acquiring Fund~~ Trust byBy-laws”), 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,~~ 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/~~Statement and 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement/prospectus~~ Proxy Statement and 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~~ subsection 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the Acquiring Fund ~~Trust~~ is a “Massachusetts business trust” ~~and~~ and, under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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~~ A shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ the Trust is a “Massachusetts business trust” ~~and~~ and, under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of ~~Acquiring Fund~~ the Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Reorganization Agreement (Hancock John Current Interest), Reorganization Agreement (Hancock John Current Interest)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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~~January 22, ~~2005~~2016, as may be amended (the “~~Acquiring Fund~~ Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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 ~~May~~ March 31, ~~2014~~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 ~~May~~ March 31, ~~2014~~2015, in conformity with accounting principles 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 ~~May~~ March 31, ~~2014~~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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 9, 2005, as ~~may be~~ amended (the “~~Acquiring Fund~~ Trust byBy-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares, except that certain Class B A and Class C shares of the Acquiring Fund are convertible into Class A I shares or Class R6 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 pursuant to this Agreement have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class AR1, Class BR2, Class R4, Class R6 and Class C 1 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ the 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~~ the Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (John Hancock Funds III), Reorganization 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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ March 31, ~~2014~~2009, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~2009, 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~~ the statement of assets and liabilities of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~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, has full power and authority to enter into and perform its obligations under this Agreement. The execution, ~~delivery,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the ~~board~~ Board of ~~trustees~~ 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,~~ 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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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,~~ 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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 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 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 the Acquiring Fund Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds III)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ JHF Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ JHF Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. The ~~Acquiring Fund~~ JHF 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~~ JHF Trust. Each of the ~~Acquiring Fund~~ JHF 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. (b) The ~~Acquiring Fund~~ JHF Trust is 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~~ JHF Trust’s Second Amended and Restated Agreement and Declaration of Trust dated ~~March 8~~August 12, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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~~ Fund’s predecessor for the fiscal year ended ~~May 31~~February 28, ~~2014~~2006, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, and the unaudited statement of assets and liabilities, statement of operations, and statement of changes in net assets of the Acquiring Fund and the unaudited schedule of investments of the Acquiring Fund for the semiannual period ended August 31, 2006, each of which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the respective dates indicated, 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 ~~May 31~~February 28, ~~2014~~2007, 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~~ JHF 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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the board of trustees of ~~the Acquiring Fund~~ JHF Trust (the “~~Acquiring Fund~~ JHF 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,~~ 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~~ JHF Trust or the Acquiring Fund, threatened against the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund which assert liability on the part of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or which materially affect the financial condition of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or the ~~Acquiring Fund~~ JHF Trust’s or the Acquiring ~~Fund’s~~ Funds’ ability to consummate the Reorganization. Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is charged with ornor, to the best of ~~its~~ their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, ~~state,~~ state or local law or regulation or administrative ruling relating to any aspect of ~~its~~ their business. (h) Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is obligated under any provision of the ~~Acquiring Fund~~ JHF Trust Declaration or the ~~Acquiring Fund~~ JHF Trust’s ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 9, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust byBy-laws”), 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,~~ 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~~ JHF 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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, Class C and Class C I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ JHF 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~~ JHF Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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 May 31, ~~2014~~2016, 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 May 31, ~~2014~~2016, in conformity with accounting principles 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 May 31, ~~2014~~2016, 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 ~~Amended and Restated~~ By-~~Laws~~ laws, dated March 8, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares, except that Class A shares of the Acquiring Fund are convertible into Class I shares or Class R6 shares of the Acquiring Fund, Class B shares of the Acquiring Fund are convertible into Class A shares of the Acquiring Fund, and Class C shares 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.