REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund as follows: (a) The Acquiring Fund is a separate investment series of the Trust, a business trust duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts. (b) The Acquiring 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 type, and its registration with 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not result, in violation of the Trust's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound. (e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring 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. (f) The audited financial statements of the Acquiring Fund at December 31, 2002 are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date not disclosed therein. (g) Since December 31, 2002, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change. (h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder. (j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is there outstanding any security convertible into any Acquiring Fund Shares. (k) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles. (l) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, for the account of the Selling Fund Shareholders, pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable. (m) The information furnished by the Acquiring 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 applicable thereto. (n) The Prospectus/Proxy Statement included in the Registration Statement (only insofar as it 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. (o) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust), Agreement and Plan of Reorganization (Touchstone Variable Series Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund Trust, on behalf of the Selling Fund, as follows:
(a) The Acquiring Fund is a separate investment series of the Trust, a business trust duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Trust, which Trust is registered as an investment company classified as a management company of the open-end typemanagement investment company under the 1940 Act, and its the Acquiring Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(b) Before the Closing Date, the Acquiring Fund will be a duly established and designated series of the Acquiring Trust, a business trust that is duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts, and will have power to carry on its business as it is now being conducted and to carry out this Agreement.
(c) The current prospectus and statement of additional information of the Acquiring Fund conform in all material respects to has not commenced operations and will not do so until after the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing.
(d) The Acquiring Fund is notnot in violation of, and the execution, delivery and performance of this Agreement will not resultresult in a violation of, in violation of the Acquiring Trust's Declaration of Trust trust instrument or By-Laws bylaws or of any material agreement, indenture, instrument, contract, lease, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, assets which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December 31, 2002 are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date not disclosed therein.
(g) Since December 31, 2002, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is there outstanding any security convertible into any Acquiring Fund Shares.
(k) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject as to enforcement, enforcement to bankruptcy, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights and to general equity principles.
(lg) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Fund for the account of the Selling Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued Acquiring Fund Shares, Shares and will be fully paid and non-assessablenonassessable.
(mh) The information to be furnished by the Acquiring Fund for use in no-action letters, applications for orders, registration statements, proxy materials, materials and other documents that may be necessary in connection with the transactions contemplated hereby is herein shall be accurate and complete in all material respects and complies shall comply in all material respects with federal securities and other laws and regulations applicable theretoregulations.
(ni) The Prospectus/Proxy Statement included in From the Registration Statement (only insofar as it relates time of the meeting of the Selling Fund Shareholders and on the Closing Date, any written information furnished by the Acquiring Trust with respect to the Acquiring Fund) Fund for use in the Proxy Materials (as 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 therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(oj) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such will be a "fund" as defined in section 851(g)(2) of the state Blue Sky or securities laws Code and will meet all the requirements of Subchapter M for qualification and treatment as it may deem appropriate in order to continue a RIC for its operations after taxable year that includes the Closing DateDate and shall continue to qualify as a RIC under the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Janus Investment Fund), Agreement and Plan of Reorganization (Janus Investment Fund)
REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund as follows:
(a) The Acquiring Fund Trust is a separate investment series of the Trust, a business trust duly organized, validly existing, existing and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Acquiring Trust duly authorized in accordance with the applicable provisions of the Acquiring Trust, which 's Declaration of Trust.
(c) The Acquiring Trust is registered as an investment company classified as a management company of the open-end type, and its registration with the Commission as an management investment company under the 1940 Act Act, and such registration is in full force and effect.
(cd) The current prospectus Acquiring Fund shall have no assets as of the Closing Date, and statement of additional information there shall be no issued and outstanding shares of the Acquiring Fund conform prior to or at the Closing Date, other than those acquired, assumed or issued in all material respects order to facilitate the applicable requirements commencement of the 1933 Act and the 1940 Act and the rules and regulations operations 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 misleadingAcquiring Fund.
