REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Fund represents and warrants to the Selling Fund as follows: (a) The Acquiring Fund is a separate investment series of the Trust. (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 prospectus and statement of additional information, as of the date of the Schedule 14C Information Statement, 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 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 the Selling Fund 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, 2011 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, 2011, 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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains. (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 Schedule 14C Information 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 (Huntington Funds)
REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund 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 a statutory trust duly organized, validly existing, and in good standing under the Trustlaws 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 Trust registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus and statement of additional information, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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 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.
(. e) Except as otherwise disclosed in writing to the Selling Fund 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, 2011 are 2009 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 FundAcquired 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 not disclosed therein.
(g) Since December 31, 2011, 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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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 Schedule 14C Information 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.reflect
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Money Market Obligations Trust /New/)
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 Trust is a separate investment series voluntary association, duly organized, validly existing, and in good standing under the laws of the TrustState of Delaware with the power to own all of its properties and assets and to carry on its business as presently conducted.
(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 Trust Instrument.
(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 is in full force and effect.
(c) The prospectus and statement of additional information, as of the date of the Schedule 14C Information Statement, 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 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 resultnot, result in a violation of the Trust’s Declaration Acquiring Fund's Articles of Trust Incorporation 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 the Selling Fund 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 December 31as of September 30, 2011 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 dateSeptember 30, 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, 2011the date of the financial statements referred to in subsection (f) 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 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 subsection (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 '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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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, 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, 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 Schedule 14C Information From the effective date of the Registration Statement (only insofar as it relates to 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) does Fund for use in the Proxy Materials (as defined in Section 5.7), or any other materials provided in connection with the Reorganization, 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) For each taxable year of its operations, the Acquiring Fund has elected to qualify, has qualified and shall continue to qualify as a RIC under the Code.
(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 (Berger Investment Portfolio Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund 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 a business trust, duly organized and validly existing under the Trustlaws 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, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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 Federated 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.
(e) Except as otherwise disclosed in writing to the Selling Fund and accepted by the Selling Acquired Fund, no litigation, administrative proceeding or investigation of by 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, 2011 are 2007, 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 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, 2011the 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 '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 All federal and other tax returns and reports of the Closing Date, Acquiring Fund required by law to be filed prior to the date hereof have been filed and all federal and other tax returns and reports of the Acquiring Fund required by law then to be filed by such from and after the date shall have been hereof to the Closing Date will be 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 '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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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-assessableassessable and no shareholder of the Federated Trust has any preemptive right to subscription or purchase in respect thereof.
(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 herein shall not and complete in all material respects and complies in all material respects with federal securities and other laws and regulations applicable thereto.
(n) The Schedule 14C Information Statement (only insofar as it relates to the Acquiring Fund) does 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, in light of the circumstances under which such statements thereinwere made, not misleading and shall comply in all material respects with the federal securities laws and other applicable laws and regulations.
m) From the effective date of the Registration Statement (as defined in paragraph 5.7), through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the Federated Trust with respect to the Acquiring Fund for use in the Proxy Materials (as defined in paragraph 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.
(n) The Acquiring Fund has elected to be taxed 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 will continue to qualify as a RIC under the Code for its current taxable year and has computed its federal income tax under Section 852 of the Code.
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 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.
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.. ARTICLE*I COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Federated Equity Funds)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Fund EquiTrust Variable Fund, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a separate investment series of a business trust, duly organized, validly existing and in good standing under the Trustlaws 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, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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 Trust’s 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 the Selling Fund 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 31, 2011 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, 2011, 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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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 Schedule 14C Information 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 Insurance Series)
REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Fund hereby represents and warrants to the Selling Fund Acquired Fund, as follows, which representations and warranties shall be true and correct on the date hereof and agrees to confirm the continuing accuracy and completeness of the following at the Closing Date:
(a) The Acquiring Fund is a separate investment series of the Trust, a statutory trust, duly organized, validly existing, and in good standing under the laws of the State of Delaware.
(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 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, as of the date of the Schedule 14C Information Statement, 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 will 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 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 the Selling Fund 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 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 Acquiring Fund’s audited financial statements statement of the Acquiring Fund at December assets and liabilities as of September 30, 2011, and unaudited statement of assets and liabilities as of March 31, 2011 are 2012, were prepared in accordance with U.S. generally accepted accounting principles (except as set forth in the notes thereto), consistently appliedapplied throughout the periods then ended, and such statements (copies of which have been furnished to the Selling Fund) fairly reflect present the financial condition and results of operations of the Acquiring Fund as of such datethe respective dates thereof and for the respective periods covered thereby subject, and there are no known contingent liabilities in the case of the Acquiring Fund as of such date not disclosed thereinunaudited financial statements, to normal year-end audit adjustments.