~~Acquiring Fund’s registration statement on Form N-1A. (n) The Merger Shares to be issued to the Acquired Fund 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,~~ NAV and Class C R6 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Sovereign Bond Fund)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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 's Amended and Restated Agreement and Declaration of Trust dated ~~March 8~~August 12, 2005, as may be amended (the “~~Acquiring Fund Trust~~ Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as 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 Acquiring Fund has furnished the Acquired Fund ~~has been furnished with~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ August 31, 2014, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP~~ LLP, independent registered public accounting firm (“PwC”)~~, independent registered public accounting firm,~~ ; which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ August 31, 2014, 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~~ the statement of assets and liabilities of the Acquiring Fund as of ~~May~~ August 31, 2014, 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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the ~~board~~ Board of ~~trustees~~ Trustees of the ~~Acquiring Fund~~ Trust (the “~~Acquiring Fund Trust Board of Trustees~~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,~~ 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 '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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws, dated ~~March 8~~June 28, 2005, as may be amended (the “~~Acquiring Fund Trust by~~By-laws”), 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 in writing to the Acquired Fund prior to the Valuation Time. (j) No consent, approval, ~~authorization,~~ 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~~ Reorganization Shares issuable hereunder, and the proxy statement of the Acquired Fund relating to the meeting of the Acquired Fund’s '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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring ~~Fund~~ Fund’s 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~~ Reorganization Shares to be issued to the Acquired Fund 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, 1 and Class C NAV shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ Reorganization Shares will be nonassessable, it is noted that ~~Acquiring Fund~~ the 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~~ the Trust. (o) At or prior to the Closing Date, the ~~Merger~~ Reorganization Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the ~~Merger~~ Reorganization Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 Robeco Boston Partners Large Cap Value Fund, a series of The RBB Fund, Inc., the predecessor to the Acquiring Fund (the “Predecessor Fund”), for the fiscal year ended ~~May~~ August 31, ~~2014~~2008, and the audited financial statements appearing therein, having been audited by ~~PricewaterhouseCoopers LLP (“PwC”)~~Ernst & Young LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the ~~Acquiring~~ Predecessor Fund as of ~~May~~ August 31, ~~2014~~2008, in conformity with generally accepted accounting principles in the United States applied on a consistent basis. On December 19, 2008, the Acquiring Fund acquired all of the Predecessor Fund’s assets and liabilities in a tax-free reorganization. (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~~ the statement of assets and liabilities of the Predecessor Fund as of ~~May~~ August 31, ~~2014~~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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the ~~board~~ Board of ~~trustees~~ 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,~~ 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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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,~~ 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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, Class C, Class I, and Class C R1 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ March 31, ~~2014~~2008, and the audited financial statements appearing therein, having been audited by ~~PricewaterhouseCoopers LLP (“PwC”)~~KPMG LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~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 ~~May~~ March 31, ~~2014~~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,~~ 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,~~ 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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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,~~ 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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, Class C and Class C I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: 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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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 's Amended and Restated ~~Agreement and~~ Declaration of ~~Trust~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “"Acquiring Fund Trust Declaration”"), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “"regulated investment company” " (“"RIC”") within the meaning of ~~Section~~ 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, or 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~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ March 31, ~~2014~~2018, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP (“"PwC”"), independent