(de) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not result, in a violation of the Acquiring Trust's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(ef) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no No litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its the Acquiring Fund's financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(fg) The audited financial statements Before the Closing Date, the Acquiring Fund shall have duly authorized the shares of the Acquiring Fund at December 31, 2002 are in accordance with generally accepted accounting principles consistently applied, to be issued and such statements (copies of which have been furnished delivered to the Selling Fund) fairly reflect the financial condition of the Acquiring Target Fund as of such datethe Effective Time. When issued and delivered, and there are no known contingent liabilities of the Acquiring Fund as of such date not disclosed therein.
(g) Since December 31, 2002, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value shares of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstandingissued, fully paid and non-assessableassessable by the Acquiring Fund (recognizing that under Massachusetts law, Acquiring Fund shareholders, under certain circumstances, could be held personally liable for the obligations of the Acquiring Fund). The Acquiring Fund does not have has no outstanding any options, warrants, or other rights to subscribe for or purchase any shares of the Acquiring Fund SharesFund, nor is and there are no outstanding any security securities convertible into any shares of the Acquiring Fund SharesFund.
(kh) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this including the determination of the Acquiring Fund Board required pursuant to Rule 17a-8(a) of the 1940 Act. This Agreement constitutes a valid and binding obligation of the Acquiring Fund 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.
(li) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Target Fund for the account of the Selling Target Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued shares of the Acquiring Fund SharesFund, and will be fully paid and non-assessableassessable (recognizing that under Massachusetts law, Acquiring Fund shareholders, under certain circumstances, could be held personally liable for the obligations of the Acquiring Fund).
(mj) The information to be furnished by the Acquiring 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 herein shall be accurate and complete in all material respects and complies shall comply in all material respects with federal securities laws and other laws and regulations applicable theretoregulations.
(nk) The Prospectus/Proxy Statement included in Any written information furnished by the Registration Statement (only insofar as it relates Acquiring Trust with respect to the Acquiring Fund) Fund for use 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 therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(ol) The Acquiring Fund will have the same investment objective, investment policies, investment advisor, sub- advisor, portfolio managers and service providers as the Target Fund.
(m) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.. ARTICLE V
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Destra Investment Trust), Agreement and Plan of Reorganization (Destra Investment Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund as follows:
(a) The Acquiring Fund is a separate investment series of the Trust, a business trust duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring 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 type, and its registration with 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not result, in violation of the Trust's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring 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.
(f) The audited financial statements of the Acquiring Fund at December 31, 2002 are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date not disclosed therein.
(g) Since December 31, 2002, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital capital/loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is there outstanding any security convertible into any Acquiring Fund Shares.
(k) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles.
(l) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, for the account of the Selling Fund Shareholders, pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable.
(m) The information furnished by the Acquiring 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 applicable thereto.
(n) The Prospectus/Proxy Statement included in the Registration Statement (only insofar as it 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.
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust), Agreement and Plan of Reorganization (Touchstone Variable Series Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund as follows:
(a) The Acquiring Fund is a separate investment series of the Trust, a business trust duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring 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 type, and its registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The At the Closing Date, the current prospectus and statement of additional information of the Acquiring Fund will conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not result, in violation of the Trust's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring 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.
(f) The audited financial statements of the Acquiring Fund at December 31, 2002 are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are has no known contingent liabilities of the Acquiring Fund as of such date not disclosed thereina material amount, contingent or otherwise.
(g) Since December 31, 2002At the Closing Date, there has will not been be any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the The Acquiring Fund has met intends to meet the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed from its inception, intends to distribute in each such fiscal year of its operation all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met intends to meet the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is there outstanding any security convertible into any Acquiring Fund Shares.
(k) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles.
(l) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, for the account of the Selling Fund Shareholders, pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable.
(m) The information furnished by the Acquiring 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 applicable thereto.
(n) The Prospectus/Proxy Statement included in the Registration Statement (only insofar as it 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.
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust), Agreement and Plan of Reorganization (Touchstone Variable Series Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund, represents and warrants to the FirstMerit Trust, on behalf of the Selling Fund Fund, as follows:
(a) The Acquiring Fund is a legally designated, separate investment series of the Trusta voluntary association, a business trust duly organized, validly existing, existing and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Trust, which Federated Trust is registered as an investment company classified as a management company of the open-end typemanagement investment company under the 1940 Act, and its the Trust's registration with 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder thereunder, and do not no 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 such statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not resultnot, result in a violation of the Federated Trust's Declaration of Trust Instrument or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December as of October 31, 2002 are 2001, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles consistently appliedprinciples, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such dateOctober 31, 2001, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed thereinin such statements.