(g) Since December March 31, 20112012, 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 Acquired 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 All issued and other tax returns and reports outstanding shares 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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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 shares of the Acquiring Fund SharesFund, nor is there outstanding any security convertible into any shares of the Acquiring Fund.
(i) All federal and other tax returns and reports of the Acquiring Fund Sharesrequired by law to have been filed (giving effect to any extensions) have been timely filed and are or were true, correct and complete in all material respects as of the time of their filing, and all taxes of the Acquiring Fund which are due and payable (whether or not shown on any tax records) shall have been timely paid in full or provision has been made for payment thereof. The Acquiring Fund is not liable for taxes of any person other than itself and is not a party to or otherwise bound by any tax sharing, allocation, assumption or indemnification agreement or arrangement. All of the Acquiring Fund’s tax liabilities have been adequately provided for on its books and records in respect of all periods ending on or before the date of such books and records. The Acquiring Fund has not had any tax deficiency or liability asserted against it that has not been previously disclosed in writing to the Acquired Fund or question with respect thereto raised, and no dispute, audit, investigation, proceeding or claim concerning any tax liabilities of the Acquiring Fund has been raised by the Internal Revenue Service or by any other governmental authority in writing, and to the Acquiring Fund’s knowledge, no such dispute, audit, investigation, proceeding or claim is pending, being conducted or claimed.
(j) The Acquiring Fund has elected to be, and has met the requirements of Subchapter M of the Code for qualification and treatment as, a “regulated investment company” within the meaning of Sections 851 et seq. of the Code in respect of each taxable year since the commencement of operations, and shall continue to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable for and is not now liable for any material income or excise tax pursuant to Section 852 or 4982 of the Code. The Acquiring Fund has no other material tax liability (foreign, state, or local), except as accrued on the Acquiring Fund’s books and records. The Acquiring Fund has no earnings and profits accumulated with respect to any taxable year in which the provisions of Subchapter M of the Code did not apply.
(k) The Acquiring Fund is not under the jurisdiction of a court in a “Title 11 or similar case” (within the meaning of Section 368(a)(3)(A) of the Code).
(l) Except as otherwise disclosed in writing to the Acquired Fund, the Acquiring Fund is in compliance in all material respects with the Code and applicable regulations promulgated under the Code pertaining to the reporting of dividends and other distributions on and redemptions of its shares and has withheld in respect of dividends and other distributions and redemption proceeds and paid to the proper taxing authority all taxes required to be withheld, and is not liable for any penalties which could be imposed thereunder.
(m) The Acquiring Fund has not granted any waiver, extension or comparable consent regarding the application of the statute of limitations with respect to any taxes or tax return that is outstanding, nor has any request for such waiver or consent been made.
(n) The Acquiring Fund does not own any “converted property” (as that term is defined in Treasury Regulation Section 1.337(d)-7(a)(1)) that is subject to the rules of Section 1374 of the Code as a consequence of the application of Section 337(d)(1) of the Code and Treasury Regulations thereunder.
(o) The Acquiring Fund has not previously been a party to a reorganization under Section 368(a) of the Code.
(p) The Acquiring Fund has not received written notification from any tax authority that asserts a position contrary to any of the above representations in (i) through (o).
(q) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Fund, 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.
(lr) The Acquiring Fund Shares to be issued and delivered to the Selling Acquired Fund, for the account of the Selling Acquired 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.
(ms) 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 thereunder applicable thereto.
(nt) The Schedule 14C Prospectus/Information Statement (only insofar as it relates to included in the Acquiring Fund) Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.
(ou) 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 (Touchstone Funds Group Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Fund EquiTrust Fund, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a separate investment series of a business trust, duly organized, validly existing and in good standing under the Trustlaws 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, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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 Trust’s 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 the Selling Fund 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, 2011 are 2010 and for the fiscal year then ended have been prepared in accordance with United States generally accepted accounting principles consistently appliedprinciples, and such statements (copies of which have been furnished to the Selling FundAcquired 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 thereinin such statements.
