REPRESENTATIONS OF THE ACQUIRED FUND. The Corporation, on behalf of the Acquired Fund, represents and warrants to the Federated Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly existing, and in good standing under the laws of Maryland. b) The Corporation is registered as an open-end management investment company under the 1940 Act, and the Corporation's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is not in violation, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result in a violation, of any provision of the Corporation's Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of November 30, 2005, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (Federated Municipal Securities Income Trust), Agreement and Plan of Reorganization (Federated Municipal Securities Fund Inc)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust~~Corporation, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ voluntary association duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the Commonwealth of Massachusetts. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~Trust's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation~~Trust's ~~Articles~~ Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. . e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. . f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. . g) The financial statements of the Acquired Fund as of November 30, ~~2005~~2003, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. . h) The unaudited financial statements of the Acquired Fund as of May 31, 2003, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of May 31, 2003, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change~~. i~~. j) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (Federated Income Securities Trust), Agreement and Plan of Reorganization (Federated Income Securities Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to ~~the Federated Trust, on behalf of~~ the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the Commonwealth of Massachusetts. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Trust registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~July 31, ~~2005~~2009, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of January 31, 2007, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (g) and (h) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) All federal and other tax returns and reports of the Acquired Fund required by law to be filed ~~prior to the date hereof~~ have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jk) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, and has no outstanding securities convertible into any of the Acquired Fund shares. l) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances of which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the Commonwealth of Massachusetts, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. m) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. n) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. o) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Trust with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. p) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. q) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Massachusetts law for the execution of this Agreement by the Trust, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Massachusetts law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (Money Market Obligations Trust /New/), Agreement and Plan of Reorganization (Money Market Obligations Trust /New/)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~TRUST, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust~~TRUST, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the Massachusetts. b) The ~~Corporation~~ TRUST is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ TRUST’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's Articles of Incorporation~~ TRUST’s DECLARATION OF TRUST or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~December 31, ~~2005~~2008, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of June 30, 2009, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) As of the date hereof, except as previously disclosed to the Acquiring Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share of any class or series of shares during the twelve-month period preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 0000 Xxx. k) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund and of the Acquired Fund, the Acquired Fund’s Board of Trustees and committees of the Acquired Fund’s Board of Trustees. The stock transfer ledgers and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. l) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and rules thereunder. m) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jn) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund Shares, and has no outstanding securities convertible into any of the Acquired Fund Shares. o) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances to which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the Commonwealth of Massachusetts, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. p) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. q) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. r) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the TRUST with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. s) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. t) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Massachusetts law for the execution of this Agreement by the TRUST, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Massachusetts law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (Federated Insurance Series), Agreement and Plan of Reorganization (Federated Insurance Series)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Acquired Fund Registrant, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust~~Acquiring Fund Registrant, on behalf of the Acquiring Fund, as of the Closing Date unless another date is expressly specified, as follows: a) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the State of Nebraska. b) The ~~Corporation~~ Acquired Fund Registrant is registered as an open-end management investment company under the 1940 Act, ~~and~~ the ~~Corporation's~~ Acquired Fund Registrant’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect, and the Acquired Fund Shares are registered under the Securities Act of 1933, as amended (“1993 Act”), and such registration has not been revoked or rescinded and is in full force and effect. c) The ~~current~~ prospectus and statement of additional information of the Acquired Fund as they may have been amended and most recently filed with the Commission conform in all material respects to the applicable requirements of the ~~Securities~~ 1933 Act ~~of 1933 (the "1933 Act")~~ and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is not in ~~violation~~material violation of, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result in ~~a violation~~the violation of, of any provision of the ~~Corporation's~~ Acquired Fund Registrant’s Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it the Acquired Fund is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. All contracts of the Acquired Fund will be terminated with respect to the Acquired Fund as of the Closing Date (including any such contracts with affiliated persons of the Acquired Fund). f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets~~, which~~. Any such litigation, if adversely determined, would not materially and adversely affect ~~its~~ the Acquired Fund’s financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~March 31, ~~2005~~2011, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of September 30, 2010, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in sub-paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this sub-paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) As of the date hereof, except as previously disclosed to the Acquiring Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share of any class or series of shares during the twelve-month period preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 0000 Xxx. k) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record in all material respects of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund and of the Acquired Fund, the Acquired Fund’s Board and committees of the Acquired Fund’s Board. The stock transfer ledgers and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. l) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and rules thereunder. m) All federal and other tax returns and reports of the Acquired Fund required by law to be filed ~~prior to the date hereof~~ have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jn) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund Shares, and has no outstanding securities convertible into any of the Acquired Fund Shares. o) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances to which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the State of Nebraska, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. p) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. q) The information to be furnished by the Acquired Fund to the Acquiring Fund Registrant for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and regulations. r) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Acquired Fund Registrant with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. s) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. t) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), the 1940 Act or Nebraska law for the execution of this Agreement by the Acquired Fund Registrant, for itself and on behalf of the Acquired Fund, or the performance of the Agreement by the Acquired Fund Registrant, for itself and on behalf of the Acquired Fund, except, in each case, for (i) the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Nebraska law, (ii) such other consents, approvals, authorizations and filings as have been made or received, and (iii) such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2. u) The Acquired Fund, and the Acquired Fund Registrant with respect to the Acquired Fund, has complied and is in compliance in all material respects with the investment policies and restrictions set forth in its registration statement currently in effect. The value of the net assets of the Acquired Fund has been determined and is being determined using portfolio valuation methods that comply in all material respects with the methods described in its registration statement and the requirements of the 1940 Act. There are no legal or governmental actions, investigations, inquiries, or proceedings pending or, to the knowledge of the Acquired Fund, threatened against the Acquired Fund, or the Acquired Fund Registrant with respect to the Acquired Fund, that would question the right, power or capacity of (a) the Acquired Fund to conduct its business as conducted now or at any time in the past, or (b) the Acquired Fund Registrant’s ability to enter into this Agreement on behalf of the Acquired Fund or the Acquired Fund’s ability to consummate the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (Federated World Investment Series Inc), Agreement and Plan of Reorganization (Federated World Investment Series Inc)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate investment series of the Trust, a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Delaware. (b) The ~~Corporation~~ Acquired Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions ~~contemplated herein~~herein contemplated. (g) The audited financial statements of the Acquired Fund ~~as of November~~ dated September 30, ~~2005, and for the fiscal year then ended have been prepared~~ 2012 are in accordance with generally accepted accounting ~~principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date ~~that are~~ not disclosed ~~in such statements~~therein. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~September 30, 2012, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. (i) ~~All federal and other tax returns and reports of~~ At the ~~Acquired Fund required by law to be filed prior to the date hereof have been filed (and~~ Closing Date, all federal and other tax returns and reports of the Acquired Fund required by law to be have been filed ~~from and after the~~ by such date ~~hereof to the Closing Date will be~~ shall have been filed), and all federal and other taxes shown due on ~~such~~ said returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) For each fiscal year of its operation, the Acquired Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains. (k) The Acquired Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the Code); (l) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the ~~Acquired Fund's~~ transfer agent as provided in paragraph 33.3. The Acquired Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, nor is there outstanding any security convertible into any of the Acquired Fund shares. (m) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (n) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund and, subject to approval by the Acquired Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (o) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated hereby is accurate and complete in all material respects and complies in all material respects with federal securities and other laws and regulations thereunder applicable thereto. (p) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a prospectus, which included the proxy statement of the Acquired Fund (the “Prospectus/Proxy Statement”), all of which was included in a Registration Statement on Form N-14 of the Acquiring Fund (the “Registration Statement”), in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act in connection with the meeting of the shareholders of the Acquired Fund to approve this Agreement and the transactions contemplated hereby. The Prospectus/Proxy Statement included in the Registration Statement (other than information therein that relates to the Acquiring Fund and any other fund described therein other than the Acquired Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The Corporation, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Corporation is a corporation that is duly organized, validly existing and in good standing under laws of the State of Maryland. The Acquired Fund is a legally designated, separate series of the Corporation. The Corporation is duly authorized to transact business in the State of Maryland and is qualified to do business in all jurisdictions in which it is required to be so qualified, except jurisdictions in which the failure to so qualify would not have a ~~corporation duly organized~~material adverse effect on the Acquired Fund. The Corporation, ~~validly existing~~on behalf of the Acquired Fund, has all material federal, state and ~~in good standing under~~ local authorizations necessary to own all of the ~~laws of Maryland~~properties and the Assets and to carry on its business as now being conducted, except authorizations which the failure to so obtain would not have a material adverse effect on the Acquired Fund. (b) The Corporation is registered as an open-end management investment company under the 1940 Act, and ~~the Corporation's~~ its registration with the ~~Securities and Exchange~~ Commission ~~(the "Commission")~~ as an investment company under the 1940 Act is in full force and effect. The Corporation is in compliance in all material respects with the 1940 Act and the rules and regulations thereunder with respect to the Acquired Fund. (c) The ~~current prospectus~~ Registration Statement on Form N-14 and ~~statement of additional information~~ the Combined Prospectus/Proxy Statement contained therein as so amended or supplemented (the "N-14 Registration Statement"), as of the effective date of the N-14 Registration Statement and at all times subsequent thereto up to and including the Closing Date, conforms and will conform, as it relates to the Corporation and the Acquired ~~Fund conform~~ Fund, in all material respects to the ~~applicable~~ requirements of the ~~Securities Act of 1933 (the "1933 Act")~~ federal and ~~the 1940 Act,~~ state securities laws and the rules and regulations ~~thereunder~~thereunder and does not and will not include, as it relates to the Corporation and ~~do not include~~ the Acquired Fund, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Any written information furnished by the Corporation with respect to itself and the Acquired Fund for use in the N-14 Registration Statement or any other materials provided in connection with the Reorganization, as of the effective date of the N-14 Registration Statement and at all times subsequent thereto up to and including the Closing Date, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. (d) The Acquired Fund's prospectus, statement of additional information and shareholder reports, each to the extent included or incorporated by reference in the N-14 Registration Statement, are accurate and complete in all material respects and comply in all material respects with federal securities and other laws and regulations, and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances in which such statements were made, not misleading. (e) The Acquired Fund is not in ~~violation~~violation of, and the execution, ~~delivery,~~ delivery and performance of this Agreement ~~(subject to shareholder approval)~~ in accordance with its terms by the Corporation, on behalf of the Acquired Fund, will not result in ~~a violation,~~ the violation of Maryland law or any provision of the Corporation's ~~Articles~~ articles of ~~Incorporation~~ incorporation or Byby-~~Laws~~ laws or of any material agreement, indenture, note, mortgage, instrument, contract, lease or other undertaking to which the Corporation (with respect to the Acquired Fund) or the Acquired Fund is a party or by which it is bound, nor will the execution, delivery and performance of this Agreement by the Corporation, on behalf of the Acquired Fund, result in the acceleration of any obligation, or the imposition of any penalty, under any material agreement, indenture, instrument, contract, ~~lease,~~ lease or other undertaking to which the Corporation (with respect to the Acquired Fund) or the Acquired Fund is a party or by which it is bound. e(f) The Corporation, on behalf of the Acquired ~~Fund~~ Fund, has no material ~~contracts~~ contracts, agreements or other commitments ~~(other than this Agreement)~~ that will not be terminated ~~with~~ without liability to it before the Closing Date, ~~except for~~ other than liabilities, if any, to be discharged ~~as provided in paragraph 1.3 hereof~~prior to the Closing Date or that are Assumed Liabilities. f(g) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, ~~administrative proceeding~~claims, actions, suits, proceeding or investigation by of or before any court or governmental body is ~~presently~~ pending or to ~~its~~ the Corporation's knowledge threatened against the Acquired Fund or any of its properties or ~~assets,~~ Assets which, if adversely determined, would materially and adversely affect ~~its~~ the Corporation or the Acquired Fund's financial condition, the conduct of its ~~business,~~ business or which would prevent or hinder the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, ~~decree,~~ decree or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g(h) The audited financial statements of the Acquired Fund as of ~~November 30~~October 31, ~~2005~~2007, ~~and for~~ the most recent fiscal year ~~then ended~~ ended, have been prepared in accordance with accounting principles generally accepted ~~accounting principles,~~ in the United States of America consistently applied and have been audited by PricewaterhouseCoopers LLP, ~~independent registered public accountants,~~ and such statements (true and complete copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition and the results of ~~the Acquired Fund as of such date, and there are no known contingent liabilities~~ operations of the Acquired Fund as of such date and the results of operations and changes in net assets for the periods indicated, and there are no liabilities of the Acquired Fund whether actual or contingent and whether or not determined or determinable as of such date that are required to be disclosed but are not disclosed in such statements. h(i) There have been no changes in the financial position of the Acquired Fund as reflected in the audited financial statements for the fiscal year ended October 31, 2007, other than those occurring in the ordinary course of business consistent with past practice in connection with the purchase and sale of portfolio assets, the issuance and redemption of Acquired Fund shares and the payment of normal operating expenses, dividends and capital gains distributions. Since the date of the financial statements referred to in paragraph (g4.1(h) above, there ~~have~~ has been no material adverse ~~changes~~ change in the Acquired Fund's financial condition, assets, liabilities or business, results of operations or the manner of conducting business ~~(other than changes occurring in~~ of the ~~ordinary course of business)~~Acquired Fund, or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted in writing by the Acquiring Fund. For the purposes of this paragraph (h4.1(i), a decline in the net asset value of the Acquired Fund due to declines in the value of the Acquired Fund's assets, the discharge of the Acquired Fund's liabilities or the redemption of the Acquired Fund's shares by an Acquired Fund's Shareholders shall not constitute a material adverse change. (j) Since October 31, 2007 there has not been: (i) ~~All federal and other tax returns and reports~~ any change in the business, results of operations, assets or financial condition or the manner of conducting the business of the Acquired Fund ~~required~~ other than changes in the ordinary course of its business, or any pending or threatened litigation, which has had or may have a material adverse effect on such business, results of operations, assets or financial condition; (ii) issued any option to purchase or other right to acquire shares of the Acquired Fund granted by ~~law~~ or on behalf of the Acquired Fund to ~~be filed prior~~ any person other than subscriptions to purchase shares at net asset value in accordance with the terms in the prospectus for the Acquired Fund; (iii) any entering into, amendment or termination of any contract or agreement by or on behalf of the Acquired Fund, except as otherwise contemplated by this Agreement; (iv) any indebtedness incurred, other than in the ordinary course of business, by or on behalf of the Acquired Fund for borrowed money or any commitment to borrow money by or on behalf of the Acquired Fund; (v) any amendment of the Corporation's organizational documents in a manner materially affecting the Acquired Fund; and (vi) any grant or imposition of any lien, claim, charge or encumbrance (other than encumbrances arising in the ordinary course of business with respect to covered options) upon any asset of the Acquired Fund other than a lien for taxes not yet due and payable. (k) As of the date hereof ~~have been filed (~~and at the Closing Date, all federal and other tax returns and reports of the Acquired Fund required by law to be filed ~~from~~ have or shall have been timely and ~~after the date hereof to the Closing Date~~ duly filed by such dates (including any extensions) and are or will be ~~filed)~~correct in all material respects, and all federal and other taxes ~~shown due on~~ required to be paid pursuant to such returns and reports have been ~~(or will be)~~ paid~~, or provision shall have been made for the payment thereof~~. To the best of the Acquired Fund's ~~knowledge~~knowledge after reasonable investigation, no such return is currently under ~~audit~~audit or examination, and no assessment or deficiency has been asserted with respect to any such returns. j(l) The Corporation has authorized shares of common stock allocated to the Acquired Fund consisting of 100,000,000 of shares having a par value of $0.0001 per share, of which it is authorized to issue 50,000,000 shares of Class A shares and 25,000,000 of shares of each of Class B and Class C shares for the Acquired Fund. All issued and outstanding shares of common stock of the Acquired Fund ~~are~~ have been offered and sold in compliance in all material respects with applicable registration requirements of the Securities Act of 1933, as amended (the "1933 Act") or an exemption there from and applicable state securities laws and are, and on the Closing Date will be, duly authorized and validly issued and outstanding, fully paid and ~~non-assessable by the Acquired Fund~~nonassessable, and are not subject to preemptive or dissenter's rights. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Sunamerica Equity Funds)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Equity Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of~~ Trust and the Acquired ~~Fund, represents~~ Fund represent and ~~warrants~~ warrant to the ~~Federated Trust, on behalf of~~ IMST Trust and the Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate series of the Trust, a ~~corporation~~ statutory trust duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~the State of Delaware. The Trust has the power to own all of its properties and assets and, subject to approval by the Acquired Fund Shareholders, to perform its obligations under this Agreement. (b) The ~~Corporation~~ Trust is registered as an open-end management investment ~~company under the 1940 Act~~company, and ~~the Corporation's~~ its registration with the U.S. Securities and Exchange Commission (the ~~"Commission"~~“SEC”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 ~~Act~~ Act”), is in full force and effect. (c) The current ~~prospectus~~ Prospectus and ~~statement~~ Statement of ~~additional information~~ Additional Information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is not ~~in violation~~currently engaged in, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result ~~in a violation~~in, the violation of any material provision of the ~~Corporation's Articles~~ Agreement and Declaration of ~~Incorporation or By-Laws~~ Trust of the Trust or of any material agreement, exemptive order, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund Shares are the only outstanding equity interests in the Acquired Fund. (f) The Acquired Fund has no material contracts or other commitments (other than this ~~Agreement~~Agreement and agreements for the purchase and sale of securities or other permitted investments) that if terminated will ~~be terminated with~~ result in material liability to ~~it before~~ the ~~Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof~~Acquired Fund. f(g) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects ~~its~~ the Acquired Fund’s business or its ability to consummate the transactions contemplated herein. g(h) The financial statements of the Acquired Fund ~~as of November 30, 2005, and~~ for the fiscal year ~~then~~ ended ~~have been prepared~~ April 30, 2019 are in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of ~~such~~ April 30, 2019, in all material respects as of that date, and there are no known contingent liabilities of the Acquired Fund as of ~~such~~ that date ~~that are~~ not disclosed in such statements. h(i) Since ~~the date of the financial statements referred to in paragraph (g) above~~April 30, 2019, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of ~~indebtedness maturing more than one year from the date such indebtedness was incurred~~material indebtedness, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (hi), ~~a decline~~ distributions of net investment income and net realized capital gains, changes in ~~the net asset~~ portfolio securities, changes in market value of ~~the Acquired Fund~~ portfolio securities, or net redemptions shall not constitute a material adverse change. i(j) All ~~federal and other tax~~ Tax (as defined below) returns and reports of (including, but not limited to, information returns), that are required to have been filed by the Acquired Fund ~~required by law to be filed prior to the date hereof~~ have been ~~filed (~~duly and ~~all federal and other tax~~ timely filed. All such returns and reports are true, correct and complete, and accurately state the amount of Tax (if any) owed for the periods covered by the returns, or, in the case of information returns, the amount and character of income or other information required to be reported by the Acquired ~~Fund required by law~~ Fund. All Taxes due or properly shown to be ~~filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown~~ due on such returns and reports have been ~~(or will be)~~ paid, or provision ~~shall have~~ has been made ~~for the payment thereof~~and properly accounted therefor. To the ~~best~~ knowledge of the Trust, no return of the Acquired Fund is currently being audited by any federal, state, local or foreign taxing authority. To the knowledge of the Trust, there are no deficiency assessments (or deficiency assessments proposed in writing) with respect to any Taxes of the Acquired Fund~~'s knowledge~~. As used in this Agreement, “Tax” or “Taxes” means all federal, state, local and foreign (whether imposed by a country or political subdivision or authority thereunder) income, gross receipts, excise, sales, use, value added, employment, withholding, franchise, profits, property, ad valorem or other taxes, stamp taxes and duties, fees, assessments or charges, whether payable directly or by withholding, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority (foreign or domestic) with respect thereto, including any obligations to indemnify or otherwise assume or succeed to such a liability of any other person. There are no ~~such return is currently under audit~~levies, ~~and no assessment has been asserted~~ liens or encumbrances relating to Taxes existing, threatened or pending with respect to ~~such returns. j) All issued and outstanding shares~~ the assets of the Acquired Fund ~~are duly~~ (other than liens for Taxes not yet due and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3payable).