(g) Since December 31, 2002the date of the financial statements referred to in paragraph (f) above, there has not have been any no material adverse change changes in the Acquiring Fund's financial condition, assets, liabilities, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph paragraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all All federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall filed, have been filed, and all . All federal and other taxes shown due on said such returns and reports shall have been paid or provision shall have been made for the payment thereoftheir payment. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, are duly and validly issued and outstanding, fully paid and non-assessableassessable by the Acquiring Fund. The Acquiring Fund does not have has no outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is Shares and there are no outstanding any security securities convertible into any Acquiring Fund Shares.
(kj) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund 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.
(lk) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Fund for the account of the Selling Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable.
(ml) The information to be furnished by the Acquiring 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 herein shall be accurate and complete in all material respects and complies shall comply in all material respects with federal securities and other laws and regulations applicable theretoregulations.
(nm) The Prospectus/Proxy Statement included in From the effective date of the Registration Statement (only insofar as it relates defined in paragraph 5.7), through time of the meeting of the Selling Fund Shareholders and on the Closing Date, any written information furnished by the Federated Trust with respect to the Acquiring Fund) 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 therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(n) The Acquiring Fund has elected to qualify and has qualified as a RIC under the Code 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 shall continue to qualify as a RIC under the Code for its current taxable year.
o) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, 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 Acquiring Fund, or the performance of the Agreement by the Federated Trust, for itself and on behalf of the Acquiring 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 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.
p) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Money Market Obligations Trust /New/), Agreement and Plan of Reorganization (Federated Equity Funds)
REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund as follows:
(a) The Acquiring Fund Trust is a separate investment series of the Trust, a business trust duly organized, validly existing, existing and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Acquiring Trust duly authorized in accordance with the applicable provisions of the Acquiring Trust, which ’s Declaration of Trust.
(c) The Acquiring Trust is registered as an investment company classified as a management company of the open-end type, and its registration with the Commission as an management investment company under the 1940 Act Act, and such registration is in full force and effect.
(cd) The current prospectus Acquiring Fund shall have no assets as of the Closing Date, and statement of additional information there shall be no issued and outstanding shares of the Acquiring Fund conform prior to or at the Closing Date, other than those acquired, assumed or issued in all material respects order to facilitate the applicable requirements commencement of the 1933 Act and the 1940 Act and the rules and regulations operations 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 misleadingAcquiring Fund.
(de) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not result, in a violation of the Acquiring Trust's ’s Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(ef) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no No litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its the Acquiring Fund’s financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(fg) The audited financial statements Before the Closing Date, the Acquiring Fund shall have duly authorized the shares of the Acquiring Fund at December 31, 2002 are in accordance with generally accepted accounting principles consistently applied, to be issued and such statements (copies of which have been furnished delivered to the Selling Fund) fairly reflect the financial condition of the Acquiring Target Fund as of such datethe Effective Time. When issued and delivered, and there are no known contingent liabilities of the Acquiring Fund as of such date not disclosed therein.
(g) Since December 31, 2002, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value shares of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstandingissued, fully paid and non-assessableassessable by the Acquiring Fund (recognizing that under Massachusetts law, Acquiring Fund shareholders, under certain circumstances, could be held personally liable for the obligations of the Acquiring Fund). The Acquiring Fund does not have has no outstanding any options, warrants, or other rights to subscribe for or purchase any shares of the Acquiring Fund SharesFund, nor is and there are no outstanding any security securities convertible into any shares of the Acquiring Fund SharesFund.
(kh) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this including the determination of the Acquiring Fund Board required pursuant to Rule 17a-8(a) of the 1940 Act. This Agreement constitutes a valid and binding obligation of the Acquiring Fund 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.