(g) Since December The unaudited financial statements of the Acquired Fund as of January 31, 2011, and for the six months then ended have been prepared in accordance with United States generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there has are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements.
h) Since the date of the financial statements referred to in paragraph (g) above, there have been any no material adverse change changes in the Acquiring Fund’s 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 federal and other taxes shown due on said such returns and reports shall have been paid paid, or provision shall have been made for the payment thereof. To the best of the Acquiring Fund’s 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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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-assessablenon- assessable 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 Schedule 14C Information 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 qualified and elected to be treated as a RIC under the Code as of and since its first taxable year of operations; 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.. ARTICLE V
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Federated Investment Series Funds Inc)
REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Fund represents and warrants to the Selling Trust and the Transferring Fund as follows:
(a) The Acquiring Fund is a separate investment series of Dxxxxx Trust, a statutory trust duly organized, validly existing and in good standing under the Trustlaws of the State of Delaware.
(b) The Acquiring Fund is a separate investment series of the Dxxxxx 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 Act, is in full force and effect.
(c) The prospectus and statement of additional information, as of the date of the Schedule 14C Information StatementClosing Date, 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 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 any provision of Dxxxxx Trust’s 's Agreement and 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 the Selling Transferring Fund and accepted by the Selling Transferring 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 Dxxxxx Trust 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 Dxxxxx Trust 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, 2011 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, 2011, 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 date, if any, 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 's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(ig) For each fiscal year of its The Acquiring Fund has not commenced operation; however, the Selling Acquiring Fund has met intends to meet the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company for the fiscal year in which the Reorganization occurs and has distributed intends to continue to meet all the requirements for that qualification and intends to distribute in each such fiscal year all net investment company taxable income and realized net capital gains.
(jh) 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.
(ki) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring FundDxxxxx Trust, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund Dxxxxx 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.
(lj) The Acquiring Fund Shares to be issued and delivered to the Selling Transferring Fund, for the account of the Selling Transferring 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.
(mk) The information furnished by the Acquiring Fund Dxxxxx Trust 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.
(nl) The Schedule 14C Information Acquiring Fund has provided the Transferring Fund with information reasonably necessary for the preparation of a Registration/Proxy Statement in compliance with the 1933 and 1934 Acts in connection with the meeting of the shareholders of the Transferring Fund to approve this Agreement and the transactions contemplated hereby. The Registration/Proxy 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.
(om) 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.
(n) Dxxxxx Trust has filed a post-effective amendment to its registration statement on Form N-1 A, with the Commission, for the purpose of registering the Acquiring Fund as a series of Dxxxxx Trust. The post-effective amendment will be effective on or before the Closing Date.
(o) The Acquiring Fund Board of Trustees will, for a period of no less than 3 years following the closing of the Reorganization, be composed of at least 75% of persons who are not interested persons of Sherwood Forest Capital Management, LLC or Dxxxxx & Associates Investment Counsel, Inc.
(p) The Acquiring Fund Board of Trustees will assure that the Acquiring Fund is not subject to an unfair burden as defined under Section 15(f) of the 1940 Act related to the Reorganization.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Dunham Funds)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Fund EquiTrust Variable Fund, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a separate investment series of a business trust, duly organized, validly existing and in good standing under the Trustlaws 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, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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 result, in violation of the Trust’s 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 the Selling Fund 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 31, 2011 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, 2011, 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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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 Schedule 14C Information 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 Insurance Series)
REPRESENTATIONS OF THE ACQUIRING FUND. The Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Acquired 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 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, as of the date of the Schedule 14C Information Prospectus/Proxy Statement, 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 will 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 thereinstatements, 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 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 the Selling Acquired Fund 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 the conduct of its business or the ability of the Acquiring Fund to carry out the transactions contemplated by this AgreementReorganization. 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 Reorganization or the transactions contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December 31dated June 30, 2011 2014 are in accordance with generally accepted accounting principles consistently applied, 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 not disclosed therein.
(g) Since The financial statements of the Acquiring Fund as of December 31, 20112014 and for the period then ended are in accordance with generally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the 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 not disclosed therein.