registered public accounting firm; and (ii) the unaudited semiannual report of the Acquiring Fund for the six months ended September 30, ~~which~~ 2018, which, in each case, fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the date of the respective reports, in conformity with accounting principles 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 ~~May 31~~September 30, ~~2014~~2018, 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 '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 's or the Acquiring Fund’s '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 Amended and Restated~~ 's By-~~Laws~~ laws, dated ~~March 8~~June 5, 2005, as may be amended (the “"Acquiring Fund Trust byBy-laws”"), 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 '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 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 not misleading; : and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (lI) The Acquiring Fund’s 's investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares, except that Class B A shares of the Acquiring Fund are convertible into Class A I shares or Class R6 shares of the Acquiring Fund in the manner and on the terms described in the ~~N-14 Registration Statement.~~Acquiring Fund's registration statement on Form N-1A. (n) The Merger Shares to be issued to the Acquired Fund 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 BC, Class I, Class R6, and Class C NAV shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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 the Acquiring Fund Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “~~Acquiring Fund Trust~~ Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the United States Internal Revenue Code of 1986, as amended (the “Code”) for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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 ~~May~~ August 31, ~~2014~~2016, 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 ~~May~~ August 31, ~~2014~~2016, in conformity with accounting principles 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 ~~May~~ August 31, ~~2014~~2016, 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~~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. (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 ~~Amended and Restated~~ By-~~Laws~~ laws, dated ~~March 8~~June 28, 2005, as may be amended (the “~~Acquiring Fund Trust by~~By-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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~~ NAV shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ JHF Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ JHF Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of ~~the~~ The Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. The ~~Acquiring Fund~~ JHF 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~~ JHF Trust. Each of the ~~Acquiring Fund~~ JHF 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. (b) The ~~Acquiring Fund~~ JHF Trust is 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~~ JHF Trust’s Second Amended and Restated Agreement and Declaration of Trust dated ~~March 8~~August 12, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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~~ Fund’s predecessor for the fiscal year ended ~~May 31~~February 28, ~~2014~~2006, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, and the unaudited statement of assets and liabilities, statement of operations, and statement of changes in net assets of the Acquiring Fund and the unaudited schedule of investments of the Acquiring Fund for the semiannual period ended August 31, 2006, each of which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the respective dates indicated, 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 ~~May 31~~February 28, ~~2014~~2007, 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~~ JHF 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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the board of trustees of ~~the Acquiring Fund~~ JHF Trust (the “~~Acquiring Fund~~ JHF 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,~~ 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~~ JHF Trust or the Acquiring Fund, threatened against the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund which assert liability on the part of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or which materially affect the financial condition of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or the ~~Acquiring Fund~~ JHF Trust’s or the Acquiring ~~Fund’s~~ Funds’ ability to consummate the Reorganization. Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is charged with ornor, to the best of ~~its~~ their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, ~~state,~~ state or local law or regulation or administrative ruling relating to any aspect of ~~its~~ their business. (h) Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is obligated under any provision of the ~~Acquiring Fund~~ JHF Trust Declaration or the ~~Acquiring Fund~~ JHF Trust’s ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 9, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust byBy-laws”), 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,~~ 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~~ JHF 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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, Class C and Class C I shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ JHF 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~~ JHF Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds III)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund ~~Trust, on behalf~~ 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,~~ Fund represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a ~~series of shares of the Acquiring Fund Trust~~corporation duly organized, ~~a Massachusetts business trust duly organized and~~ validly existing ~~under, and in conformity with,~~ under the laws of the ~~Commonwealth~~ State of ~~Massachusetts~~Maryland and is in good standing with the Department, and has the power to own all of its assets and to carry on its business as it is now being conducted and to carry out ~~its obligations under~~ this Agreement. (b) The Acquiring Fund is duly