(li) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Target Fund for the account of the Selling Target Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued shares of the Acquiring Fund SharesFund, and will be fully paid and non-assessableassessable (recognizing that under Massachusetts law, Acquiring Fund shareholders, under certain circumstances, could be held personally liable for the obligations of the Acquiring Fund).
(mj) The information to be furnished by the Acquiring 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 herein shall be accurate and complete in all material respects and complies shall comply in all material respects with federal securities laws and other laws and regulations applicable theretoregulations.
(nk) The Prospectus/Proxy Statement included in Any written information furnished by the Registration Statement (only insofar as it relates Acquiring Trust with respect to the Acquiring Fund) Fund for use 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 therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(ol) The Acquiring Fund will have the same investment objective, investment policies, investment advisor, sub-advisor, portfolio managers and service providers as the Target Fund.
(m) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Destra Investment Trust II), Agreement and Plan of Reorganization (Destra Investment Trust II)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund Trust, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a legally designated, separate investment series of the Trust, a business trust trust, duly organized, validly existing, existing and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Trust, which Federated Trust is registered as an investment company classified as a management company of the open-end typemanagement investment company under the 1940 Act, and its the Federated Trust's registration with 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder 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 such statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not resultnot, result in a violation of the Federated Trust's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Acquired Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December as of October 31, 2002 are 2003 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles consistently appliedprinciples, and such statements (copies of which have been furnished to the Selling Acquired Funds) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed in such statements.
g) The unaudited financial statements of the Acquiring Fund as of April 30, 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 Acquired Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed thereinin such statements.
h) Since the date of the financial statements referred to in paragraph (g) Since December 31, 2002above, there has not have been any no material adverse change changes in the Acquiring Fund's financial condition, assets, liabilities, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Acquired Fund. For the purposes of this subparagraph paragraph (gh), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(hi) At the Closing Date, all All federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall filed, have been filed, and all . All federal and other taxes shown due on said such returns and reports shall have been paid or provision shall have been made for the payment thereoftheir payment. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, are duly and validly issued and outstanding, fully paid and non-assessableassessable by the Acquiring Fund. The Acquiring Fund does not have has no outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is and there are no outstanding any security securities convertible into any Acquiring Fund Shares.
(k) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund 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.
(l) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Acquired Fund for the account of the Selling Acquired Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable.
(m) The information to be furnished by the Acquiring 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 herein shall be accurate and complete in all material respects and complies shall comply in all material respects with federal securities and other laws and regulations applicable theretoregulations.
(n) The Prospectus/Proxy Statement included in From the effective date of the Registration Statement (only insofar as it relates 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 Federated Trust with respect to the Acquiring Fund) 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 therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(o) The Acquiring Fund has elected to qualify and has qualified as a RIC under the Code 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 shall continue to qualify as a RIC under the Code for its current taxable year.
p) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the 1934 Act, the 1940 Act or Massachusetts law for the execution of this Agreement by the Federated Trust, for itself and on behalf of the Acquiring Fund, or the performance of the Agreement by the Federated Trust, for itself and on behalf of the Acquiring 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 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.
q) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Banknorth Funds)
REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund as follows:
(a) The Acquiring Fund Trust is a separate investment series of the Trustbusiness trust, a business trust duly organized, validly existing, existing and in good standing under the laws of the Commonwealth State of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Trust duly authorized in accordance with the applicable provisions of the Trust, which ’s Revised Trust Instrument and Bylaws.
(c) The Trust is registered as an investment company classified as a management company of the open-end type, and its registration with the Commission as an management investment company under the 1940 Act 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not result, in a violation of the Trust's Declaration of ’s Revised Trust Instrument or By-Laws Bylaws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no No litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Trust or the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Trust or the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Neither the Trust nor the Acquiring Fund knows of no any facts that might form the a reasonable basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at for the fiscal year ended December 31, 2002 are 2012, have been prepared in accordance with generally accepted accounting principles consistently appliedand have been audited by an independent registered public accounting firm, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such dateDecember 31, 2012, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed thereinin such statements.