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Investment Managers Series Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. ~~The Corporation, on behalf~~ Except as has been disclosed to IMST in a written instrument executed by an officer of the Acquired Fund, the Acquired Fund represents and warrants to ~~the Federated Trust, on behalf of~~ IMST and the Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated, separate series of a~~ corporation duly organized, validly ~~existing,~~ existing and in good standing under the laws of the State of Maryland, with power under its Articles of Incorporation (the “Articles”) to own all of its properties and assets and to carry on its business as it is now being conducted. (b) The ~~Corporation~~ Acquired Fund is a registered ~~as an~~ open-end management investment company, and its registration with the Commission as an investment company under the 1940 Act, and the ~~Corporation's~~ registration ~~with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement~~ of ~~additional information~~ shares of the Acquired Fund ~~conform~~ for offer and sale under the Securities Act of 1933, as amended (the “1933 Act”), is effective. (c) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquired Fund of the transactions contemplated herein (other than the dissolution of the Acquired Fund), except such as may be required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), or the 1940 Act and such as may be required by state securities laws. (d) The current Prospectus and Statement of Additional Information of the Acquired Fund and each Prospectus and Statement of Additional Information of the Acquired Fund used during the two years prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the ~~Securities~~ 1933 Act ~~of 1933 (the "1933 Act")~~ and the 1940 ~~Act,~~ Act and the rules and regulations thereunder, and do not, or did not at the time of their use, include any untrue statement of a material fact or omit ~~to state~~ any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d(e) At the Effective Time, the Acquired Fund will have good and valid title to the Assets and full right, power, and authority to sell, assign, transfer and deliver the Assets hereunder free of any liens or other encumbrances, except those liens and encumbrances arising in the ordinary course of business or as to which the Acquiring Fund has received notice, and upon delivery and payment for the Assets, the Acquiring Fund will acquire good and valid title thereto, subject to no restrictions on the full transfer thereof, excluding such restrictions as might arise under the 1933 Act or other applicable law. (f) The Acquired Fund is not ~~in violation~~engaged currently, and the execution, delivery, and performance of this Agreement (subject to ~~shareholder~~ stockholder approval) will not ~~result~~ result, in a ~~violation, of any provision~~ violation (i) of the ~~Corporation's~~ Articles ~~of Incorporation~~ or X.X. Xxxxxxx & Co.’s By-Laws or (ii) of any ~~material~~ agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound, other than such violations that would not a cause a Material Adverse Change with respect to the Acquired Fund. e(g) The execution, delivery and performance of this Agreement will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquired Fund is a party or by which it is bound that would materially and adversely affect its ability to consummate the transactions contemplated by this Agreement or that would cause a Material Adverse Change with respect to the Acquired Fund. (h) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that if terminated will result in material liability to the Acquired Fund or under which (whether or not terminated) any material payments for periods subsequent to the Closing Date will be ~~terminated with liability to it before~~ due from the ~~Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof~~Acquired Fund. f(i) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or or, to its ~~knowledge~~ knowledge, threatened against the Acquired Fund or any of its properties or ~~assets, which~~assets that, if adversely determined, would materially and adversely affect ~~its financial condition, the conduct of its business, or the ability of~~ the Acquired ~~Fund~~ Fund’s ability to ~~carry out~~ consummate the transactions contemplated by this ~~Agreement~~Agreement or would cause a Material Adverse Change with respect to the Acquired Fund. The Acquired Fund ~~knows of no facts that might form the basis for the institution of such proceedings and~~ is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects ~~its~~ the Acquired Fund’s business or its ability to consummate the transactions contemplated herein. g(j) The ~~financial statements~~ Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquired Fund ~~as of November 30~~at December 31, ~~2005, and for the fiscal year then ended~~ 2008 have been ~~prepared in accordance with generally accepted accounting principles~~audited by___________________, ~~and audited by PricewaterhouseCoopers LLP,~~ an independent registered public ~~accountants~~accounting firm, and such statements (copies of which have been furnished to ~~the Acquiring Fund~~IMST) ~~fairly reflect~~ present fairly, in all material respects, the financial condition of the Acquired Fund as of such ~~date~~date in accordance with U.S. GAAP (except as may be indicated in the notes thereto), and there are no known contingent liabilities of the Acquired Fund of a material amount required to be reflected on a balance sheet (including the notes thereto) in accordance with U.S. GAAP as of such date ~~that are~~ not disclosed ~~in such statements~~therein. h(k) On the closing date, IMST shall have been furnished with an unaudited statement of assets, liabilities and capital and a schedule of investments of the Acquired Fund, each as of ____________, 2009. These statements shall present fairly, in all material respects, the financial position of the Acquired Fund as of such date in accordance with U.S. GAAP (except as may be indicated in the notes thereto), and there are no known contingent liabilities of the Acquired Fund of a material amount required to be on a balance sheet in accordance with U.S. GAAP as of such date not disclosed therein. (l) Since ~~the date of the financial statements referred to in paragraph (g) above~~_____________, 2009, there have been no ~~material adverse changes~~ Material Adverse Changes in the Acquired Fund or any incurrence by the Acquired Fund of material indebtedness (except for indebtedness incurred in the ordinary course of business). For purposes of this Agreement, “Material Adverse Change”, with respect to a Fund or an Investment Company, means a material adverse change in such Fund's ’s or Investment Company’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business); provided that, ~~or any incurrence by the Acquired Fund~~ (i) a distribution of ~~indebtedness maturing more than one year from the date such indebtedness was incurred~~net investment income and/or net realized capital gains, ~~except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes~~ (ii) a change in portfolio securities, (iii) a change in market value of ~~this paragraph~~ portfolio securities, (~~h),~~ iv) a decline in the net asset value per share, (v) the discharge of liabilities, (vi) the net redemption of shares, (vii) changes or conditions affecting the asset management industry, stock markets or the financial markets generally, (viii) changes in economic, regulatory or political conditions generally, (ix) changes in the business of the Acquired Fund after the date hereof that are attributable directly or indirectly to IMST or its affiliates, and/or (x) changes resulting from this Agreement or the transactions contemplated hereby, shall not constitute a ~~material adverse change~~Material Adverse Change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Investment Managers Series Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Acquiree, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the Acquiring Fund,~~ Acquirer as follows: a) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly ~~existing,~~ existing and in good standing under the laws of Maryland. b) The ~~Corporation~~ Acquiree is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~Acquiree's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act") ), and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation~~Acquiree's Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. . e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. . f) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. . g) The financial statements of the Acquired Fund as of November 30, ~~2005~~2008, and for the fiscal year then ~~ended~~ ended, have been prepared in accordance with generally accepted accounting principles, and audited by ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, independent registered public ~~accountants~~accounting firm, and such statements (copies of which have been furnished to the Acquiring Fund) fairly and accurately reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Reorganization Agreement (American Century World Mutual Funds Inc)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund hereby represents and warrants to ~~the Federated Trust, on behalf of~~ the Acquiring Fund, as follows, which representations and warranties shall be true and correct on the date hereof and agrees to confirm the continuing accuracy and completeness of the following at the Closing Date: (a) The Acquired Fund is a ~~legally designated,~~ separate series of the Trust, a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the State of Delaware. (b) The ~~Corporation~~ Trust is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act") ), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation~~Trust's ~~Articles~~ Amended and Restated Agreement and Declaration of ~~Incorporation~~ Trust of the Trust dated September 7, 1998, as amended through November 20, 2006 ("Declaration of Trust"), or By-~~Laws~~ Laws, as amended and restated November 18, 2004 ("By-laws") or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. (f) Except as otherwise disclosed in writing to ~~and accepted by~~ the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. (g) The Acquired Fund's audited statement of assets and liabilities as of September 30, 2011, and unaudited statement of assets and liabilities as of March 31, 2012, were prepared in accordance with U.S. generally accepted accounting principles (except as set forth in the notes thereto), consistently applied throughout the periods then ended, and fairly present the financial ~~statements~~ condition and results of operations of the Acquired Fund as of ~~November 30, 2005,~~ the respective dates thereof and for the ~~fiscal year then ended have been prepared~~ respective periods covered thereby subject, in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the ~~Acquiring Fund) fairly reflect the financial condition~~ case of the ~~Acquired Fund as of such date~~unaudited financial statements, ~~and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements~~to normal year-end audit adjustments. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~March 31, 2012, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to ~~and accepted by~~ the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. (i) All federal and other tax returns and reports of the Acquired Fund required by law to ~~be filed prior to the date hereof~~ have been filed (giving effect to any extensions) have been timely filed and are or were true, correct and complete in all material respects as of the time of their filing, and all ~~federal and other tax returns and reports~~ taxes of the Acquired Fund ~~required by law to be filed from~~ which are due and ~~after the date hereof to the Closing Date will be filed), and all federal and other taxes~~ payable (whether or not shown ~~due~~ on ~~such returns and reports have been (or will be~~any tax records) ~~paid, or provision~~ shall have been timely paid in full or provision has been made for ~~the~~ payment thereof. To The Acquired Fund is not liable for taxes of any person other than itself and is not a party to or otherwise bound by any tax sharing, allocation, assumption or indemnification agreement or arrangement. All of the ~~best~~ Acquired Fund's tax liabilities have been adequately provided for on its books and records in respect of all periods ending on or before the date of such books and records. The Acquired Fund has not had any tax deficiency or liability asserted against it that has not been previously disclosed in writing to the Acquiring Fund or question with respect thereto raised, and no dispute, audit, investigation, proceeding or claim concerning any tax liabilities of the Acquired Fund has been raised by the Internal Revenue Service or by any other governmental authority in writing, and to the Acquired Fund's knowledge, no such ~~return is currently under~~ dispute, audit, investigation, proceeding or claim is pending, being conducted or claimed. (j) The Acquired Fund has elected to be, and has met the requirements of Subchapter M of the Code for qualification and treatment as, a "regulated investment company" within the meaning of Sections 851 et seq. of the Code in respect of each taxable year since the commencement of operations, and shall continue to meet such requirements at all times through the Closing Date, treating the Closing Date as the close of its tax year if the year does not otherwise close on such date. The Acquired Fund has not at any time since its inception been liable for and is not now liable for any material income or excise tax pursuant to Section 852 or 4982 of the Code. The Acquired Fund has no ~~assessment~~ other material tax liability (foreign, state, or local), except as accrued on the Acquired Fund's books and records. The Acquired Fund has ~~been asserted~~ no earnings and profits accumulated with respect to ~~such returns~~any taxable year in which the provisions of Subchapter M of the Code did not apply. j(k) ~~All issued~~ The Acquired Fund is not under the jurisdiction of a court in a "Title 11 or similar case" (within the meaning of Section 368(a)(3)(A) of the Code). (l) Except as otherwise disclosed in writing to the Acquiring Fund, the Acquired Fund is in compliance in all material respects with the Code and ~~outstanding~~ applicable regulations promulgated under the Code pertaining to the reporting of dividends and other distributions on and redemptions of its shares and has withheld in respect of dividends and other distributions and redemption proceeds and paid to the proper taxing authority all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder. (m) The Acquired Fund has not granted any waiver, extension or comparable consent regarding the application of the statute of limitations with respect to any taxes or tax return that is outstanding, nor has any request for such waiver or consent been made. (n) The Acquired Fund does not own any "converted property" (as that term is defined in Treasury Regulation Section 1.337(d)-7(a)(1)) that is subject to the rules of Section 1374 of the Code as a consequence of the application of Section 337(d)(1) of the Code and Treasury Regulations thereunder. (o) The Acquired Fund has not previously been a party to a reorganization under Section 368(a) of the Code. (p) The Acquired Fund has not received written notification from any tax authority that asserts a position contrary to any of the above representations in (i) through (o). (q) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund's assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (r) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund ~~are duly~~ and ~~validly issued~~ this Agreement constitutes a valid and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records binding obligation of the Acquired Fund~~'s transfer agent~~ , enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles. (s) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements and other documents that may be necessary in connection with the transactions contemplated hereby is accurate and complete in all material respects and complies in all material respects with federal securities and other laws and regulations thereunder applicable thereto. (t) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Registration Statement on Form N-14 of the Acquiring Fund (the "Registration Statement"), in ~~paragraph 3~~compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act") and the 1940 Act. The Prospectus/Information Statement included in the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Funds Group Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the Federated Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated~~, separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the State of Delaware. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Trust’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November~~ September 30, ~~2005~~2008, and for the fiscal year then ~~ended~~ ended, have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of March 31, 2009, and for the six months then ended, have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) As of the date hereof, except as previously disclosed to the Acquiring Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share of any class or series of shares during the twelve-month period preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 0000 Xxx. k) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund and of the Acquired Fund, the Acquired Fund’s Board of Trustees and committees of the Acquired Fund’s Board of Trustees. The stock transfer ledgers and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. l) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and rules thereunder. m) All federal and material other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jn) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund Shares, and has no outstanding securities convertible into any of the Acquired Fund Shares. o) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances to which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the State of Delaware, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. p) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. q) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. r) From the effective date of the Registration Statement (as defined in paragraph 5.7) through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Trust with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. s) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation as contemplated herein in paragraph 1.4. t) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Delaware law for the execution of this Agreement by the Trust, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Delaware law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Equity Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. ~~The Corporation, on behalf of~~ Esoterica Trust and the Acquired ~~Fund, represents~~ Fund represent and ~~warrants~~ warrant to the ~~Federated Trust, on behalf of~~ IMST Trust and the Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is is, and has at all times since its formation been, the [sole series] of Esoterica Trust, a ~~legally designated, separate series of a corporation~~ statutory trust duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~the State of Delaware. Esoterica Trust has the power to own all of its properties and assets and, subject to approval by the Acquired Fund’s shareholders, to perform its obligations under this Agreement. (b) ~~The Corporation~~ Esoterica Trust is registered as an open-end management investment ~~company under the 1940 Act~~company, and ~~the Corporation's~~ its registration with the U.S. Securities and Exchange Commission (the ~~"Commission"~~“SEC”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 ~~Act~~ Act”), is in full force and effect. (c) The current ~~prospectus~~ Prospectus and ~~statement~~ Statement of ~~additional information~~ Additional Information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is not ~~in violation~~currently engaged in, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result ~~in a violation~~in, the violation of any material provision of the ~~Corporation's Articles~~ Agreement and Declaration of ~~Incorporation~~ Trust of Esoterica Trust or its By-~~Laws~~ Laws, or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund Shares are the only outstanding equity interests in the Acquired Fund. (f) The Acquired Fund has no material