registered under the 1940 Act as a diversified, closed-end management investment company (File No. 811-08709) and such registration has not been revoked or rescinded and is in full force and effect. The Acquiring Fund ~~Trust~~ has elected and qualified for the special tax treatment afforded regulated investment companies ("RICs") under Sections 851-855 of the Code at all times since its inception. The Acquiring Fund is qualified as a foreign ~~association~~ corporation 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~~ Fund. (c) No consent, approval, authorization or order of any court or governmental authority is required for the consummation by the Acquiring Fund ~~Trust and~~ of the ~~Acquiring Fund has all necessary federal~~transactions contemplated herein, ~~state, and local authorizations to carry on its business~~ except (i) such as ~~it is now being conducted and to carry out this Agreement. (b) The Acquiring Fund Trust is duly registered~~ have been obtained or applied for under the ~~Investment Company~~ Securities Act of ~~1940~~1933, as amended (the ~~“1940~~ "1933 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~~ Securities Exchange Act of ~~the Acquiring Fund Trust’s Amended and Restated Agreement and Declaration of Trust dated March 8, 2005~~1934, as ~~may be~~ amended (the ~~“Acquiring Fund Trust Declaration”~~"1934 Act"), and the 1940 Act, (ii) such as may be required by state securities laws and (iii) such as may be required under Maryland law for the acceptance for record of the Articles of Merger by the Department. (cd) The Acquiring Fund ~~has elected to be~~is not, and ~~has met~~ the ~~requirements~~ execution, delivery and performance of ~~subchapter M~~ this Agreement by the Acquiring Fund will not result, in violation of the ~~Code for treatment as a “regulated investment company” (“RIC”) within the meaning of Section 851~~ laws of the ~~Code at all times since its inception~~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 ~~will continue to meet such requirements at all times through~~ the ~~Closing Date (as defined in Section 7 herein)~~ execution, delivery and ~~thereafter. The~~ performance of this Agreement by the Acquiring Fund ~~has~~ will not at result in the acceleration of any ~~time since its inception been liable for~~obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is ~~not now liable for, any material income~~ a party or ~~excise tax pursuant to Sections 852 or 4982 of the Code~~by which it is bound. (de) The Acquired Fund has been furnished with a statement of assets, liabilities and capital and a schedule of investments of the Acquiring Fund, each as of April 30, 2008, said financial statements having been examined by KPMG LLP, independent public accountants. These financial statements are in accordance with U.S. generally accepted accounting principles applied on a consistent basis ("GAAP") and present fairly, in all material respects, the financial position 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. (f) The Acquired Fund has been furnished with the ~~annual report~~ Acquiring Fund"s Annual Report to Stockholders for the year ended April 30, 2008. (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 ~~for~~ Board, and, subject to stockholder approval, this Agreement constitutes a valid and binding contract enforceable in accordance with its terms, subject to the ~~fiscal year ended May 31~~effects of bankruptcy, ~~2014~~insolvency, moratorium, fraudulent conveyance and ~~the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP~~ similar laws relating to or affecting creditors" rights generally and court decisions with respect thereto. (~~“PwC”), independent registered public accounting firm, which fairly presents the financial condition and result~~ h) No material litigation or administrative proceeding or investigation of ~~operations of~~ or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund as or any properties or assets held by it. The Acquiring Fund knows of ~~May 31~~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, ~~2014, in conformity with generally accepted accounting principles in~~ decree or judgment of any court or governmental body which materially and adversely affects its business or its ability to consummate the ~~United States applied on a consistent basis~~transactions herein contemplated. (ei) ~~The~~ 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 April 30, 2008, 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 ~~nature~~amount, contingent or otherwise, required to be disclosed in a balance sheet with GAAP other than those ~~that will be~~ shown ~~as belonging~~ on the Acquiring Fund"s statements of assets, liabilities and capital referred to ~~it on its statement of assets and liabilities as of May 31~~above, ~~2014, and~~ those incurred in the ordinary course of its business as an investment company since ~~such date~~April 30, 2008, and those incurred in connection with the Merger. ~~As of~~ Prior to the ~~Valuation Time (as defined in Section 3(e))~~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 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~~accrued. ~~The execution, delivery, and performance~~ For purposes of this ~~Agreement has been duly authorized by all necessary action of the board of trustees~~ paragraph 2.1(j), a decline in net asset value per share of the Acquiring Fund ~~Trust (~~due to declines in market values of securities in 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~~ Fund"s portfolio or 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 discharge 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~~ liabilities will not constitute a material adverse change. (k) All federal and other tax returns and information reports of the Acquiring Fund ~~Trust~~ 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 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 orpayment thereof, and, to the best of ~~its~~ the Acquiring Fund"s 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 no such return is ~~obligated~~ currently under any provision of the Acquiring Fund Trust Declaration or the Acquiring Fund Trust’s Amended and Restated By-Laws dated March 8, 2005, as may be amended (the “Acquiring Fund Trust by-laws”), 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 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 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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 by the Acquiring Fund, audit and no ~~shareholder of the Acquiring Fund will have any preemptive right of subscription or purchase in~~ assessment has been asserted with 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occursreturns. 