(g) Since December 31, 2002the date of the financial statements referred to in subsection (g) above, there has not have been any no material adverse change changes in the Acquiring Fund's ’s financial condition, assets, liabilities, liabilities or business (other than changes occurring in the ordinary course of business, or any incurrence by ) and there are no known contingent liabilities of the Acquiring Fund of indebtedness maturing more than one year from the date arising after such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Funddate. For the purposes of this subparagraph subsection (gh), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing DateAll U.S. federal, all federal state, local and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall it (taking into account permitted extensions for filing) have been filedtimely filed and are correct in all material respects. All U.S. federal, and all federal state, local and other taxes required to be paid (whether or not shown due on said returns and reports shall any such return or report) have been paid paid, or provision shall have been made for the payment thereofthereof and any such unpaid taxes are properly reflected on the financial statements referred to in subsection (h) above. To the best of Acquiring Fund’s knowledge, no tax authority is currently auditing or preparing to audit the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment for taxes, interest, additions to tax, or penalty has been asserted with respect to such returnsagainst the Acquiring Fund.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding shares of the Acquiring Fund Shares are, and at the Closing Date will be, are duly and validly issued and outstanding, fully paid paid, and non-assessablesuch Acquiring Fund shareholders did not have any obligation to make payments to the Acquiring Fund or its creditors (other than the purchase price for the Shares) or contributions to the Acquiring Fund or its creditors solely by reason of the purchasers’ ownership of the Shares. The Acquiring Fund does not have has no outstanding any options, warrants, or other rights to subscribe for or purchase any shares of the Acquiring Fund SharesFund, nor is there and has no outstanding any security securities convertible into any shares of the Acquiring Fund SharesFund.
(kj) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund 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.
(lk) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Fund for the account of the Selling Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued shares of the Acquiring Fund, and holders of such shares will not have any obligation to make payments to the Acquiring Fund or its creditors (other than the purchase price for the Shares) or contributions to the Acquiring Fund or its creditors solely by reason of the purchasers’ ownership of the Shares. The Acquiring Fund has no outstanding options, warrants or other rights to subscribe for or purchase any shares of the Acquiring Fund, and will be fully paid and non-assessablehas no outstanding securities convertible into shares of the Acquiring Fund.
(ml) The information to be furnished by the Acquiring 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 herein shall be accurate and complete in all material respects and complies shall comply in all material respects with U.S. federal securities and other laws and regulations applicable theretoregulations.
(nm) The Prospectus/Proxy Statement included current prospectus and statement of additional information of the Acquiring Fund conform in all material respects to the Registration Statement (only insofar as it relates applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations thereunder and do not include, with respect to the Trust or the Acquiring Fund) does not contain , any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements they were made, not misleading.
(n) For each taxable year of its operations, the Acquiring Fund (i) has elected to qualify, and has qualified or will qualify (in the case of the current taxable year), as a RIC, (ii) has been eligible to and has computed its U.S. federal income tax under Section 852 of the Code, and (iii) has been, and will be as of the Closing Date treated as a separate corporation for U.S. federal income tax purposes pursuant to Section 851(g) of the Code. The Acquiring Fund will qualify as a RIC as of the Closing Date and will have satisfied as of the close of its most recent prior quarter of its taxable year, the diversification requirements of Section 851(b)(3) of the Code without regard to the last sentence of Section 851(d) of the Code. The Acquiring Fund has not taken any action, caused any action to be taken or caused any action to fail to be taken which action or failure could cause the Selling Fund to fail to qualify as a RIC under the Code.
(o) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the 1940 Act or Massachusetts law for the execution of this Agreement by the Trust, for itself and on behalf of the Acquiring Fund, or the performance of this Agreement by the Trust, for itself and on behalf of the Acquiring Fund, except the filing of any documents that may be required under Massachusetts state law and except for the filing of any documents that may be required under the 1933 Act and the 1940 Act and 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.