contracts or other commitments (other than this ~~Agreement~~Agreement and agreements for the purchase and sale of securities or other permitted investments) that if terminated will ~~be terminated with~~ result in material liability to ~~it before~~ the ~~Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof~~Acquired Fund. f(g) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects ~~its~~ the Acquired Fund’s business or its ability to consummate the transactions contemplated herein. g(h) The financial statements of the Acquired Fund ~~as of November 30, 2005, and~~ for [the most recently completed fiscal year/the fiscal year ~~then~~ ended ~~have been prepared~~ October 31, 2021] are in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of the end of such fiscal year, in all material respects as of that date, and there are no known contingent liabilities of the Acquired Fund as of ~~such~~ that date ~~that are~~ not disclosed in such statements. h(i) Since the ~~date~~ end of the ~~financial statements referred to in paragraph (g) above~~Acquired Fund’s [most recently completed fiscal year/fiscal year ended October 31, 2021], there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of ~~indebtedness maturing more than one year from the date such indebtedness was incurred~~material indebtedness, except as otherwise disclosed in writing to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (hi), ~~a decline~~ distributions of net investment income and net realized capital gains, changes in ~~the net asset~~ portfolio securities, changes in market value of ~~the Acquired Fund~~ portfolio securities, or net redemptions shall not constitute a material adverse change. i(j) All ~~federal and other tax~~ Tax (as defined below) returns and reports of (including, but not limited to, information returns) that are required to have been filed by the Acquired Fund ~~required by law to be filed prior to the date hereof~~ have been ~~filed (~~duly and ~~all federal and other tax~~ timely filed. All such returns and reports were true, correct and complete in all material respects as of the ~~Acquired Fund required by law~~ time of their filing. All Taxes due or properly shown to be ~~filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown~~ due on such returns and reports have been ~~(or will be)~~ paid, or provision ~~shall have~~ has been made ~~for the payment thereof~~and properly accounted therefor. To the ~~best~~ knowledge of ~~the Acquired Fund's knowledge~~Esoterica Trust, no such return is currently ~~under audit~~being audited by any federal, ~~and~~ state, local or foreign taxing authority. To the knowledge of Esoterica Trust, there are no ~~assessment has been asserted~~ deficiency assessments (or deficiency assessments proposed in writing) with respect to any Taxes of the Acquired Fund. As used in this Agreement, “Tax” or “Taxes” means all federal, state, local and foreign (whether imposed by a country or political subdivision or authority thereunder) income, gross receipts, excise, sales, use, value added, employment, franchise, profits, property, ad valorem or other taxes, stamp taxes and duties, fees, assessments or charges, whether payable directly or by withholding, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority (foreign or domestic) with respect thereto, and including any obligations to indemnify or otherwise assume or succeed to such ~~returns. j) All issued and outstanding shares~~ a liability of any other person. There are no levies, liens or encumbrances relating to Taxes existing, pending or threatened in writing with respect to the assets of the Acquired Fund ~~are duly~~ (other than liens for Taxes not yet due and ~~validly issued and outstanding, fully paid and non-assessable by the Acquired Fund~~payable). ~~All of the issued and outstanding shares of the~~ The Acquired Fund ~~will, at~~ has not changed its annual accounting period within the ~~time of~~ 60-month period ending on the Closing Date. For purposes of this paragraph 4.1(j), references to the “Acquired Fund” shall be ~~held by~~ read as references to the ~~persons and in~~ “Esoterica Trust” to the ~~amounts set forth in the records~~ extent appropriate under applicable law, including Section 851(g) of the ~~Acquired Fund's transfer agent as provided in paragraph 3~~Code.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Investment Managers Series Trust II)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate investment series of the Trust, a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Massachusetts. (b) The ~~Corporation~~ Acquired Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the ~~statements therein~~statements, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ on or prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph ~~1.3 hereof~~1.3. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the ~~transactions contemplated by this Agreement~~Reorganization. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the Reorganization or the transactions contemplated herein. (g) The audited financial statements of the Acquired Fund ~~as of November~~ dated June 30, ~~2005, and for the fiscal year then ended have been prepared~~ 2014 are in accordance with generally accepted accounting ~~principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date ~~that are~~ not disclosed ~~in such statements~~therein. (h) The financial statements of the Acquired Fund as of December 31, 2014 and for the period then ended are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date not disclosed therein. (i) Since the date of the financial statements referred to in ~~paragraph~~ subsection (gh) above, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i(j) All ~~federal~~ federal, state, local and other tax returns and reports of the Acquired Fund required by law to be filed ~~prior to the date hereof~~ by it (taking into account permitted extensions for filing) have been timely filed (and are complete and correct in all ~~federal~~ material respects. All federal, state, local and other ~~tax returns and reports~~ taxes of the Acquired Fund required ~~by law~~ to be ~~filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes~~ paid (whether or not shown as due on any such ~~returns and reports~~ return or report) have been ~~(or will be)~~ paid, or provision shall have been made for the payment ~~thereof~~thereof and any such unpaid taxes as of the date of the financial statements referred to in subsection (g) above are properly reflected on such financial statements. To the ~~best of~~ Acquired Fund’s knowledge, no tax authority is currently auditing or preparing to audit the Acquired Fund~~'s knowledge, no such return is currently under audit~~, and no assessment or deficiency for taxes, interest, additions to tax or penalties has been asserted ~~with respect to such returns~~against the Acquired Fund. j(k) For each taxable year of its operations (including the taxable year ending on the Closing Date), the Acquired Fund has been or will be treated as a separate corporation for federal income tax purposes pursuant to Section 851(g) of the Code, has met or will meet the requirements of Subchapter M of the Code for qualification as a regulated investment company and has elected to be treated as such, has been and will be eligible to compute and has computed and will compute its federal income tax under Section 852 of the Code, and will have distributed on or prior to the Closing Date all its investment company taxable income (determined without regard to the deduction for dividends paid), the excess of its interest income excludable from gross income under Section 103(a) of the Code over its deductions disallowed under Sections 265 and 171(a)(2) of the Code, and its net capital gain (as such terms are defined in the Code) after reduction for any available capital loss carryover as of the Closing Date that has accrued or will accrue on or prior to the Closing Date. (l) The Acquired Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the Code). (m) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the ~~Closing Date~~Closing, be held by the persons and in the amounts set forth in the records of the ~~Acquired Fund's~~ transfer agent as provided in paragraph 33.3. The Acquired Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquired Fund shares, nor is there outstanding any security convertible into any Acquired Fund shares. (n) At the Closing, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (o) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Trust’s Board of Trustees and, subject to the approval of the Acquired Fund Shareholders, Fund, and this Agreement constitutes a valid and legally binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (p) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the Reorganization is accurate and complete in all material respects and complies in all material respects with applicable federal securities and other laws and regulations. (q) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of the Prospectus/Proxy Statement, all of which was included in a Registration Statement on Form N-14 of the Acquiring Fund (the “Registration Statement”), in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act in connection with the Reorganization. The Prospectus/Proxy Statement included in the Registration Statement (other than information that relates to the Acquiring Fund and any other fund described other than the Acquired Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Income Securities Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated~~ Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated, separate series of a corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the Commonwealth of Massachusetts. b) The ~~Corporation~~ Acquired Fund is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Acquired Fund’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's~~ Acquired Fund’s Articles of ~~Incorporation~~ Incorportion or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~March 31, ~~2005,~~ 2008 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of September 30, 2008 and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) As of the date hereof, except as previously disclosed to the Acquired Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share during the twelve-month preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 0000 Xxx. k) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund, the Acquired Fund’s Board of Directors and committees of the Acquired Fund’s Board of Directors. The stock transfer ledger and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. l) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and xxxxx thereunder. m) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jn) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, and has no outstanding securities convertible into any of the Acquired Fund shares. o) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances of which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the State of Maryland, the Acquiring Fund will acquire good and marketable title to such assets, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. p) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. q) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. r) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. s) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. t) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Maryland law for the execution of this Agreement by the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Maryland law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Equity Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of~~ Xxxxxxx Funds and the Acquired ~~Fund, represents~~ Fund represent and ~~warrants~~ warrant to ~~the Federated Trust, on behalf of~~ TPM and the Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate series of a ~~corporation~~ statutory business trust, duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~the State of Delaware. (b) The ~~Corporation~~ Acquired Fund is a separate series of a Delaware statutory business trust that is registered as an open-end management investment company under the Investment Company Act of 1940, as amended (the “1940 Act”), and ~~the Corporation's~~ such Delaware statutory business trust’s registration with the U.S. Securities and Exchange Commission (the ~~"Commission"~~“SEC”) ~~as an investment company under the 1940 Act~~ is in full force and effect. (c) The current ~~prospectus~~ Prospectus and ~~statement~~ Statement of ~~additional information~~ Additional Information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result in ~~a violation,~~ the violation of any material provision of ~~the Corporation's Articles~~ The Xxxxxxx Funds’ Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that if terminated will ~~be terminated with~~ result in material liability to ~~it before~~ the ~~Closing Date~~Acquired Fund, except for liabilities, if any, to be discharged ~~as provided~~ or reflected in ~~paragraph 1.3 hereof~~the Statement of Assets and Liabilities. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects ~~its~~ the Acquired Fund’s business or its ability to consummate the transactions contemplated herein. (g) The financial statements of the Acquired Fund ~~as of November 30, 2005, and for the fiscal year then ended have been prepared~~ are in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of ~~such~~ December 31, 2009, in all material respects as of that date, and there are no known contingent liabilities of the Acquired Fund as of ~~such~~ that date ~~that are~~ not disclosed in such statements. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~December 31, 2009, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of ~~indebtedness maturing more than one year from the date such indebtedness was incurred~~material indebtedness, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), ~~a decline~~ distributions of net investment income and net realized capital gains, changes in ~~the net asset~~ portfolio securities, changes in market value of ~~the Acquired Fund~~ portfolio securities, or net redemptions shall not constitute a material adverse change. (i) ~~All federal and other tax returns and reports of~~ At the ~~Acquired Fund required by law to be filed prior to the date hereof have been filed (and~~ Closing Date, all federal and other tax returns and reports of the Acquired Fund required by law to be filed ~~from and after the~~ by such date ~~hereof~~ (giving effect to ~~the Closing Date will be~~ extensions), shall have been filed), and all federal and other taxes shown due on such returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. All of the Acquired Fund’s tax liabilities will have been adequately provided for on its books. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date, will be duly and validly issued and outstanding, fully paid and non-assessable by the Acquired ~~Fund~~Fund and will have been issued in compliance with all applicable registration or qualification requirements of federal and state securities laws. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, and has no outstanding securities convertible into any of the Acquired Fund shares. (k) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder. Upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, including such restrictions as might arise under the 1933 Act, other than as disclosed to and accepted by the Acquiring Fund. (l) The execution, delivery, and performance of this Agreement has been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund’s Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (m) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and other laws and regulations. (n) From the date of this Agreement through the Closing Date, any written information furnished by the Acquired Fund with respect to the Acquired Fund for use in the Proxy Statement to be prepared, filed and distributed in accordance with Schedule 14A (as further defined in paragraph 5.8), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not materially misleading. (o) From the effective date of this Agreement through the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund’s Shareholders and on the Closing Date, any written information furnished by the Acquired Fund with respect to the Acquired Fund for use in the Registration Statement or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not materially misleading (p) The Acquired Fund has elected to qualify and has qualified as a “regulated investment company” (a “RIC”) under the Code as of and since its first taxable period; has been a RIC under the Code at all times since the end of its first taxable year when it so qualified; and qualifies and shall continue to qualify as a RIC under the Code for the period beginning on the first day of its current taxable year and ending on the Closing Date. The Acquired Fund has not at any time since its inception been liable for, and is not now liable for, any material income or excise tax pursuant to Section 852 or 4982 of the Code. The Acquired Fund has duly filed all federal, state, local and foreign tax returns that are required to have been filed, and all taxes of the Acquired Fund that are due and payable have been paid except for amounts that alone or in the aggregate would not reasonably be expected to have a material adverse effect. The Acquired Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its shares of beneficial interest and to withholding in respect of dividends and other distributions to shareholders, and is not liable for any material penalties that could be imposed thereunder. (q) The Acquired Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the Acquired Fund’s Prospectus and Statement of Additional Information, except as previously disclosed in writing to the Acquired Fund. (r) The Acquiring Fund Shares to be issued to the Acquired Fund pursuant to paragraph 1 will not be acquired for the purpose of making any distribution thereof other than to the Acquired Fund’s shareholders as provided in paragraph 1.4. (s) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Delaware law for the execution of this Agreement by The Xxxxxxx Funds, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement and such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Trust for Professional Managers)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the Federated Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated,~~ separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the State of Delaware. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Trust’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November~~ September 30, ~~2005~~2008, and for the fiscal year then ~~ended~~ ended, have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of March 31, 2009, and for the six months then ended, have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) As of the date hereof, except as previously disclosed to the Acquiring Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share of any class or series of shares during the twelve-month period preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 0000 Xxx. k) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund and of the Acquired Fund, the Acquired Fund’s Board of Trustees and committees of the Acquired Fund’s Board of Trustees. The stock transfer ledgers and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. l) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and rules thereunder. m) All federal and material other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jn) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund Shares, and has no outstanding securities convertible into any of the Acquired Fund Shares. o) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances to which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the State of Delaware, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. p) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. q) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. r) From the effective date of the Registration Statement (as defined in paragraph 5.7) through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Trust with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. s) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation as contemplated herein in paragraph 1.4. .. t) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Delaware law for the execution of this Agreement by the Trust, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Delaware law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Equity Funds)