(h) Since the date of the financial statement referred to in subsection (g) above, 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 Acquired Fund. For the purposes of this subparagraph (gh), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(hi) At the Closing DateAll 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 complete and correct in all material respects. All federal, and all federal state, local and other taxes of the Acquiring Fund required to be paid (whether or not shown as due on said returns and reports shall any such return or report) have been paid or provision shall have been made for the payment thereofthereof and any such unpaid taxes as of the date of the financial statements referred to in subsection (f) above are properly reflected on such financial statements. To the best of the Acquiring Fund’s knowledge, no such return tax authority is currently under auditauditing or preparing to audit the Acquiring Fund, and no assessment or deficiency for taxes, interest, additions to tax or penalties has been asserted with respect to such returnsagainst the Acquiring Fund.
(ij) For each fiscal taxable year of its operation, the Selling Acquiring Fund has been treated as a corporation for federal income tax purposes, has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in elected to be treated as such, and has been eligible to compute and has computed its federal income tax under Section 852 of the Code. In addition, the Acquiring Fund will satisfy each such of the foregoing with respect to its taxable year all net investment income and realized capital gainsthat includes the Closing Date.
(jk) All issued and outstanding Acquiring Fund Shares shares are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and non-assessableassessable by the Acquiring Fund. The Acquiring Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any Acquiring Fund Sharesshares, nor is there outstanding any security convertible into any Acquiring Fund Sharesshares.
(kl) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring FundTrust’s Board of Trustees and, and subject to the approval of the Acquired Fund Shareholders, this Agreement constitutes a valid and legally 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.
(lm) The Acquiring Fund Shares to be issued and delivered to the Selling Acquired Fund, for the account of the Selling Acquired 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-assessableassessable by the Acquiring Fund.
(mn) 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 Reorganization is accurate and complete in all material respects and complies in all material respects with applicable federal securities and other laws and regulations applicable theretoregulations.
(no) The Schedule 14C Information 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 thereinstatements, in light of the circumstances under which such statements were made, not misleading.
(op) 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 (Touchstone Strategic Trust)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Fund EquiTrust Fund, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a separate investment series of a business trust, duly organized, validly existing and in good standing under the Trustlaws 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, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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 Trust’s 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 the Selling Fund 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, 2011 are 2010 and for the fiscal year then ended have been prepared in accordance with United States generally accepted accounting principles consistently appliedprinciples, and such statements (copies of which have been furnished to the Selling FundAcquired 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 thereinin such statements.
(g) Since December The unaudited financial statements of the Acquired Fund as of January 31, 2011, and for the six months then ended have been prepared in accordance with United States generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there has are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements.
h) Since the date of the financial statements referred to in paragraph (g) above, there have been any no material adverse change changes in the Acquiring Fund’s 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 federal and other taxes shown due on said such returns and reports shall have been paid paid, or provision shall have been made for the payment thereof. To the best of the Acquiring Fund’s 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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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-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 Schedule 14C Information 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 qualified and elected to be treated as a RIC under the Code as of and since its first taxable year of operations; 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.. ARTICLE V
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Federated Total Return Series Inc)
REPRESENTATIONS OF THE ACQUIRING FUND. The MTB Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Fund FBR Trust, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a legally designated, separate investment series of a business trust, duly organized, validly existing and in good standing under the Trustlaws of the State of Delaware.
(b) The Acquiring Fund is a separate investment series of the Trust, which MTB 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 MTB Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The prospectus current Prospectus and statement Statement of additional information, as of the date of the Schedule 14C Additional Information Statement, 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 thereunder, and will 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 MTB Trust’s Declaration of 's 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 the Selling Fund 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 could materially and adversely affects affect its business or its ability to consummate the transactions transaction contemplated herein.
(f) The audited financial statements of the Acquiring Fund at December 31, 2011 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, 2011, 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 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 . All federal and other taxes shown to be 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 's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(ig) For each fiscal year of its operation, the Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(j) All Any issued and outstanding Acquiring Fund Shares are, and at prior to the Closing Date will be, represent the initial capital and 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.
(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 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, 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.
(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 and other laws and regulations applicable theretoregulations.
(nk) The Schedule 14C Information 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 MTB 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.
(ol) The Acquiring Fund will qualify as a RIC under the Code for its first taxable year ending after 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 MTB Trust, for itself and on behalf of the Acquiring Fund, or the performance of the Agreement by the MTB 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 Delaware 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.
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 (MTB Group of Funds)
REPRESENTATIONS OF THE ACQUIRING FUND. The MTB Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Fund FBR Trust, on behalf of the Acquired Fund, as follows:
(a) I. The Acquiring Fund is a legally designated, separate investment series of a business trust, duly organized, validly existing and in good standing under the Trustlaws of the State of Delaware.