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 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 the ~~Closing~~ Effective Date occurs. (l) 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 elected to be treated as such, has been eligible to and has computed its federal income tax under Section 852 of the Code, and will have distributed substantially all of its investment company taxable income and net realized capital gain (as defined in the Code) that has accrued through the Effective Date. (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"), on the effective date of the Registration Statement, at the time of the stockholders" meeting referred to in Article 4 of this Agreement and at the Effective Date, insofar as it relates to the Acquiring Fund (i) shall have 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 not misleading; and the 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 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. (o) 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 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 Common Stock to be issued pursuant to this Agreement will be in compliance with all applicable federal and state securities laws. (r) At or prior to the Effective Date, the Acquiring Fund will have obtained any and all regulatory, board and stockholder approvals necessary to issue the shares of Acquiring Fund Common Stock to be issued pursuant to this Agreement. (s) The books and records of the Acquiring Fund made available to the Acquired Fund are substantially true and correct and contain no material misstatements or omissions with respect to the operations 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 Zenix Income Fund Inc.)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”) for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ August 31, ~~2014~~2018, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP (“PwC”), independent registered public accounting firm; and (ii) the unaudited semiannual report of the Acquiring Fund for the six months ended February 28, ~~which~~ 2019, which, in each case, fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the date of the respective reports, in conformity with accounting principles 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 ~~May 31~~February 28, ~~2014~~2019, 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 ~~Amended and Restated~~ By-~~Laws~~ laws, dated ~~March 8~~June 28, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares, except that Class B A shares of the Acquiring Fund are convertible into Class A I shares or Class R6 shares of the Acquiring Fund in the manner and on the terms described in the ~~N-14 Registration Statement.~~Acquiring Fund’s registration statement on Form N-1A. (n) The Merger Shares to be issued to the Acquired Fund 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 BI, and Class C R6 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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 the Acquiring Fund Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “~~Acquiring Fund Trust Declaration~~Declaration of Trust”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the ~~Code~~ Code, for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ October 31, ~~2014~~2020, 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 ~~May~~ October 31, ~~2014~~2020, in conformity with accounting principles 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 ~~May~~ October 31, ~~2014~~2020, 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~~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. (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~~ Declaration of Trust ~~Declaration~~ or the ~~Acquiring Fund~~ Trust’s Amended and Restated By-~~Laws~~ laws, dated March 8, 2005, as may be amended (the “~~Acquiring Fund Trust by~~By-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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 BC, Class I and Class C R6 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ the Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Merger Agreement (John Hancock Investment Trust)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or 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 ~~May~~ October 31, ~~2014~~2017, 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 ~~May~~ the date October 31, ~~2014~~2017, in conformity with accounting principles 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 ~~May~~ October 31, ~~2014~~2017, 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 ~~Amended and Restated~~ By-~~Laws~~ laws, dated March 8, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares, except that Class B A shares of the Acquiring Fund are convertible into Class A I shares or Class R6 shares of the Acquiring Fund in the manner and on the terms described in the ~~N-14 Registration Statement.~~Acquiring Fund’s registration statement on Form N-1A. (n) The Merger Shares to be issued to the Acquired Fund 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 BI, and Class C R6 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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 the Acquiring Fund Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Investment Trust)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ JHF Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ JHF Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. The ~~Acquiring Fund~~ JHF 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~~ JHF Trust. Each of the ~~Acquiring Fund~~ JHF 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. (b) The ~~Acquiring Fund~~ JHF Trust is 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~~ JHF Trust’s Amended and Restated Agreement and Declaration of Trust dated ~~March 8~~August 12, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ December 31, ~~2014~~2006, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, and