Appears in 1 contract

Samples: Reorganization Agreement (Federated Municipal Securities Fund Inc)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate investment series of the Elite Trust, a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Massachusetts. (b) The ~~Corporation~~ Acquired Fund is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the ~~Securities and Exchange~~ Commission ~~(the "Commission")~~ as an investment company under the 1940 Act is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will not ~~result~~ result, in ~~a violation,~~ violation of any material provision of the ~~Corporation's Articles~~ Elite Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments ~~(other than this Agreement)~~ that will be terminated with liability to it ~~before~~ prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions ~~contemplated herein~~herein contemplated. (g) The audited financial statements of the Acquired Fund ~~as of November~~ at September 30, ~~2005, and for the fiscal year then ended have been prepared~~ 2011 are in accordance with generally accepted accounting ~~principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date ~~that are~~ not disclosed ~~in such statements~~therein. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~September 30, 2011, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed in writing to and accepted in writing by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. (i) ~~All federal and other tax returns and reports of~~ At the ~~Acquired Fund required by law to be filed prior to the date hereof have been filed (and~~ Closing Date, all federal and other tax returns and reports of the Acquired Fund required by law to be have been filed ~~from and after the~~ by such date ~~hereof to the Closing Date will be~~ shall have been filed), and all federal and other taxes shown due on ~~such~~ said returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) For each fiscal year of its operation, the Acquired Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains. (k) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the ~~Acquired Fund's~~ transfer agent as provided in paragraph 33.4. The Acquired Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, nor is there outstanding any security convertible into any of the Acquired Fund shares. (l) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed in writing to the Acquiring Fund and accepted in writing by the Acquiring Fund. (m) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund and, subject to approval by the Acquired Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (n) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated hereby is accurate and complete in all material respects and complies in all material respects with federal securities and other laws and regulations thereunder applicable thereto, to the best of the Acquired Fund’s knowledge. (o) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Prospectus/Proxy Statement, in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act. The Prospectus/Proxy Statement (other than information therein that relates to the Acquiring Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Reorganization Agreement (Cutler Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The Minnesota Corporation, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the Acquiring Fund,~~ Maryland Corporation as follows: a) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~Minnesota. b) The Minnesota Corporation is registered as an open-end management investment company under the 1940 Act, and the Minnesota Corporation's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act") ), and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the Minnesota Corporation's Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of ~~November~~ September 30, 2005, and for the fiscal year then ~~ended~~ ended, have been prepared in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly and accurately reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of March 31, 2006, and for the six months then ended, have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly and accurately reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in ~~paragraph~~ subparagraph (gh) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as ~~otherwise~~ identified and disclosed ~~to and accepted~~ by the ~~Acquiring Fund~~Acquired Fund on SCHEDULE 4.1 to this Agreement. For the purposes of this ~~paragraph~~ subparagraph (hi), a decline in the net asset value of the Acquired Fund in and of itself shall not constitute a material adverse change. ij) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (~~timely and ~~all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ accurately filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jk) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (American Century Quantitative Equity Funds, Inc.)

REPRESENTATIONS OF THE ACQUIRED FUND. The Minnesota Corporation, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the Acquiring Fund,~~ Maryland Corporation as follows: a) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~Minnesota. b) The Minnesota Corporation is registered as an open-end management investment company under the 1940 Act, and the Minnesota Corporation's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act") ), and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the Minnesota Corporation's Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of ~~November~~ September 30, 2005, and for the fiscal year then ~~ended~~ ended, have been prepared in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly and accurately reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of March 31, 2006, and for the six months then ended, have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly and accurately reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in ~~paragraph~~ subparagraph (gh) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as ~~otherwise~~ identified and disclosed ~~to and accepted~~ by ~~the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of~~ the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.SCHEDULE

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (American Century Mutual Funds, Inc.)

REPRESENTATIONS OF THE ACQUIRED FUND. ~~The Corporation, on behalf~~ Except as has been disclosed to IMST in a written instrument executed by an officer of the Acquired Fund, the Acquired Fund represents and warrants to ~~the Federated Trust, on behalf of~~ IMST and the Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated, separate series of a~~ corporation duly organized, validly ~~existing,~~ existing and in good standing under the laws of the State of Maryland, with power under its Articles of Incorporation (the “Articles”) to own all of its properties and assets and to carry on its business as it is now being conducted. (b) The ~~Corporation~~ Acquired Fund is a registered ~~as an~~ open-end management investment company, and its registration with the Commission as an investment company under the 1940 Act, and the ~~Corporation's~~ registration ~~with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement~~ of ~~additional information~~ shares of the Acquired Fund ~~conform~~ for offer and sale under the Securities Act of 1933, as amended (the “1933 Act”), is effective. (c) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquired Fund of the transactions contemplated herein (other than the dissolution of the Acquired Fund), except such as may be required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), or the 1940 Act and such as may be required by state securities laws. (d) The current Prospectus and Statement of Additional Information of the Acquired Fund and each Prospectus and Statement of Additional Information of the Acquired Fund used during the two years prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the ~~Securities~~ 1933 Act ~~of 1933 (the "1933 Act")~~ and the 1940 ~~Act,~~ Act and the rules and regulations thereunder, and do not, or did not at the time of their use, include any untrue statement of a material fact or omit ~~to state~~ any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d(e) At the Effective Time, the Acquired Fund will have good and valid title to the Assets and full right, power, and authority to sell, assign, transfer and deliver the Assets hereunder free of any liens or other encumbrances, except those liens and encumbrances arising in the ordinary course of business or as to which the Acquiring Fund has received notice, and upon delivery and payment for the Assets, the Acquiring Fund will acquire good and valid title thereto, subject to no restrictions on the full transfer thereof, excluding such restrictions as might arise under the 1933 Act or other applicable law. (f) The Acquired Fund is not ~~in violation~~engaged currently, and the execution, delivery, and performance of this Agreement (subject to ~~shareholder~~ stockholder approval) will not ~~result~~ result, in a ~~violation, of any provision~~ violation (i) of the ~~Corporation's~~ Articles ~~of Incorporation~~ or X.X. Xxxxxxx & Co.’s By-Laws or (ii) of any ~~material~~ agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound, other than such violations that would not a cause a Material Adverse Change with respect to the Acquired Fund. e(g) The execution, delivery and performance of this Agreement will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquired Fund is a party or by which it is bound that would materially and adversely affect its ability to consummate the transactions contemplated by this Agreement or that would cause a Material Adverse Change with respect to the Acquired Fund. (h) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that if terminated will result in material liability to the Acquired Fund or under which (whether or not terminated) any material payments for periods subsequent to the Closing Date will be ~~terminated with liability to it before~~ due from the ~~Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof~~Acquired Fund. f(i) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or or, to its ~~knowledge~~ knowledge, threatened against the Acquired Fund or any of its properties or ~~assets, which~~assets that, if adversely determined, would materially and adversely affect ~~its financial condition, the conduct of its business, or the ability of~~ the Acquired ~~Fund~~ Fund’s ability to ~~carry out~~ consummate the transactions contemplated by this ~~Agreement~~Agreement or would cause a Material Adverse Change with respect to the Acquired Fund. The Acquired Fund ~~knows of no facts that might form the basis for the institution of such proceedings and~~ is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects ~~its~~ the Acquired Fund’s business or its ability to consummate the transactions contemplated herein. g(j) The ~~financial statements~~ Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquired Fund ~~as of November 30~~at December 31, ~~2005, and for the fiscal year then ended~~ 2008 have been ~~prepared in accordance with generally accepted accounting principles, and~~ audited by ~~PricewaterhouseCoopers~~ Anchin, Block & Anchin LLP, an independent registered public ~~accountants~~accounting firm, and such statements (copies of which have been furnished to ~~the Acquiring Fund~~IMST) ~~fairly reflect~~ present fairly, in all material respects, the financial condition of the Acquired Fund as of such ~~date~~date in accordance with U.S. GAAP (except as may be indicated in the notes thereto), and there are no known contingent liabilities of the Acquired Fund of a material amount required to be reflected on a balance sheet (including the notes thereto) in accordance with U.S. GAAP as of such date ~~that are~~ not disclosed ~~in such statements~~therein. h(k) On the closing date, IMST shall have been furnished with an unaudited statement of assets, liabilities and capital and a schedule of investments of the Acquired Fund, each as of the closing date. (l) Since ~~the date of the financial statements referred to in paragraph (g) above~~December 31, 2008, there have been no ~~material adverse changes~~ Material Adverse Changes in the Acquired Fund or any incurrence by the Acquired Fund of material indebtedness (except for indebtedness incurred in the ordinary course of business). For purposes of this Agreement, “Material Adverse Change”, with respect to a Fund or an Investment Company, means a material adverse change in such Fund's ’s or Investment Company’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business); provided that, ~~or any incurrence by the Acquired Fund~~ (i) a distribution of ~~indebtedness maturing more than one year from the date such indebtedness was incurred~~net investment income and/or net realized capital gains, ~~except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes~~ (ii) a change in portfolio securities, (iii) a change in market value of ~~this paragraph~~ portfolio securities, (~~h),~~ iv) a decline in the net asset value per share, (v) the discharge of liabilities, (vi) the net redemption of shares, (vii) changes or conditions affecting the asset management industry, stock markets or the financial markets generally, (viii) changes in economic, regulatory or political conditions generally, (ix) changes in the business of the Acquired Fund after the date hereof that are attributable directly or indirectly to IMST or its affiliates, and/or (x) changes resulting from this Agreement or the transactions contemplated hereby, shall not constitute a ~~material adverse change~~Material Adverse Change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Investment Managers Series Trust)