(b) II. The Acquiring Fund is a separate investment series of the Trust, which MTB 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 MTB Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) III. The prospectus current Prospectus and statement Statement of additional information, as of the date of the Schedule 14C Additional Information Statement, 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 thereunder, and will 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) IV. The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not resultnot, result in a violation of the MTB Trust’s Declaration of 's 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) V. Except as otherwise disclosed in writing to the Selling Fund 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 could materially and adversely affects affect its business or its ability to consummate the transactions transaction contemplated herein.
(f) VI. The audited financial statements of the Acquiring Fund at December 31as of April 30, 2011 are 2005 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) FBR Trust on behalf of the 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 thereinin such statements.
VII. The unaudited financial statements of the Acquiring Fund as of October 31, 2005, and for the six months then ended have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the FBR Trust on behalf of the Acquired Fund) fairly reflect the financial condition of the Acquiring Fund as of October 31, 2005, and there are no know contingent liabilities of the Acquiring Fund as of such date that are not disclosed in such statements.
VIII. Since the date of the financial statements referred to in paragraph (g) Since December 31, 2011above, 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 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.
(h) At the Closing Date, all IX. 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 . All federal and other taxes shown to be 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 '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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(j) X. 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) XI. 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 XII. 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) XIII. 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 Schedule 14C Information XIV. 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 MTB 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) XV. 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.
XVI. 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 MTB Trust, for itself and on behalf of the Acquiring Fund, or the performance of the Agreement by the MTB 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 Delaware 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.
XVII. 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 (MTB Group of Funds)
REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Fund Fund, represents and warrants to the Selling Fund Trust, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a separate investment series of the Trust.
(b) The Acquiring Fund is a separate investment series of the Trust, which Corporation 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 Corporation's registration with the Commission as an investment company under the 1940 Act is in full force and effect, and the Corporation is duly incorporated, validly existing in good standing under the laws of the State of Maryland.
(cb) The current prospectus and statement of additional information, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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.
(dc) The Acquiring Fund is not, and the execution, delivery and performance of this Agreement will not resultnot, result in a violation of the Trust’s Declaration Corporation's Articles of Trust Incorporation 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.
(ed) Except as otherwise disclosed in writing to the Selling Fund 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.
(fe) The audited financial statements of the Acquiring Fund at December as of March 31, 2011 are 2007 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 FundAcquired 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 thereinin such statements.
(gf) Since December 31, 2011the date of the financial statements referred to in paragraph (e) 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 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 (ge), a decline in the net asset value of the Acquiring Fund shall not constitute a material adverse change.
(hg) 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 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 '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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(jh) 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.
(ki) 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.
(lj) 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.
(mk) 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.
(nl) The Schedule 14C Information From the effective date of the Registration Statement (only insofar as it relates to 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 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.
(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 Maryland 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 Maryland 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.. ARTICLE*V
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Federated Municipal Securities Fund Inc)
REPRESENTATIONS OF THE ACQUIRING FUND. The Federated Trust, on behalf of the Acquiring Fund Fund, represents and warrants to the Selling Fund EquiTrust Fund, on behalf of the Acquired Fund, as follows:
(a) The Acquiring Fund is a separate investment series of a business trust, duly organized, validly existing and in good standing under the Trustlaws 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, as of the date of the Schedule 14C Information Statement, 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 thereunder, and will 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 '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 the Selling Fund 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, 2011 are 2010 and for the fiscal year then ended have been prepared in accordance with United States generally accepted accounting principles consistently appliedprinciples, and such statements (copies of which have been furnished to the Selling FundAcquired 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 thereinin such statements.
(g) Since December The unaudited financial statements of the Acquired Fund as of January 31, 2011, and for the six months then ended have been prepared in accordance with United States generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Acquired Fund as of such date, and there has are no known contingent liabilities of the Acquired Fund as of such date that are not disclosed in such statements.
h) Since the date of the financial statements referred to in paragraph (g) above, there have been 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 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 federal and other taxes shown due on said such returns and reports shall have been paid paid, or provision shall have been made for the payment thereof. To the best of the Acquiring Fund’s '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 Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(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 Schedule 14C Information 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 qualified and elected to be treated as a RIC under the Code as of and since its first taxable year of operations; 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: Agreement and Plan of Reorganization (Federated Equity Funds)