(p) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
(q) The Trust’s Board of Trustees satisfies the fund governance standards defined in Rule 01(a)(7) under the 1940 Act as they currently apply to the Trust.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Westcore Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund Trust, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a legally designated, separate investment series of the Trust, a business trust trust, duly organized, organized and validly existing, existing and the Federated Trust is in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Trust, which Federated Trust is registered as an investment company classified as a management company of the open-end typemanagement investment company under the 1940 Act, and its the Federated Trust's registration with 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder 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 such statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not resultnot, result in a violation of the Federated Trust's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except . e)Except as otherwise disclosed in writing to and accepted by the Selling Acquired Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited . f)The financial statements of the Acquiring Fund at December 31as of April 30, 2002 are 2006 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles consistently appliedprinciples, and audited by Ernst & Young LLP, inde- pendent registered public accountants, and such statements (copies of which have been furnished to the Selling Acquired Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed thereinin such statements.
(g) Since December 31, 2002, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is there outstanding any security convertible into any Acquiring Fund Shares.
(k) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles.
(l) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, for the account of the Selling Fund Shareholders, pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when so issued and delivered, will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable.
(m) The information furnished by the Acquiring 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 applicable thereto.
(n) The Prospectus/Proxy Statement included in the Registration Statement (only insofar as it 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.
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Federated Income Securities Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The MDT Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund FEF Trust as follows:
(a) The Acquiring Fund MDT Trust is a separate investment series of the Trust, a legally designated business trust duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Trust, which MDT Trust is registered as an investment company classified as a management company of the open-end typemanagement investment company under the 1940 Act, and its the MDT Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus prospectuses and statement of additional information of the Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder 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 such statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is notnot in violation, and the execution, delivery and performance of this Agreement will not resultresult in a violation, in violation of the MDT Trust's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Acquired Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December as of July 31, 2002 are 2006, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles consistently appliedprinciples, and audited by Ernst & Young LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Selling Acquired Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed thereinin such statements.
g) The unaudited financial statements of the Acquiring 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 Acquired Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring 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) Since December 31, 2002above, there has not have been any no material adverse change changes in the Acquiring Fund's financial condition, assets, liabilities, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Acquired Fund. For the purposes of this subparagraph paragraph (gh), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(hi) At the Closing Date, all All federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall filed, have been filed, and all . All federal and other taxes shown due on said such returns and reports shall have been paid or provision shall have been made for the payment thereoftheir payment. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, are duly and validly issued and outstanding, fully paid and non-assessableassessable by the Acquiring Fund. The Acquiring Fund does not have has no outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is and there are no outstanding any security securities convertible into any Acquiring Fund Shares.
(kj) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring FundMDT Trust, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund MDT Trust, 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.
(lk) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Acquired Fund for the account of the Selling Acquired Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-non- assessable.
(ml) The information to be furnished by the Acquiring 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 herein shall comply in all material respects with federal securities and other laws and regulations applicable thereto.
(n) The Prospectus/Proxy Statement included in the Registration Statement (only insofar as it relates to the Acquiring Fund) does and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(m) The Acquiring Fund has elected to qualify and has qualified as a RIC under the Code 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 shall continue to qualify as a RIC under the Code for its current taxable year.
n) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the 1934 Act, the 1940 Act or Massachusetts law for the execution of this Agreement by the MDT Trust or the performance of the Agreement by the MDT 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 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.
o) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Federated MDT Series)
REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund, Fund represents and warrants to the Selling Fund Corporation as follows:
(a) The Acquiring Fund is a separate investment series of the TrustMassachusetts business trust, a business trust duly organized, validly existing, existing and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring 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 typemanagement investment company under the 1940 Act, and its the Acquiring Fund's registration with 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder 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 such statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is notnot in violation, and the execution, delivery and performance of this Agreement will not resultresult in a violation, in violation of the TrustAcquiring Fund's Declaration of Trust or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Acquired Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December 31as of June 30, 2002 are 2006, and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles consistently appliedprinciples, and audited by Ernst & Young LLP, independent registered public accountants, and such statements (copies of which have been furnished to the Selling Acquired Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed thereinin such statements.
(g) Since December 31, 2002the date of the financial statements referred to in paragraph (f) above, there has not have been any no material adverse change changes in the Acquiring Fund's financial condition, assets, liabilities, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Acquired Fund. For the purposes of this subparagraph paragraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all All federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall filed, have been filed, and all . All federal and other taxes shown due on said such returns and reports shall have been paid or provision shall have been made for the payment thereoftheir payment. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, are duly and validly issued and outstanding, fully paid and non-assessableassessable by the Acquiring Fund. The Acquiring Fund does not have has no outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is and there are no outstanding any security securities convertible into any Acquiring Fund Shares.