Appears in 1 contract

Samples: Merger Agreement (Banknorth Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust~~Corporation, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the State of Delaware. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~Trust's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation~~Trust's ~~Articles~~ Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of ~~November 30~~August 31, ~~2005~~2003, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of February 29, 2004, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jk) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Merger Agreement (Banknorth Funds)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Municipal Securities Fund Inc)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Money Market Obligations Trust /New/)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~EquiTrust Variable Fund, on behalf of the Acquired Fund, represents and warrants to the Federated Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated,~~ separate series of a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland. b)~~ the Commonwealth of Massachusetts. The ~~Corporation~~ EquiTrust Variable Fund is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Fund?s registration with the Securities and Exchange Commission (the "?Commission"?) as an investment company under the 1940 Act is in full force and effect. cb) The current prospectus and statement of additional information of the ~~Acquired~~ EquiTrust Variable Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "?1933 Act"?) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. dc) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation's Articles~~ EquiTrust Variable Fund?s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound~~. e~~. d) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof~~. f~~. e) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of November 30, 2005, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Insurance Series)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund hereby represents and warrants to ~~the Federated Trust, on behalf of~~ the Acquiring Fund, as follows, which representations and warranties shall be true and correct on the date hereof and agrees to confirm the continuing accuracy and completeness of the following at the Closing Date: (a) The Acquired Fund is a ~~legally designated,~~ separate series of the Trust, a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the State of Delaware. (b) The ~~Corporation~~ Trust is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation's Articles~~ Trust’s Amended and Restated Agreement and Declaration of ~~Incorporation~~ Trust of the Trust dated September 7, 1998, as amended through November 20, 2006 (“Declaration of Trust”), or By-~~Laws~~ Laws, as amended and restated November 18, 2004 (“By-laws”) or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. (f) Except as otherwise disclosed in writing to ~~and accepted by~~ the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. (g) The Acquired Fund’s audited statement of assets and liabilities as of September 30, 2011, and unaudited statement of assets and liabilities as of March 31, 2012, were prepared in accordance with U.S. generally accepted accounting principles (except as set forth in the notes thereto), consistently applied throughout the periods then ended, and fairly present the financial ~~statements~~ condition and results of operations of the Acquired Fund as of ~~November 30, 2005,~~ the respective dates thereof and for the ~~fiscal year then ended have been prepared~~ respective periods covered thereby subject, in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the ~~Acquiring Fund) fairly reflect the financial condition~~ case of the ~~Acquired Fund as of such date~~unaudited financial statements, ~~and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements~~to normal year-end audit adjustments. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~March 31, 2012, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to ~~and accepted by~~ the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. (i) All federal and other tax returns and reports of the Acquired Fund required by law to ~~be filed prior to the date hereof~~ have been filed (giving effect to any extensions) have been timely filed and are or were true, correct and complete in all material respects as of the time of their filing, and all ~~federal and other tax returns and reports~~ taxes of the Acquired Fund ~~required by law to be filed from~~ which are due and ~~after the date hereof to the Closing Date will be filed), and all federal and other taxes~~ payable (whether or not shown ~~due~~ on ~~such returns and reports have been (or will be~~any tax records) ~~paid, or provision~~ shall have been timely paid in full or provision has been made for ~~the~~ payment thereof. ~~To the best~~ The Acquired Fund is not liable for taxes of any person other than itself and is not a party to or otherwise bound by any tax sharing, allocation, assumption or indemnification agreement or arrangement. All of the Acquired Fund's ’s tax liabilities have been adequately provided for on its books and records in respect of all periods ending on or before the date of such books and records. The Acquired Fund has not had any tax deficiency or liability asserted against it that has not been previously disclosed in writing to the Acquiring Fund or question with respect thereto raised, and no dispute, audit, investigation, proceeding or claim concerning any tax liabilities of the Acquired Fund has been raised by the Internal Revenue Service or by any other governmental authority in writing, and to the Acquired Fund’s knowledge, no such ~~return is currently under~~ dispute, audit, investigation, proceeding or claim is pending, being conducted or claimed. (j) The Acquired Fund has elected to be, and has met the requirements of Subchapter M of the Code for qualification and treatment as, a “regulated investment company” within the meaning of Sections 851 et seq. of the Code in respect of each taxable year since the commencement of operations, and shall continue to meet such requirements at all times through the Closing Date, treating the Closing Date as the close of its tax year if the year does not otherwise close on such date. The Acquired Fund has not at any time since its inception been liable for and is not now liable for any material income or excise tax pursuant to Section 852 or 4982 of the Code. The Acquired Fund has no ~~assessment~~ other material tax liability (foreign, state, or local), except as accrued on the Acquired Fund’s books and records. The Acquired Fund has ~~been asserted~~ no earnings and profits accumulated with respect to ~~such returns~~any taxable year in which the provisions of Subchapter M of the Code did not apply. j(k) ~~All issued~~ The Acquired Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the Code). (l) Except as otherwise disclosed in writing to the Acquiring Fund, the Acquired Fund is in compliance in all material respects with the Code and ~~outstanding~~ applicable regulations promulgated under the Code pertaining to the reporting of dividends and other distributions on and redemptions of its shares and has withheld in respect of dividends and other distributions and redemption proceeds and paid to the proper taxing authority all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder. (m) The Acquired Fund has not granted any waiver, extension or comparable consent regarding the application of the statute of limitations with respect to any taxes or tax return that is outstanding, nor has any request for such waiver or consent been made. (n) The Acquired Fund does not own any “converted property” (as that term is defined in Treasury Regulation Section 1.337(d)-7(a)(1)) that is subject to the rules of Section 1374 of the Code as a consequence of the application of Section 337(d)(1) of the Code and Treasury Regulations thereunder. (o) The Acquired Fund has not previously been a party to a reorganization under Section 368(a) of the Code. (p) The Acquired Fund has not received written notification from any tax authority that asserts a position contrary to any of the above representations in (i) through (o). (q) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (r) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund ~~are duly~~ and ~~validly issued~~ this Agreement constitutes a valid and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records binding obligation of the Acquired Fund~~'s transfer agent~~ , enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (s) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements and other documents that may be necessary in connection with the transactions contemplated hereby is accurate and complete in all material respects and complies in all material respects with federal securities and other laws and regulations thereunder applicable thereto. (t) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Registration Statement on Form N-14 of the Acquiring Fund (the “Registration Statement”), in ~~paragraph 3~~compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act. The Prospectus/Information Statement included in the Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Funds Group Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate investment series of the Trust, a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Massachusetts. (b) The ~~Corporation~~ Acquired Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions ~~contemplated herein~~herein contemplated. (g) The audited financial statements of the Acquired Fund as dated December 31, 2012 and audited financial statements of ~~November~~ Acquired Fund dated June 30, ~~2005, and for the fiscal year then ended have been prepared~~ 2013 are in accordance with generally accepted accounting ~~principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date ~~that are~~ not disclosed ~~in such statements~~therein. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~December 31, 2012, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. (i) ~~All federal and other tax returns and reports of~~ At the ~~Acquired Fund required by law to be filed prior to the date hereof have been filed (and~~ Closing Date, all federal and other tax returns and reports of the Acquired Fund required by law to be have been filed ~~from and after the~~ by such date ~~hereof to the Closing Date will be~~ shall have been filed), and all federal and other taxes shown due on ~~such~~ said returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) For each fiscal year of its operation, the Acquired Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains. (k) The Acquired Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the Code); (l) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the ~~Acquired Fund's~~ transfer agent as provided in paragraph 33.3. The Acquired Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, nor is there outstanding any security convertible into any of the Acquired Fund shares. (m) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (n) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund and, subject to approval by the Acquired Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (o) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated hereby is accurate and complete in all material respects and complies in all material respects with federal securities and other laws and regulations thereunder applicable thereto. (p) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a prospectus, which included the proxy statement of the Acquired Fund (the “Prospectus/Proxy Statement”), all of which was included in a Registration Statement on Form N-14 of the Acquiring Fund (the “Registration Statement”), in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act in connection with the meeting of the shareholders of the Acquired Fund to approve this Agreement and the transactions contemplated hereby. The Prospectus/Proxy Statement included in the Registration Statement (other than information therein that relates to the Acquiring Fund and any other fund described therein other than the Acquired Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated~~ Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated, separate series of a~~ corporation duly organized, validly existing, and in good standing under the laws of the State of Maryland. b) The ~~Corporation~~ Acquired Fund is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Acquired Fund’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's~~ Acquired Fund’s Articles of ~~Incorporation~~ Incorportion or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~March 31, ~~2005,~~ 2008 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) As of the date hereof, except as previously disclosed to the Acquired Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share during the twelve-month preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 1940 Act. j) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund, the Acquired Fund’s Board of Directors and committees of the Acquired Fund’s Board of Directors. The stock transfer ledger and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. k) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and xxxxx thereunder. l) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jm) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, and has no outstanding securities convertible into any of the Acquired Fund shares. n) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances of which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the State of Maryland, the Acquiring Fund will acquire good and marketable title to such assets, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. o) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. p) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. q) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. r) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. s) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Maryland law for the execution of this Agreement by the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Maryland law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Equity Funds)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. ~~The Corporation~~Except as has been disclosed to IMST in a written instrument executed by an officer of Forum, ~~on behalf of~~ Forum and the Acquired ~~Fund, represents~~ Fund represent and ~~warrants~~ warrant to ~~the Federated Trust, on behalf of~~ IMST and the Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is duly organized as a ~~legally designated, separate~~ series of Forum, which is a ~~corporation~~ statutory trust duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~the State of Delaware, with power under Forum’s Trust Instrument (the “Trust Instrument”) to own all of its properties and assets and to carry on its business as it is now being conducted. (b) ~~The Corporation~~ Forum is a registered ~~as an~~ open-end management investment company, and its registration with the Commission as an investment company under the 1940 Act, and the ~~Corporation's~~ registration ~~with~~ of shares of the Acquired Fund under the Securities ~~and Exchange Commission~~ Act of 1933, as amended (the ~~"Commission") as an investment company under the 1940 Act~~ “1933 Act”), is in full force and effect. (c) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquired Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act and such as may be required by state securities laws. (d) The current ~~prospectus~~ Prospectus and ~~statement~~ Statement of ~~additional information~~ Additional Information of the Acquired Fund ~~conform~~ and each Prospectus and Statement of Additional Information of the Acquired Fund used during the three years prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the ~~Securities~~ 1933 Act ~~of 1933 (the "1933 Act")~~ and the 1940 ~~Act,~~ Act and the rules and regulations thereunder, and do not, or did not at the time of their use, include any untrue statement of a material fact or omit ~~to state~~ any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d(e) At the Effective Time, the Acquired Fund will have good and valid title to the Assets and full right, power, and authority to sell, assign, transfer and deliver the Assets hereunder free of any liens or other encumbrances, except those liens and encumbrances as to which the Acquiring Fund has received notice, and upon delivery and payment for the Assets, the Acquiring Fund will acquire good and valid title thereto, subject to no restrictions on the full transfer thereof, excluding such restrictions as might arise under the 1933 Act, other than as disclosed to and accepted by IMST. (f) The Acquired Fund is not ~~in violation~~engaged currently, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not ~~result~~ result, in a ~~violation, of any provision~~ material violation of the ~~Corporation's Articles of Incorporation~~ Trust Instrument or Forum’s By-Laws or of any ~~material~~ agreement, indenture, instrument, contract, lease, or other undertaking to which Forum on behalf of the Acquired Fund is a party or by which it is bound, other than as disclosed to IMST. e(g) The execution, delivery and performance of this Agreement will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which Forum, on behalf of the Acquired Fund, is a party or by which it is bound that would materially and adversely affect its business or its ability to consummate the transactions contemplated by this Agreement, other than as disclosed to IMST. (h) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that if terminated will result in material liability to the Acquired Fund or under which (whether or not terminated) any material payments for periods subsequent to the Closing Date will be ~~terminated with liability~~ due from the Acquired Fund, other than as disclosed to ~~it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof~~IMST. f(i) Except as otherwise disclosed in writing to and accepted by ~~the Acquiring Fund~~IMST, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or or, to the best of its ~~knowledge~~ knowledge, threatened against Forum, the Acquired Fund or any of ~~its~~ Forum’s properties or ~~assets, which~~assets held for the benefit of the Acquired Fund that, if adversely determined, would materially and adversely affect ~~its~~ the Acquired Fund’s financial condition, the conduct of its business, or ~~the~~ its ability ~~of the Acquired Fund~~ to ~~carry out~~ consummate the transactions contemplated by this Agreement. ~~The~~ Forum, on behalf of the Acquired ~~Fund~~ Fund, knows of no facts that ~~might~~ are reasonably likely to form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects ~~its~~ the Acquired Fund’s business or its ability to consummate the transactions contemplated herein. g(j) The ~~financial statements~~ Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquired Fund ~~as of November 30~~at October 31, ~~2005~~2008 have been audited by ___________________, an independent registered public accounting firm, and ~~for the fiscal year then ended have been prepared~~ are in accordance with ~~generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~U.S. GAAP, and such statements (copies of which have been furnished to ~~the Acquiring Fund~~IMST) ~~fairly reflect~~ present fairly, in all material respects, the financial condition of the Acquired Fund as of such ~~date~~date in accordance with U.S. GAAP, and there are no known contingent liabilities of the Acquired Fund of a material amount required to be reflected on a balance sheet (including the notes thereto) in accordance with U.S. GAAP as of such date ~~that are~~ not disclosed ~~in such statements~~therein. h(k) IMST has been furnished with an unaudited statement of assets, liabilities and capital and a schedule of investments of the Acquired Fund, each as of April 30, 2009. These statements are in accordance with U.S. GAAP and present fairly, in all material respects, the financial position of the Acquired Fund as of such date in accordance with U.S. GAAP, and there are no known contingent liabilities of the Acquired Fund of a material amount required to be on a balance sheet in accordance with U.S. GAAP as of such date not disclosed therein. (l) Since ~~the date of the financial statements referred to in paragraph (g) above~~April 30, 2009, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of ~~indebtedness maturing more than one year from the date such indebtedness was incurred~~material indebtedness, except as otherwise disclosed to and accepted by ~~the Acquiring Fund. For~~ IMST (for the purposes of this ~~paragraph~~ subparagraph (hl), a distribution of net investment income and/or net realized capital gains, a change in portfolio securities, a change in market value of portfolio securities, a decline in the net asset value ~~of the~~ per Acquired Fund Shares, the discharge of Acquired Fund liabilities, or a net redemption of Acquired Fund Shares shall not constitute a material adverse change). i(m) ~~All~~ On the Closing Date, all federal and other tax ~~returns~~ returns, dividend reporting forms, and other tax-related reports of the Acquired Fund required by law to be filed ~~prior to the~~ by such date ~~hereof~~ (including any extensions), shall have been filed (and ~~all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date~~ are or will be ~~filed)~~correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on such returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof~~. To the best~~ ; all of the Acquired Fund's ’s tax liabilities, if any, will have been adequately provided for on its books; and to the best of Forum’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j(n) There are no material legal, administrative, or other proceedings or investigations pending or, to the knowledge of Forum, threatened against the Acquired Fund. (o) There are no material contracts outstanding to which the Acquired Fund is a party other than those entered into in the ordinary conduct of its business. (p) The Acquired Fund is a “fund” (as defined in Section 851(g)(2) of the Code); has elected to be, and has qualified for treatment under Subchapter M of the Code as, a “regulated investment company” under the Code (a “RIC”) as of and since its first taxable period; has been a RIC at all times since the end of its first taxable year when it so qualified; and qualifies and shall continue to qualify for treatment as a RIC for its taxable year ending upon the Closing Date. The Acquired Fund is an investment company within the meaning of Section 368(a)(2)(F)(i) and (iii) of the Code and satisfies the diversification requirements of Section 368(a)(2)(F)(ii). The Acquired Fund has not at any time since its inception been liable for, and is not now liable for, any material income or excise tax pursuant to Section 852 or 4982 of the Code. The Acquired Fund has duly filed all federal, state, local and foreign tax returns that are required to have been filed, and all taxes of the Acquired Fund that are due and payable have been paid except for amounts that alone or in the aggregate would not reasonably be expected to have a material adverse effect. The Acquired Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its shares of beneficial interest and to withholding in respect of dividends and other distributions to shareholders, and is not liable for any material penalties that could be imposed thereunder. (q) Forum will provide the Acquired Fund’s books and records to IMST for purposes of preparing any tax returns required by law to be filed after the Closing Date. (r) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-~~assessable by~~ assessable, have been offered and sold in compliance in all material respects with all applicable registration or qualification requirements of the ~~Acquired Fund~~1933 Act and state securities laws. All of the issued and outstanding shares of the Acquired Fund will, at the time of the ~~Closing Date~~Closing, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.2. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any Acquired Fund Shares, and has no outstanding securities convertible into Acquired Fund Shares. (s) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary action on the part of the Board of Forum, on behalf of the Acquired Fund, and subject to approval by the Acquired Fund’s shareholders and assuming the due authorization, execution and delivery of this Agreement by IMST, this Agreement constitutes a valid and binding obligation of Forum with respect to the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and to general equity principles. (t) The information to be furnished by Forum for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents filed or to be filed with any federal, state or local regulatory authority (including the Financial Industry Regulatory Authority (“FINRA”)) that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and other laws and regulations. (u) From the effective date of the Registration Statement (as defined in paragraph 5.6), through the time of the meeting of the Acquired Fund’s shareholders and on the Closing Date, any written information furnished by Forum with respect to the Acquired Fund for use in the Proxy Statement/Prospectus (as defined in paragraph 5.6), the Registration Statement or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not materially misleading. (v) The Acquired Fund will distribute the Acquiring Fund Shares it receives in the Reorganization in pursuance of this Agreement. (w) The Liabilities to be assumed by the Acquiring Fund (and the Liabilities, if any, that are secured by the Assets) were incurred in the ordinary course of its business and are associated with the Assets. (x) The fair market value of the Acquiring Fund Shares received by each Acquired Fund Shareholder will be approximately equal to the fair market value of the Acquired Fund Shares it actually or constructively surrenders in the Reorganization. No Acquired Fund Shareholder will receive consideration other than Acquiring Fund Shares. (y) The Acquired Fund is not under the jurisdiction of a court in a “title 11 or similar case” within the meaning of Section 368(a)(3)(A) of the Code. (z) As soon as practicable, but in no event later than 12 months following the date that all Assets are transferred to the Acquiring Fund, the Acquired Fund will be liquidated and terminated as a series of Forum under state law. (aa) The fair market value of the transferred assets will equal or exceed the sum of the Liabilities assumed by the Acquiring Fund plus the amount of Liabilities, if any, that are secured by the Assets. (bb) The Acquired Fund has no unamortized or unpaid organizational fees or expenses that have not previously been disclosed to IMST. (cc) The Acquired Fund has valued, and will continue to value, its portfolio securities and other assets in accordance with applicable legal requirements. (dd) The Acquired Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the Acquired Fund’s Prospectus, except as previously disclosed in writing to IMST. (ee) The Acquiring Fund Shares to be issued to the Acquired Fund pursuant to paragraph 1 will not be acquired for the purpose of making any distribution thereof other than to the Acquired Fund Shareholders as provided in paragraph 1.4. (ff) No expenses incurred by the Acquired Fund or on its behalf in connection with the Reorganization will be paid or assumed by the Manager, the Acquiring Fund, or any third party unless those expenses are solely and directly related to the Reorganization (determined in accordance with the guidelines set forth in Rev. Rul. 73-54, 1973-1 C.B. 187) (“Reorganization Expenses”), and no cash or property other than Acquiring Fund Shares will be transferred to the Acquired Fund or any of its shareholders with the intention that it be used to pay any expenses (even Reorganization Expenses) thereof. (gg) The Acquired Fund Shareholders will pay their own expenses (such as fees of personal investment or tax advisers for advice regarding the Reorganization), if any, incurred in connection with the Reorganization.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Investment Managers Series Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate investment series of the Trust, a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Massachusetts. (b) The ~~Corporation~~ Acquired Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the ~~statements therein~~statements, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ on or prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph ~~1.3 hereof~~1.3. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the ~~transactions contemplated by this Agreement~~Reorganization. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the Reorganization or the transactions contemplated herein. (g) The audited financial statements of the Acquired Fund ~~as of November~~ dated June 30, ~~2005, and for the fiscal year then ended have been prepared~~ 2014 are in accordance with generally accepted accounting ~~principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date ~~that are~~ not disclosed ~~in such statements~~therein. (h) The financial statements of the Acquired Fund as of December 31, 2014 and for the period then ended are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date not disclosed therein. (i) Since the date of the financial statements referred to in ~~paragraph~~ subsection (gh) above, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i(j) All ~~federal~~ federal, state, local and other tax returns and reports of the Acquired Fund required by law to be filed ~~prior to the date hereof~~ by it (taking into account permitted extensions for filing) have been timely filed (and are complete and correct in all ~~federal~~ material respects. All federal, state, local and other ~~tax returns and reports~~ taxes of the Acquired Fund required ~~by law~~ to be ~~filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes~~ paid (whether or not shown as due on any such ~~returns and reports~~ return or report) have been ~~(or will be)~~ paid, or provision shall have been made for the payment ~~thereof~~thereof and any such unpaid taxes as of the date of the financial statements referred to in subsections (g) and (h) above are properly reflected on such financial statements. To the ~~best of~~ Acquired Fund’s knowledge, no tax authority is currently auditing or preparing to audit the Acquired Fund~~'s knowledge, no such return is currently under audit~~, and no assessment or deficiency for taxes, interest, additions to tax or penalties has been asserted ~~with respect to such returns~~against the Acquired Fund. j(k) For each taxable year of its operations (including the taxable year ending on the Closing Date), the Acquired Fund has been or will be treated as a separate corporation for federal income tax purposes pursuant to Section 851(g) of the Code, has met or will meet the requirements of Subchapter M of the Code for qualification as a regulated investment company and has elected to be treated as such, has been and will be eligible to compute and has computed and will compute its federal income tax under Section 852 of the Code, and will have distributed on or prior to the Closing Date all its investment company taxable income (determined without regard to the deduction for dividends paid), the excess of its interest income excludable from gross income under Section 103(a) of the Code over its deductions disallowed under Sections 265 and 171(a)(2) of the Code, and its net capital gain (as such terms are defined in the Code) after reduction for any available capital loss carryover as of the Closing Date, in each case that has accrued or will accrue on or prior to the Closing Date. (l) The Acquired Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the Code). (m) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the ~~Closing Date~~Closing, be held by the persons and in the amounts set forth in the records of the ~~Acquired Fund's~~ transfer agent as provided in paragraph 33.3. The Acquired Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquired Fund shares, nor is there outstanding any security convertible into any Acquired Fund shares. (n) At the Closing, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (o) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Trust’s Board of Trustees and, subject to the approval of the Acquired Fund shareholders, this Agreement constitutes a valid and legally binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (p) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the Reorganization is accurate and complete in all material respects and complies in all material respects with applicable federal securities and other laws and regulations. (q) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of the Proxy Statement/Prospectus, all of which was included in a Registration Statement on Form N-14 of the Acquiring Fund (the “Registration Statement”), in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act in connection with the Reorganization. The Proxy Statement/Prospectus included in the Registration Statement (other than information that relates to the Acquiring Fund and any other fund described other than the Acquired Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated~~ Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the Commonwealth of Massachusetts. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~Trust's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation~~Trust's ~~Articles~~ Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. . e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. . f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of November 30, 2005, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Income Securities Trust)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Funds Group Trust)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Money Market Obligations Trust /New/)