the unaudited statement of assets and liabilities, statement of operations, and statement of changes in net assets of the Acquiring Fund and the unaudited schedule of investments of the Acquiring Fund for the period ended March 31, 2007, each of which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the respective dates indicated, 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 ~~May~~ March 31, ~~2014~~BOS-1125024 v2 0516895-00560 2007, 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~~ JHF 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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the board of trustees of ~~the Acquiring Fund~~ JHF Trust (the “~~Acquiring Fund~~ JHF 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,~~ 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~~ JHF Trust or the Acquiring Fund, threatened against the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund which assert liability on the part of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or which materially affect the financial condition of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or the ~~Acquiring Fund~~ JHF Trust’s or the Acquiring ~~Fund’s~~ Funds’ ability to consummate the Reorganization. Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is charged with ornor, to the best of ~~its~~ their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, ~~state,~~ state or local law or regulation or administrative ruling relating to any aspect of ~~its~~ their business. (h) Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is obligated under any provision of the ~~Acquiring Fund~~ JHF Trust Declaration or the ~~Acquiring Fund~~ JHF Trust’s ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust byBy-laws”), 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,~~ 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~~ JHF 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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, Class C and Class C R1 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ JHF 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~~ JHF Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the ~~Acquired~~ Target Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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~~ Trust, dated ~~March 8~~January 22, ~~2005~~2016, as may be amended (the “~~Acquiring Fund Trust Declaration~~Declaration of Trust”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the ~~Code~~ Code, for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, or and is not now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. (d) The ~~Acquired~~ Target Fund has been furnished ~~with~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ August 31, ~~2014~~2020, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers LLP (“PwC”), independent registered public accounting firm; and (ii) the unaudited semiannual report of the Acquiring Fund for the six months ended February 28, ~~which~~ 2021, which, in each case, fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the dates of the respective reports, in conformity with accounting principles 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 ~~May~~ August 31, ~~2014~~2020, 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~~ 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. (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~~Board”), and this Agreement constitutes a valid and binding contract enforceable in accordance with its terms subject to approval by the ~~Acquired~~ Target 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~~ Target 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~~ Declaration of Trust ~~Declaration~~ or the ~~Acquiring Fund~~ Trust’s Amended and Restated By-~~Laws~~ laws, dated ~~March 8~~June 28, 2005, as may be amended (the “~~Acquiring Fund Trust by~~By-laws”), 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~~ Target 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~~ Target 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~~ Target Fund relating to the meeting of the ~~Acquired~~ Target 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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~~ Target Fund for use in the N-14 Registration Statement. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the ~~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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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~~ Target Fund 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 BC, Class I, Class R6 and Class C NAV shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ the Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the ~~Acquired~~ Target Fund for distribution to the shareholders of the ~~Acquired~~ Target 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~~ Target 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the ~~Acquired~~ Target Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund ~~Trust, on behalf of the Acquiring Fund,~~ represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a ~~series of shares of the Acquiring Fund Trust, a Massachusetts business trust~~ Delaware limited liability company duly organized and validly existing under, and in conformity with, the laws of the ~~Commonwealth~~ State of ~~Massachusetts~~Delaware, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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~~Fund. ~~Each of the Acquiring Fund Trust and the~~ 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. (b) The Acquiring Fund ~~Trust~~ is duly registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as ~~an open~~a diversified closed-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~~ has been duly ~~designated~~ established in accordance with the applicable provisions of the Acquiring ~~Fund Trust~~Fund’s Amended and Restated ~~Agreement and Declaration of Trust~~ Limited Liability Company Agreement, dated ~~March 8~~September 1, ~~2005~~2013, as may be amended (the “Acquiring Fund ~~Trust Declaration~~LLC Agreement”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ Sections 851 and 852 of the Code ~~at all times~~ since its ~~inception~~initial election to qualify as a RIC, 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 