(kj) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund 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.
(lk) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Acquired Fund for the account of the Selling Acquired Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable.
(ml) The information to be furnished by the Acquiring 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 herein shall comply in all material respects with federal securities and other laws and regulations applicable thereto.
(n) The Prospectus/Proxy Statement included in the Registration Statement (only insofar as it relates to the Acquiring Fund) does and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(m) The Acquiring Fund has elected to qualify and has qualified as a RIC under the Code 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 shall continue to qualify as a RIC under the Code for its current taxable year.
n) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the 1934 Act, the 1940 Act or Massachusetts law for the execution of this Agreement by the Acquiring Fund or the performance of the Agreement by the Acquiring 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 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.
o) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Federated Short Term Municipal Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund, Fund represents and warrants to the Selling Fund as follows:
(a) The Acquiring Fund is a separate investment series of the Truststatutory trust, a business trust duly organized, validly existing, existing and in good standing under the laws of the Commonwealth State of MassachusettsDelaware.
(b) The Acquiring Fund is a separate investment series duly authorized in accordance with the applicable provisions of the Trust, which Acquiring Fund’s Revised Trust Instrument and Bylaws.
(c) The Acquiring Fund is registered as an investment company classified as a management company of the openclosed-end type, and its registration with the Commission as an management investment company under the 1940 Act 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 Acquiring Fund conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not result, in a violation of the Trust's Declaration of Acquiring Fund’s Revised Trust Instrument or By-Laws or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no No litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at as of December 31, 2002 are 2009, and for the fiscal year then ended, have been prepared in accordance with generally accepted accounting principles consistently appliedand have been audited by independent auditors, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date that are not disclosed thereinin such statements.
(g) Since December 31, 2002the dates of the financial statements referred to in subsection (g) above, there has not have been any no material adverse change changes in the Acquiring Fund's ’s financial condition, assets, liabilities, liabilities or business (other than changes occurring in the ordinary course of business, or any incurrence by ) and there are no known contingent liabilities of the Acquiring Fund of indebtedness maturing more than one year from the date arising after such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Funddate. For the purposes of this subparagraph subsection (gh), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is there outstanding any security convertible into any Acquiring Fund Shares.
(k) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights and to general equity principles.
(l) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Fund for the account of the Selling Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued shares of the Acquiring Fund SharesFund, and will be fully paid and non-assessable. The Acquiring Fund has no outstanding options, warrants or other rights to subscribe for or purchase any shares of the Acquiring Fund, and has no outstanding securities convertible into shares of the Acquiring Fund.
(mi) The information to be furnished by the Acquiring 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 herein shall be accurate and complete in all material respects and complies shall comply in all material respects with federal securities and other laws and regulations applicable theretoregulations.
(nj) The Prospectus/Proxy Statement included Other than approval by the Acquiring Fund Shareholders, the execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund. Subject to approval by the Acquiring Fund shareholders, this Agreement constitutes a valid and binding obligation of the Acquiring Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(k) From the effective date of the Registration Statement (only insofar as it relates defined in Section 5.7), through the time of the meeting of the Selling Fund Shareholders and on the Closing Date, any written information furnished by the Acquiring Fund with respect to the Acquiring Fund) Fund for use in the Proxy Materials (as defined in Section 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 therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(ol) The Acquiring Fund (i) will elect to be taxed as a RIC, will qualify for the tax treatment afforded RICs under the Code for its taxable year that includes the Closing Date, and intends to continue to qualify for such treatment for its subsequent taxable years, (ii) will be eligible to compute its U.S. federal income tax under Section 852 of the Code for the taxable year that includes the Closing Date, and (iii) will be treated as a separate corporation for U.S. federal income tax purposes pursuant to Section 851(g) of the Code for the taxable year that includes the Closing Date.