REPRESENTATIONS OF THE ACQUIRED FUND. The Corporation, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: a) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly existing, and in good standing under the laws of Maryland. b) The Corporation is registered as an open-end management investment company under the 1940 Act, and the Corporation's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is not in violation, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result in a the violation, of any provision of the Corporation's Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of November 30, 2005, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and audited by ~~PricewaterhouseCoopers~~ Ernst & Young LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of May 31, 2006, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jk) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Short Term Municipal Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate investment series of TST, a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Massachusetts. (b) The ~~Corporation~~ Acquired Fund is a separate investment series of TST, which is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act~~") and~~ ”), the 1940 Act, and the rules and regulations ~~thereunder,~~ of the Commission and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the ~~statements therein~~statements, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will not ~~result~~ result, in ~~a violation,~~ violation of any provision of ~~the Corporation's Articles~~ TST’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph ~~1.3 hereof~~1.3. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the ~~transactions contemplated by this Agreement~~Reorganization. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the ~~transactions contemplated herein~~Reorganization. (g) The audited financial statements of the Acquired Fund as dated March 31, 2013 and the unaudited financial statements of ~~November~~ the Acquired Fund dated September 30, ~~2005, and for the fiscal year then ended have been prepared~~ 2013 are in accordance with generally accepted accounting ~~principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date ~~that are~~ not disclosed ~~in such statements~~therein. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~September 30, 2013, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. (i) ~~All federal and other tax returns and reports of~~ At the ~~Acquired Fund required by law to be filed prior to the date hereof have been filed (and~~ Closing Date, all federal and other tax returns and reports of the Acquired Fund required by law to be have been filed ~~from~~ by such date shall have been filed and ~~after the date hereof to the Closing Date will be filed)~~are complete and correct in all material respects, and all federal and other taxes required to be shown ~~due~~ on ~~such~~ said returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for ~~the payment thereof~~their payment. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) For each fiscal year of its operation, including, without limitation the year ending on the Closing Date, the Acquired Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains. (k) The Acquired Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the IRS Code). (l) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the ~~Closing Date~~Closing, be held by the persons and in the amounts set forth in the records of the ~~Acquired Fund's~~ transfer agent as provided in paragraph 33.3. The Acquired Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, nor is there outstanding any security convertible into any of the Acquired Fund shares. (m) At the Closing, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (n) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund, and this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (o) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the Reorganization is accurate and complete in all material respects and complies in all material respects with applicable federal securities and other laws and regulations. (p) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of the Prospectus/Information Statement, all of which was included in a Registration Statement on Form N-14 of the Acquiring Fund (the “Registration Statement”), in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act in connection with the Reorganization. The Prospectus/Information Statement included in the Registration Statement (other than information that relates to the Acquiring Fund and any other fund described other than the Acquired Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Funds Group Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The Corporation, on behalf of the Acquired Fund, represents and warrants to the Federated Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated,~~ separate series of ~~a corporation~~ the Corporation duly organized, validly existing, and in good standing under the laws of the State of Maryland. b) The Corporation is registered as an open-end management investment company under the 1940 Act, and the Corporation's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not ~~result~~ result, in ~~a violation,~~ the violation of any provision of the Corporation's Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to ~~and accepted by~~ the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~March 31, 2005, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of September 30, 2005, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquired Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown to be due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the ~~Acquired Fund~~Corporation's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jk) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Index Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated~~ Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated, separate series of a~~ corporation duly organized, validly existing, and in good standing under the laws of the State of Maryland. b) The ~~Corporation~~ Acquired Fund is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Acquired Fund’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's~~ Acquired Fund’s Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~March 31, ~~2005,~~ 2008 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) As of the date hereof, except as previously disclosed to the Acquired Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share during the twelve-month preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 1940 Act. j) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund, the Acquired Fund’s Board of Directors and committees of the Acquired Fund’s Board of Directors. The stock transfer ledger and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. k) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and xxxxx thereunder. l) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jm) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, and has no outstanding securities convertible into any of the Acquired Fund shares. n) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances of which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the State of Maryland, the Acquiring Fund will acquire good and marketable title to such assets, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. o) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. p) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. q) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. r) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. s) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Maryland law for the execution of this Agreement by the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Maryland law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Equity Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. The Corporation, on behalf of the Acquired Fund, represents and warrants to the ~~Federated~~ Trust~~, on behalf of the Acquiring Fund~~, as follows: a~~) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly existing, and in good standing under the laws of Maryland. b~~) The Corporation is registered as an open-end management investment company under the 1940 Act, and the Corporation's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect, and the Corporation is duly incorporated validly existing in good standing under the laws of the State of Maryland. The Fund is a portfolio of the Corporation. cb) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. dc) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the Corporation's Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. ed) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. fe) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, or as otherwise disclosed in the Acquired Funds current registration statement, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. gf) The audited financial statements of the Acquired Fund as of November 30, ~~2005~~2006, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and ~~audited by PricewaterhouseCoopers LLP~~such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, ~~independent registered public accountants~~and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. g) The unaudited financial statements of the Acquired Fund as of May 31, 2007, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, (subject to absence of footnotes and year-end adjustments) and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Equity Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Acquiree, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the Acquiring Fund,~~ Acquirer as follows: a) The Acquired Fund is a legally designated, separate series of a corporation duly organized, validly ~~existing,~~ existing and in good standing under the laws of Maryland. b) The ~~Corporation~~ Acquiree is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Acquiree’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's~~ Acquiree’s Articles of Incorporation or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. . e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. . f) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of November 30, 2005, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be filed prior to the date hereof have been filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be filed), and all federal and other taxes shown due on such returns and reports have been (or will be) paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Reorganization Agreement (American Century World Mutual Funds Inc)