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~~ with: (i) the annual report of the Acquiring Fund for the fiscal year ended ~~May~~ March 31, ~~2014~~2019, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the date of the report, in conformity with accounting principles 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 ~~May~~ March 31, ~~2014~~2019, 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~~3(d)), 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~~ directors of the Acquiring Fund ~~Trust~~ (the “Acquiring Fund ~~Trust~~ Board of ~~Trustees~~Directors”), 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~~ 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. (h) ~~Neither the Acquiring Fund Trust nor the~~ The Acquiring Fund is not obligated under any provision of the Acquiring Fund ~~Trust Declaration or the Acquiring Fund Trust’s Amended and Restated By-Laws dated March 8, 2005, as may be amended (the “Acquiring Fund Trust by-laws”)~~LLC Agreement, and ~~neither~~ is not 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~~SEC”) by the Acquiring Fund ~~Trust on behalf of the Acquiring Fund and~~ relating to the Merger Shares issuable hereunder, and the ~~proxy~~ information 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~~ Prospectus/ Information 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~~ Statement and at the Closing Date, insofar as it relates to the Acquiring Fund, (i) did and will comply in all material respects with ~~the~~ applicable provisions of the 1933 Act, the 1934 Act, and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement/prospectus~~ Prospectus/ Information Statement 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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 by the Acquiring Fund, and no ~~shareholder~~ Member 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the ~~shareholders~~ members 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all ~~regulatory, trustee,~~ regulatory and ~~shareholder~~ director approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Grosvenor Registered Multi-Strategy Fund (Ti 1), LLC)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ March 31, ~~2014~~2008, and the audited financial statements appearing therein, having been audited by ~~PricewaterhouseCoopers LLP (“PwC”)~~KPMG LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~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 ~~May~~ March 31, ~~2014~~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 Amended and Restated By-Laws dated March 8, 2005, as may be amended (the “Acquiring Fund Trust by-laws”), 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 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 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: 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, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ March 31, ~~2014~~2009, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~2009, 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~~ the statement of assets and liabilities of the Acquiring Fund as of ~~May~~ March 31, ~~2014~~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, has full power and authority to enter into and perform its obligations under this Agreement. The execution, ~~delivery,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the ~~board~~ Board of ~~trustees~~ 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,~~ 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,~~ 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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,~~ 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds III)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ JHF Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ JHF Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. The ~~Acquiring Fund~~ JHF 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~~ JHF Trust. Each of the ~~Acquiring Fund~~ JHF 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. (b) The ~~Acquiring Fund~~ JHF Trust is 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~~ JHF Trust’s Amended and Restated Agreement and Declaration of Trust dated ~~March 8~~August 12, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ December 31, ~~2014~~2006, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, and the unaudited statement of assets and liabilities, statement of operations, and statement of changes in net assets of the Acquiring Fund and the unaudited schedule of investments of the Acquiring Fund for the period ended March 31, 2007, each of which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the respective dates indicated, in conformity with generally accepted accounting principles in the United States applied on a consistent basis.. BOS-1125092 v1 0516895-00561 (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 ~~May~~ March 31, ~~2014~~2007, 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~~ JHF 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,~~ delivery and performance of this Agreement has been duly authorized by all necessary action of the board of trustees of ~~the Acquiring Fund~~ JHF Trust (the “~~Acquiring Fund~~ JHF 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,~~ 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~~ JHF Trust or the Acquiring Fund, threatened against the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund which assert liability on the part of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or which materially affect the financial condition of the ~~Acquiring Fund~~ JHF Trust or the Acquiring Fund or the ~~Acquiring Fund~~ JHF Trust’s or the Acquiring ~~Fund’s~~ Funds’ ability to consummate the Reorganization. Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is charged with ornor, to the best of ~~its~~ their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, ~~state,~~ state or local law or regulation or administrative ruling relating to any aspect of ~~its~~ their business. (h) Neither the ~~Acquiring Fund~~ JHF Trust nor the Acquiring Fund is obligated under any provision of the ~~Acquiring Fund~~ JHF Trust Declaration or the ~~Acquiring Fund~~ JHF Trust’s ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “~~Acquiring Fund~~ JHF Trust byBy-laws”), 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,~~ 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~~ JHF 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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, Class C and Class C R1 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ JHF 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~~ JHF Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The Acquiring Fund Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the Acquiring Fund Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The Acquiring Fund Trust is 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~~August 12, 2005, as may be amended (the “Acquiring Fund Trust Declaration”), and the 1940 Act. (c) The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code for treatment as as, a “regulated investment company” (“RIC”) within the meaning of ~~Section~~ 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, 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 ~~May~~ August 31, 2014, 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 ~~May~~ August 31, 2014, in conformity with accounting principles 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 ~~May~~ August 31, 2014, 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 ~~Amended and Restated~~ By-~~Laws~~ laws dated ~~March 8~~June 28, 2005, as may be amended (the “Acquiring Fund Trust byBy-laws”), 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 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 not misleading; and the ~~proxy statement~~Proxy Statement/~~prospectus~~ 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in [all material respects with the investment policies and investment restrictions set forth in the 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, it is noted that the 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 the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares, except that Class B A shares of the Acquiring Fund are convertible into Class A I shares or Class R6 shares of the Acquiring Fund and Class C shares 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 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 BC, Class I, Class R2, Class R6 and Class C NAV shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file, all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained 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 taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (John Hancock Funds II)

Representations and Warranties of the Acquiring Fund. The ~~Acquiring Fund~~ Trust, on behalf of the Acquiring Fund, represents and warrants to, and agrees with, the Acquired Fund that: (a) The Acquiring Fund is a series of shares of the ~~Acquiring Fund~~ Trust, a Massachusetts business trust duly organized and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all of its assets and to carry out its obligations under this Agreement. 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. (b) The ~~Acquiring Fund~~ Trust is 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 Acquiring Fund has elected to be, and has met the requirements of subchapter M of ~~the~~ Code for treatment as 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 ~~May~~ March 31, ~~2014~~2007, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers ~~LLP (“PwC”)~~LLP, independent registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquiring Fund as of ~~May 31, 2014~~the date indicated, 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 ~~May~~ March 31, ~~2014~~2007, 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,~~ 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,~~ 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 ornor, to the best of ~~its~~ their knowledge, threatened with any violation or investigation of any possible violation of any provisions of any federal, ~~state,~~ state or local law or regulation or administrative ruling relating to any aspect of ~~its~~ their 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 Amended and Restated By-~~Laws~~ laws dated March 8, 2005, as may be amended (the “~~Acquiring Fund~~ Trust byBy-laws”), 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,~~ 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/~~Statement and 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,~~ Act and the 1940 Act and the rules and regulations thereunder; and (ii) does not and 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 not misleading; and the ~~proxy statement/prospectus~~ Proxy Statement and 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. (l) The Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the 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,~~ paid and nonassessable by the Acquiring Fund. In regard to the statement that the outstanding shares will be nonassessable, it is noted that the Acquiring Fund ~~Trust~~ is a “Massachusetts business trust” ~~and~~ and, under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of the Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any 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 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~~ A shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable 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~~ the Trust is a “Massachusetts business trust” ~~and~~ and, under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of ~~Acquiring Fund~~ the Trust. (o) At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution to the shareholders of the Acquired 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. (p) At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory, ~~trustee,~~ trustee and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. (q) The Acquiring Fund has filed, or intends to file, or has obtained extensions to file, all federal, ~~state,~~ state and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay, all federal, ~~state,~~ state and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year in which the Closing Date occurs. 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 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 the Closing Date occurs.

Appears in 1 contract

Samples: Reorganization Agreement (Hancock John Current Interest)

Common use of Representations and Warranties of the Acquiring Fund Clause in Contracts