(m) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the 1934 Act, the 1940 Act or Delaware law for the execution of this Agreement by the Acquiring Fund, or the performance of the Agreement by the Acquiring Fund, except for the effectiveness of the Registration Statement (as defined in Section 5.7) and the Post-Effective Amendment (as defined in Section 8.5) and the filing of any documents that may be required under Delaware state law and except for the filing of any documents that may be required under the 1933 Act, the 1934 Act and the 1940 Act and 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.
(n) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such of the any state Blue Sky or securities laws as it may deem appropriate in order to continue its operations after the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (DCA Total Return Fund)
REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Trust, on behalf of the Acquiring Fund, represents and warrants to the Selling Fund Trust, on behalf of the Selling Fund, as follows:
(a) The Acquiring Fund is a separate investment series of the Trust, a business trust duly organized, validly existing, and in good standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of the Trust, which Trust is registered as an investment company classified as a management company of the open-end typemanagement investment company under the 1940 Act, and its the Acquiring Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(b) Before the Closing Date, the Acquiring Fund will be a duly established and designated series of the Acquiring Trust, a statutory trust that is duly organized, validly existing and in good standing under the laws of the State of Delaware, and will have power to carry on its business as it is now being conducted and to carry out this Agreement.
(c) The current prospectus and statement of additional information of the Acquiring Fund conform in all material respects to has not commenced operations and will not do so until after the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing.
(d) The Acquiring Fund is notnot in violation of, and the execution, delivery and performance of this Agreement will not resultresult in a violation of, in violation of the Acquiring Trust's Declaration of Trust trust instrument or By-Laws bylaws or of any material agreement, indenture, instrument, contract, lease, lease or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the Selling Fund, no litigation, administrative proceeding or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Acquiring Fund or any of its properties or assets, assets which, if adversely determined, would materially and adversely affect its financial condition and condition, the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and it 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 transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December 31, 2002 are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect the financial condition of the Acquiring Fund as of such date, and there are no known contingent liabilities of the Acquiring Fund as of such date not disclosed therein.
(g) Since December 31, 2002, there has not been any material adverse change in the Acquiring Fund's financial condition, assets, liabilities, or business other than changes occurring in the ordinary course of business, or any incurrence by the Acquiring Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Selling Fund. For the purposes of this subparagraph (g), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(h) At the Closing Date, all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such date shall have been filed, and all federal and other taxes shown due on said returns and reports shall have been paid or provision shall have been made for the payment thereof. To the best of the Acquiring Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(i) For each fiscal year of its operation, the Acquiring Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(j) All issued and outstanding Acquiring Fund Shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Shares, nor is there outstanding any security convertible into any Acquiring Fund Shares.
(k) The execution, delivery, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund Fund, enforceable in accordance with its terms, subject as to enforcement, enforcement to bankruptcy, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights and to general equity principles.
(lg) The Acquiring Fund Shares to be issued and delivered to the Selling Fund, Fund for the account of the Selling Fund Shareholders, Shareholders pursuant to the terms of this Agreement will, at the Closing Date, have been duly authorized and, when authorized. When so issued and delivered, such shares will be duly and validly issued Acquiring Fund Shares, Shares and will be fully paid and non-assessablenonassessable.
(mh) The information to be furnished by the Acquiring Fund for use in no-action letters, applications for orders, registration statements, proxy materials, materials and other documents that may be necessary in connection with the transactions contemplated hereby is herein shall be accurate and complete in all material respects and complies shall comply in all material respects with federal securities and other laws and regulations applicable theretoregulations.
(ni) The Prospectus/Proxy Statement included in From the Registration Statement (only insofar as it relates time of the meeting of the Selling Fund Shareholders and on the Closing Date, any written information furnished by the Acquiring Trust with respect to the Acquiring Fund) Fund for use in the Proxy Materials (as 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 therein or necessary to make the statements thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(oj) The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and such will be a "fund" as defined in section 851(g)(2) of the state Blue Sky or securities laws Code and will meet all the requirements of Subchapter M for qualification and treatment as it may deem appropriate in order to continue a RIC for its operations after taxable year that includes the Closing DateDate and shall continue to qualify as a RIC under the Code.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Janus Adviser Series)