REPRESENTATIONS OF THE ACQUIRED FUND. ~~The Corporation~~Except as has been disclosed to IMST in a written instrument executed by an officer of Forum, ~~on behalf of~~ Forum and the Acquired ~~Fund, represents~~ Fund represent and ~~warrants~~ warrant to ~~the Federated Trust, on behalf of~~ IMST and the Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is duly organized as a ~~legally designated, separate~~ series of Forum, which is a ~~corporation~~ statutory trust duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~the State of Delaware, with power under Forum’s Trust Instrument (the “Trust Instrument”) to own all of its properties and assets and to carry on its business as it is now being conducted. (b) ~~The Corporation~~ Forum is a registered ~~as an~~ open-end management investment company, and its registration with the Commission as an investment company under the 1940 Act, and the ~~Corporation's~~ registration ~~with~~ of shares of the Acquired Fund under the Securities ~~and Exchange Commission~~ Act of 1933, as amended (the ~~"Commission") as an investment company under the 1940 Act~~ “1933 Act”), is in full force and effect. (c) No consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquired Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the 1940 Act and such as may be required by state securities laws. (d) The current ~~prospectus~~ Prospectus and ~~statement~~ Statement of ~~additional information~~ Additional Information of the Acquired Fund ~~conform~~ and each Prospectus and Statement of Additional Information of the Acquired Fund used during the three years prior to the date of this Agreement conforms or conformed at the time of its use in all material respects to the applicable requirements of the ~~Securities~~ 1933 Act ~~of 1933 (the "1933 Act")~~ and the 1940 ~~Act,~~ Act and the rules and regulations thereunder, and do not, or did not at the time of their use, include any untrue statement of a material fact or omit ~~to state~~ any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d(e) At the Effective Time, the Acquired Fund will have good and valid title to the Assets and full right, power, and authority to sell, assign, transfer and deliver the Assets hereunder free of any liens or other encumbrances, except those liens and encumbrances as to which the Acquiring Fund has received notice, and upon delivery and payment for the Assets, the Acquiring Fund will acquire good and valid title thereto, subject to no restrictions on the full transfer thereof, excluding such restrictions as might arise under the 1933 Act, other than as disclosed to and accepted by IMST. (f) The Acquired Fund is not ~~in violation~~engaged currently, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not ~~result~~ result, in a ~~violation, of any provision~~ material violation of the ~~Corporation's Articles of Incorporation~~ Trust Instrument or Forum’s By-Laws or of any ~~material~~ agreement, indenture, instrument, contract, lease, or other undertaking to which Forum on behalf of the Acquired Fund is a party or by which it is bound, other than as disclosed to IMST. e(g) The execution, delivery and performance of this Agreement will not result in the acceleration of any obligation, or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which Forum, on behalf of the Acquired Fund, is a party or by which it is bound that would materially and adversely affect its business or its ability to consummate the transactions contemplated by this Agreement, other than as disclosed to IMST. (h) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that if terminated will result in material liability to the Acquired Fund or under which (whether or not terminated) any material payments for periods subsequent to the Closing Date will be ~~terminated with liability~~ due from the Acquired Fund, other than as disclosed to ~~it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof~~IMST. f(i) Except as otherwise disclosed in writing to and accepted by ~~the Acquiring Fund~~IMST, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or or, to the best of its ~~knowledge~~ knowledge, threatened against Forum, the Acquired Fund or any of ~~its~~ Forum’s properties or ~~assets, which~~assets held for the benefit of the Acquired Fund that, if adversely determined, would materially and adversely affect ~~its~~ the Acquired Fund’s financial condition, the conduct of its business, or ~~the~~ its ability ~~of the Acquired Fund~~ to ~~carry out~~ consummate the transactions contemplated by this Agreement. ~~The~~ Forum, on behalf of the Acquired ~~Fund~~ Fund, knows of no facts that ~~might~~ are reasonably likely to form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects ~~its~~ the Acquired Fund’s business or its ability to consummate the transactions contemplated herein. g(j) The ~~financial statements~~ Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquired Fund ~~as of November~~ at April 30, ~~2005~~2009 have been audited by Xxxxxx, Xxxxxxx & Xxxxxxxxx, LLP, an independent registered public accounting firm, and ~~for the fiscal year then ended have been prepared~~ are in accordance with ~~generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~U.S. GAAP, and such statements (copies of which have been furnished to ~~the Acquiring Fund~~IMST) ~~fairly reflect~~ present fairly, in all material respects, the financial condition of the Acquired Fund as of such ~~date~~date in accordance with U.S. GAAP, and there are no known contingent liabilities of the Acquired Fund of a material amount required to be reflected on a balance sheet (including the notes thereto) in accordance with U.S. GAAP as of such date ~~that are~~ not disclosed ~~in such statements~~therein. h(k) On the Closing Date, IMST shall have been furnished with an unaudited statement of assets, liabilities and capital and a schedule of investments of the Acquired Fund, each as of the Closing Date. These statements shall be in accordance with U.S. GAAP and present fairly, in all material respects, the financial position of the Acquired Fund as of such date in accordance with U.S. GAAP, and there are no known contingent liabilities of the Acquired Fund of a material amount required to be on a balance sheet in accordance with U.S. GAAP as of such date not disclosed therein. (l) Since ~~the date of the financial statements referred to in paragraph (g) above~~April 30, 2009, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of ~~indebtedness maturing more than one year from the date such indebtedness was incurred~~material indebtedness, except as otherwise disclosed to and accepted by ~~the Acquiring Fund. For~~ IMST (for the purposes of this ~~paragraph~~ subparagraph (hl), a distribution of net investment income and/or net realized capital gains, a change in portfolio securities, a change in market value of portfolio securities, a decline in the net asset value ~~of the~~ per Acquired Fund Shares, the discharge of Acquired Fund liabilities, or a net redemption of Acquired Fund Shares shall not constitute a material adverse change). i(m) ~~All~~ On the Closing Date, all federal and other tax ~~returns~~ returns, dividend reporting forms, and other tax-related reports of the Acquired Fund required by law to be filed ~~prior to the~~ by such date ~~hereof~~ (including any extensions), shall have been filed (and ~~all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date~~ are or will be ~~filed)~~correct in all material respects, and all federal and other taxes shown as due or required to be shown as due on such returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof~~. To the best~~ ; all of the Acquired Fund's ’s tax liabilities, if any, will have been adequately provided for on its books; and to the best of Forum’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j(n) There are no material legal, administrative, or other proceedings or investigations pending or, to the knowledge of Forum, threatened against the Acquired Fund. (o) There are no material contracts outstanding to which the Acquired Fund is a party other than those entered into in the ordinary conduct of its business. (p) The Acquired Fund is a “fund” (as defined in Section 851(g)(2) of the Code); has elected to be, and has qualified for treatment under Subchapter M of the Code as, a “regulated investment company” under the Code (a “RIC”) as of and since its first taxable period; has been a RIC at all times since the end of its first taxable year when it so qualified; and qualifies and shall continue to qualify for treatment as a RIC for its taxable year ending upon the Closing Date. The Acquired Fund is an investment company within the meaning of Section 368(a)(2)(F)(i) and (iii) of the Code and satisfies the diversification requirements of Section 368(a)(2)(F)(ii). The Acquired Fund has not at any time since its inception been liable for, and is not now liable for, any material income or excise tax pursuant to Section 852 or 4982 of the Code. The Acquired Fund has duly filed all federal, state, local and foreign tax returns that are required to have been filed, and all taxes of the Acquired Fund that are due and payable have been paid except for amounts that alone or in the aggregate would not reasonably be expected to have a material adverse effect. The Acquired Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the reporting of dividends and other distributions on and redemptions of its shares of beneficial interest and to withholding in respect of dividends and other distributions to shareholders, and is not liable for any material penalties that could be imposed thereunder. (q) Forum will provide the Acquired Fund’s books and records to IMST for purposes of preparing any tax returns required by law to be filed after the Closing Date. (r) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-~~assessable by~~ assessable, have been offered and sold in compliance in all material respects with all applicable registration or qualification requirements of the ~~Acquired Fund~~1933 Act and state securities laws. All of the issued and outstanding shares of the Acquired Fund will, at the time of the ~~Closing Date~~Closing, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.2. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any Acquired Fund Shares, and has no outstanding securities convertible into Acquired Fund Shares. (s) The execution, delivery, and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary action on the part of the Board of Forum, on behalf of the Acquired Fund, and subject to approval by the Acquired Fund’s shareholders and assuming the due authorization, execution and delivery of this Agreement by IMST, this Agreement constitutes a valid and binding obligation of Forum with respect to the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and to general equity principles. (t) The information to be furnished by Forum for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents filed or to be filed with any federal, state or local regulatory authority (including the Financial Industry Regulatory Authority (“FINRA”)) that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and other laws and regulations. (u) From the effective date of the Registration Statement (as defined in paragraph 5.6), through the time of the meeting of the Acquired Fund’s shareholders and on the Closing Date, any written information furnished by Forum with respect to the Acquired Fund for use in the Proxy Statement/Prospectus (as defined in paragraph 5.6), the Registration Statement or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not materially misleading. (v) The Acquired Fund will distribute the Acquiring Fund Shares it receives in the Reorganization in pursuance of this Agreement. (w) The Liabilities to be assumed by the Acquiring Fund (and the Liabilities, if any, that are secured by the Assets) were incurred in the ordinary course of its business and are associated with the Assets. (x) The fair market value of the Acquiring Fund Shares received by each Acquired Fund Shareholder will be approximately equal to the fair market value of the Acquired Fund Shares it actually or constructively surrenders in the Reorganization. No Acquired Fund Shareholder will receive consideration other than Acquiring Fund Shares. (y) The Acquired Fund is not under the jurisdiction of a court in a “title 11 or similar case” within the meaning of Section 368(a)(3)(A) of the Code. (z) As soon as practicable, but in no event later than 12 months following the date that all Assets are transferred to the Acquiring Fund, the Acquired Fund will be liquidated and terminated as a series of Forum under state law. (aa) The fair market value of the transferred assets will equal or exceed the sum of the Liabilities assumed by the Acquiring Fund plus the amount of Liabilities, if any, that are secured by the Assets. (bb) The Acquired Fund has no unamortized or unpaid organizational fees or expenses that have not previously been disclosed to IMST. (cc) The Acquired Fund has valued, and will continue to value, its portfolio securities and other assets in accordance with applicable legal requirements. (dd) The Acquired Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the Acquired Fund’s Prospectus, except as previously disclosed in writing to IMST. (ee) The Acquiring Fund Shares to be issued to the Acquired Fund pursuant to paragraph 1 will not be acquired for the purpose of making any distribution thereof other than to the Acquired Fund Shareholders as provided in paragraph 1.4. (ff) No expenses incurred by the Acquired Fund or on its behalf in connection with the Reorganization will be paid or assumed by the Manager, the Acquiring Fund, or any third party unless those expenses are solely and directly related to the Reorganization (determined in accordance with the guidelines set forth in Rev. Rul. 73-54, 1973-1 C.B. 187) (“Reorganization Expenses”), and no cash or property other than Acquiring Fund Shares will be transferred to the Acquired Fund or any of its shareholders with the intention that it be used to pay any expenses (even Reorganization Expenses) thereof. (gg) The Acquired Fund Shareholders will pay their own expenses (such as fees of personal investment or tax advisers for advice regarding the Reorganization), if any, incurred in connection with the Reorganization.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Investment Managers Series Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation, on behalf of the~~ Acquired ~~Fund,~~ Fund represents and warrants to the ~~Federated Trust, on behalf of the~~ Acquiring ~~Fund,~~ Fund as follows: (a) The Acquired Fund is a ~~legally designated,~~ separate investment series of the Trust, a ~~corporation~~ business trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Massachusetts. (b) The ~~Corporation~~ Acquired Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end ~~management investment company under the 1940 Act~~type, and ~~the Corporation's~~ its registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 ~~Act~~ Act, is in full force and effect. (c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act") ”), and the 1940 ~~Act,~~ Act and the rules and regulations ~~thereunder,~~ of the Commission and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the ~~statements therein~~statements, in light of the circumstances under which they were made, not misleading. (d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will not ~~result~~ result, in ~~a violation,~~ violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. (e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it ~~before~~ prior to the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph ~~1.3 hereof~~1.3. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the ~~transactions contemplated by this Agreement~~Reorganization. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the ~~transactions contemplated herein~~Reorganization. (g) The audited financial statements of the Acquired Fund ~~as of November 30~~dated March 31, ~~2005, and for the fiscal year then ended have been prepared~~ 2013 are in accordance with generally accepted accounting ~~principles, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date ~~that are~~ not disclosed ~~in such statements~~therein. (h) Since ~~the date of the financial statements referred to in paragraph (g) above~~March 31, 2013, there ~~have~~ has not been no any material adverse ~~changes~~ change in the Acquired Fund's ’s financial condition, assets, ~~liabilities~~ liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this ~~paragraph~~ subparagraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. (i) ~~All federal and other tax returns and reports of~~ At the ~~Acquired Fund required by law to be filed prior to the date hereof have been filed (and~~ Closing Date, all federal and other tax returns and reports of the Acquired Fund required by law to be have been filed ~~from and after the~~ by such date ~~hereof to the Closing Date will be~~ shall have been filed), and all federal and other taxes shown due on ~~such~~ said returns and reports shall have been ~~(or will be)~~ paid, or provision shall have been made for ~~the payment thereof~~their payment. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) For each fiscal year of its operation, the Acquired Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains. (k) The Acquired Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the Code); (l) All issued and outstanding shares of the Acquired Fund ~~are~~ are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the ~~Acquired Fund's~~ transfer agent as provided in paragraph 33.3. The Acquired Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, nor is there outstanding any security convertible into any of the Acquired Fund shares. (m) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund. (n) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund and, subject to approval by the Acquired Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. (o) The information furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the Reorganization is accurate and complete in all material respects and complies in all material respects with applicable federal securities and other laws and regulations. (p) The Acquired Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of the Prospectus/Information Statement, all of which was included in a Registration Statement on Form N-14 of the Acquiring Fund (the “Registration Statement”), in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act in connection the Reorganization. The Prospectus/Information Statement included in the Registration Statement (other than information that relates to the Acquiring Fund and any other fund described other than the Acquired Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)

Appears in 1 contract

Samples: Reorganization Agreement (Touchstone Strategic Trust)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to ~~the Federated Trust, on behalf of~~ the Acquiring Fund, as follows: a) The Acquired Fund is a ~~legally designated,~~ separate series of ~~a corporation~~ the Trust, duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~the Commonwealth of Massachusetts. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~Trust's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder ~~approval)~~ approval will ~~not~~ not, result in a ~~violation, of any provision~~ violation of the ~~Corporation~~Trust's ~~Articles~~ Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~July 31, ~~2005~~2009, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of January 31, 2009, and for the six months then ended, have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph ~~(g)~~ g above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) As of the date hereof, except as previously disclosed to the Acquiring Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund's knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share of any class or series of shares during the twelve-month period preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 1900 Xxx. k) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund and of the Acquired Fund, the Acquired Fund's Board of Trustees and committees of the Acquired Fund's Board of Trustees. The stock transfer ledgers and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. l) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and rules thereunder. m) All federal and other tax returns and reports of the Acquired Fund required by law to be filed ~~prior to the date hereof~~ have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jn) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 33.4 The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund Shares, and has no outstanding securities convertible into any of the Acquired Fund Shares. o) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund's assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances to which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the Commonwealth of Massachusetts, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. p) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles. q) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. r) From the effective date of the Registration Statement (as defined in paragraph 5.7) through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Trust with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. s) The Acquired Fund has qualified and elected to be treated as a "regulated investment company" under the Code (a "RIC"), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. t) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the "1934 Act"), the 1940 Act or Massachusetts law for the execution of this Agreement by the Trust, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Massachusetts law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated MDT Series)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~FBR Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated~~ MTB Trust, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the State of Delaware. b) The ~~Corporation~~ FBR Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~FBR Trust's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current ~~prospectus~~ Prospectus and ~~statement~~ Statement of ~~additional information~~ Additional Information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation~~FBR Trust's ~~Articles of Incorporation~~ Trust Instrument or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that could materially and adversely ~~affects~~ affect its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~October 31, 2005, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and ~~audited by PricewaterhouseCoopers LLP, independent registered public accountants, and~~ such statements (copies of which have been furnished to the MTB Trust on behalf of the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the MTB Trust on behalf of the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown to be due on such returns and reports have been ~~(or will be) paid,~~ paid or provision shall have been made for the payment thereof. To the best of the ~~Acquired Fund~~FBR Trust's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (MTB Group of Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust,~~ Trust on behalf of the Acquiring ~~Fund,~~ Fund as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ business trust duly organized, validly ~~existing,~~ existing and in good standing under the laws of ~~Maryland~~Massachusetts. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~Acquired Fund's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act") ), and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement ~~(subject to shareholder approval)~~ will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation~~Trust's ~~Articles~~ Amended and Restated Agreement and Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in ~~paragraph 1.3~~ paragraph-1.3 hereof. f) ~~Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no~~ No litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of ~~November 30~~August 31, ~~2005~~2006, and for the fiscal year then ~~ended~~ ended, have been prepared in accordance with generally accepted accounting principles, and audited by PricewaterhouseCoopers LLP, independent registered public ~~accountants~~accounting firm, and such statements (copies of which have been furnished to the Acquiring Fund) fairly and accurately reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of February 28, 2007, and for the six months then ended, have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly and accurately reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in ~~paragraph~~ subparagraph (gh) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as ~~otherwise~~ identified and disclosed ~~to and accepted~~ by the ~~Acquiring Fund~~Acquired Fund on Schedule 4.1 to this Agreement. For the purposes of this ~~paragraph~~ subparagraph (hi), a decline in the net asset value of the Acquired Fund in and of itself shall not constitute a material adverse change. ij) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (~~timely and ~~all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ accurately filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jk) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund Shares, and has no outstanding securities convertible into any of the Acquired Fund Shares. l) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund's assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances to which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of Massachusetts, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act or the 1940 Act, and other than as disclosed to and accepted by the Acquiring Fund. m) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund and its Board of Trustees. This Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles. n) The information to be furnished by the Acquired Fund for use in documents that may be necessary in connection with the transactions contemplated herein shall comply in all material respects with federal securities and other laws and regulations and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. o) The Acquired Fund has elected to qualify and has qualified as a "regulated investment company" under the Code (a "RIC"), as of and since its first taxable year; has been a RIC under the Code at all times since the end of its first taxable year when it so qualified; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. p) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1940 Act or Massachusetts law for the execution of this Agreement by the Trust, for itself and on behalf of the Acquired Fund, except for the filing of any articles, certificates or other documents that may be required under Massachusetts law, and except for such other consents, approvals, authorizations and filings as have been made or received, and except for such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (American Century California Tax Free & Municipal Funds)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~Trust, on behalf of the Acquired Fund, represents and warrants to ~~the Federated Trust, on behalf of~~ the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the Commonwealth of Massachusetts. b) The ~~Corporation~~ Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ Trust registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's Articles~~ Trust’s Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~July 31, ~~2005~~2007, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of January 31, 2007, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (g) and (h) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jk) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund shares, and has no outstanding securities convertible into any of the Acquired Fund shares. l) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances of which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the Commonwealth of Massachusetts, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. m) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. n) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. o) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Trust with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. p) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. q) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Massachusetts law for the execution of this Agreement by the Trust, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Massachusetts law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Money Market Obligations Trust /New/)

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated MDT Series)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~TRUST, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust~~TRUST, on behalf of the Acquiring Fund, as follows: a) The Acquired Fund is a legally designated, separate series of a ~~corporation~~ statutory trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~the Massachusetts. b) The ~~Corporation~~ TRUST is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation's~~ TRUST’s registration with the Securities and Exchange Commission (the "“Commission"”) as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "“1933 Act"”) and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is ~~not in violation~~not, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will ~~not~~ not, result in ~~a violation,~~ the violation of any provision of the ~~Corporation's Articles of Incorporation~~ TRUST’s DECLARATION OF TRUST or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The audited financial statements of the Acquired Fund as of ~~November 30~~December 31, ~~2005~~2008, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles~~, and audited by PricewaterhouseCoopers LLP, independent registered public accountants~~, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) The unaudited financial statements of the Acquired Fund as of June 30, 2009, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. i) Since the date of the financial statements referred to in paragraph (gh) above, there have been no material adverse changes in the Acquired Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. ij) As of the date hereof, except as previously disclosed to the Acquiring Fund in writing, and except as have been corrected as required by applicable law, and to the best of the Acquired Fund’s knowledge, there have been no material miscalculations of the net asset value of the Acquired Fund or the net asset value per share of any class or series of shares during the twelve-month period preceding the date hereof and preceding the Closing Date, and all such calculations have been made in accordance with the applicable provisions of the 1000 Xxx. k) The minute books and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement contain a true and complete record of all action taken at all meetings and by all written consents in lieu of meetings of the shareholders of the Acquired Fund and of the Acquired Fund, the Acquired Fund’s Board of Trustees and committees of the Acquired Fund’s Board of Trustees. The stock transfer ledgers and other similar records of the Acquired Fund as made available to the Acquiring Fund prior to the execution of this Agreement, and as existing on the Closing Date, accurately reflect all record transfers prior to the execution of this Agreement, or the Closing Date, as applicable, in the Acquired Fund Shares. l) The Acquired Fund has maintained, or caused to be maintained on its behalf, all books and records required of a registered investment company in compliance with the requirements of Section 31 of the 1940 Act and rules thereunder. m) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. jn) All issued and outstanding ~~shares of the~~ Acquired Fund Shares are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding ~~shares of the~~ Acquired Fund Shares will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's ’s transfer agent as provided in paragraph 33.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any of the Acquired Fund Shares, and has no outstanding securities convertible into any of the Acquired Fund Shares. o) At the Closing Date, the Acquired Fund will have good and marketable title to the Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, free of any lien or other encumbrance, except those liens or encumbrances to which the Acquiring Fund has received notice, and, upon delivery and payment for such assets, and the filing of any articles, certificates or other documents under the laws of the Commonwealth of Massachusetts, the Acquiring Fund will acquire good and marketable title, subject to no restrictions on the full transfer of such assets, other than such restrictions as might arise under the 1933 Act, and other than as disclosed to and accepted by the Acquiring Fund. p) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles. q) The information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations. r) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the TRUST with respect to the Acquired Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading. s) The Acquired Fund has qualified and elected to be treated as a “regulated investment company” under the Code (a “RIC”), as of and since its first taxable year; and qualifies and will continue to qualify as a RIC under the Code for its taxable year ending upon its liquidation. t) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Massachusetts law for the execution of this Agreement by the TRUST, for itself and on behalf of the Acquired Fund, except for the effectiveness of the Registration Statement, and the filing of any articles, certificates or other documents that may be required under Massachusetts law, and except for such other consents, approvals, authorizations and filings as have been made or received, and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Acquired Fund as described in paragraph 5.2.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated Insurance Series)

REPRESENTATIONS OF THE ACQUIRED FUND. The ~~Corporation~~FEF Trust, on behalf of the Acquired Fund, represents and warrants to the ~~Federated Trust, on behalf of the Acquiring Fund,~~ MDT Trust as follows: a) The Acquired Fund is a legally designated, separate ~~series~~ portfolio of a ~~corporation~~ trust duly organized, validly existing, and in good standing under the laws of ~~Maryland~~Massachusetts. b) The ~~Corporation~~ FEF Trust is registered as an open-end management investment company under the 1940 Act, and the ~~Corporation~~FEF Trust's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect. c) The current prospectus and statement of additional information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and regulations thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. d) The Acquired Fund is not in violation, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result in a the violation, of any provision of the ~~Corporation~~FEF Trust's ~~Articles~~ Declaration of ~~Incorporation~~ Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound. e) The Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged as provided in paragraph 1.3 hereof. f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation by of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. g) The financial statements of the Acquired Fund as of ~~November 30~~October 31, ~~2005~~2006, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles, and audited by ~~PricewaterhouseCoopers~~ KPMG LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements. h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Acquired Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (hi), a decline in the net asset value of the Acquired Fund shall not constitute a material adverse change. i) All federal and other tax returns and reports of the Acquired Fund required by law to be ~~filed prior to the date hereof~~ filed, have been ~~filed (and all federal and other tax returns and reports of the Acquired Fund required by law to be filed from and after the date hereof to the Closing Date will be~~ filed), and all federal and other taxes shown due on such returns and reports have been ~~(or will be)~~ paid, or provision shall have been made for the payment thereof. To the best of the Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. j) All issued and outstanding shares of the Acquired Fund are duly and validly issued and outstanding, fully paid and non-assessable by the Acquired Fund. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund's transfer agent as provided in paragraph 3.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Federated MDT Series)

Common use of REPRESENTATIONS OF THE ACQUIRED FUND Clause in Contracts