REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, as follows: (a) The Selling Fund is a legally designated, separate series of a statutory trust that is duly organized, validly existing and in good standing under the laws of the State of Delaware. (b) The Selling Trust is registered as an open-end management investment company under the 1940 Act, and the Selling Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect. (c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act and the rules and regulations thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) The Selling Fund is not in violation of, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not result in the violation of, any provision of the Selling Trust's trust instrument or bylaws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound. (e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof. (f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets that, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein. (g) The financial statements of the Selling Fund as of September 30, 2002 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles and have been audited by independent auditors, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements. (h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change. (i) All federal and other tax returns and reports of the Selling Fund required by law to be filed have been filed, and all federal and other taxes shown due on such returns and reports have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns. (j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and nonassessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Janus Adviser Series), Agreement and Plan of Reorganization (Janus Investment Fund)
REPRESENTATIONS OF THE SELLING FUND. The Selling TrustCompany, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Company, a statutory trust that is corporation duly organized, validly existing existing, and in good standing under the laws of the State of DelawareMaryland.
(b) The Selling Trust Fund is a separate investment series of the Company, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act"), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling TrustCompany's trust instrument Articles of Incorporation or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The unaudited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2002, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the Selling Fund has met the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust), Agreement and Plan of Reorganization (Touchstone Variable Series Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory trust that is duly organized, validly existing existing, and in good standing under the laws of the State of Delaware.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the “Commission”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act Act”), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "“1933 Act") ”), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument ’s Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared 2012 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2012, there have has not been no any material adverse changes change in the Selling 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 Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 33.3. The Selling Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Selling Fund shares, nor is there outstanding any security convertible into any of the Selling Fund shares.
(l) At the Closing Date, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund.
(m) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund and, subject to approval by the Selling Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The information furnished by the Selling 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.
(o) The Selling Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Prospectus/Information Statement, in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act. The Prospectus/Information Statement (other than information therein that relates to the Acquiring Fund and any other fund described therein other than the Selling Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.
Appears in 2 contracts
Samples: Reorganization Agreement (Huntington Funds), Reorganization Agreement (Huntington Funds)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory trust that is duly organized, validly existing existing, and in good standing under the laws of the State of Delaware.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the “Commission”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act Act”), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "“1933 Act") ”), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument ’s Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared 2011 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2011, there have has not been no any material adverse changes change in the Selling 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 Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 33.3. The Selling Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Selling Fund shares, nor is there outstanding any security convertible into any of the Selling Fund shares.
(l) At the Closing Date, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund.
(m) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund and, subject to approval by the Selling Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The information furnished by the Selling 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.
(o) The Selling Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Prospectus/Information Statement, in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act. The Prospectus/Information Statement (other than information therein that relates to the Acquiring Fund and any other fund described therein other than the Selling Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.
Appears in 2 contracts
Samples: Reorganization Agreement (Huntington Funds), Reorganization Agreement (Huntington Funds)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf As of the date indicated below or, if no such date is indicated, as of both the date hereof and the Closing Date, the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate series of the Selling Trust, a statutory business trust that is duly organized, validly existing existing, and in good standing under the laws of The Commonwealth of Massachusetts, and has the State power to own all of Delawareits properties and assets and to carry on its business as presently conducted, and to carry out its obligations under this Agreement.
(b) Neither the Selling Fund nor the Selling Trust is required to qualify to do business in any jurisdiction in which it is not so qualified and where failure to do so would subject it to any material liability or disability, and each of the Selling Fund and the Selling Trust has all necessary federal, state, and local authorizations to own all of its properties and assets and to carry on its business as currently being conducted.
(c) The Selling Trust is registered as an open-end management investment company with the Securities and Exchange Commission (the “Commission”) under the 1940 Act, and the Selling Trust's such registration with the Commission as an investment company under the 1940 Act has not been revoked or rescinded and is in full force and effect, and the Selling Fund is a separate series thereof duly designated in accordance with the applicable provisions of the Amended and Restated Agreement and Declaration of Trust of MassMutual Select Funds (the “MassMutual Select Funds Declaration”) and the 1940 Act.
(cd) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "“1933 Act") ”), and the 1940 Act Act, and the rules and regulations thereunder of the Commission thereunder, and do not and will not include any untrue statement of a material fact or omit to state any material fact relating to the Selling Fund required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(de) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, in any material respect of any provision of the Selling Trust's trust instrument or bylaws MassMutual Select Funds Declaration or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(ef) The Selling Fund has no material contracts or other commitments (other than this AgreementAgreement and such other contracts as may be entered into in the ordinary course of business) that if terminated may result in material liability to the Acquiring Fund or under which (whether or not terminated) any material payments for periods subsequent to the Closing Date will be terminated with liability to it before due from the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.Selling Fund;
(fg) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no material litigation, administrative proceeding, other proceeding or investigation of or before any court or governmental body is presently pending or or, to its the knowledge of the Selling Fund, threatened against the Selling Fund or any of its properties or assets thator any person whom the Selling Fund may be obligated to directly or indirectly indemnify in connection with such litigation, proceedings or investigation, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Neither the Selling Fund nor the Selling Trust knows of no any facts that might form the basis for the institution of such proceedings and the Selling Fund is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(gh) The financial statements of assets and liabilities, statements of operations, statements of changes in net assets and schedules of portfolio investments (indicating their market values) of the Selling Fund Fund, as of September 30, 2002 the last day of and for the its most recently completed fiscal year then ended have been prepared in accordance with generally accepted accounting principles and have been year, audited by Deloitte & Touche LLP, independent auditorsregistered public accounting firm to the Selling Fund, and such statements (an unaudited statement of assets and liabilities, statement of operations, statement of changes in net assets and schedule of investments for any subsequent semiannual period following the most recently completed fiscal year, copies of which have been furnished to the Acquiring Fund) , fairly reflect the financial condition and results of the Selling Fund as of September 30, 2002, and there are no known contingent liabilities operations of the Selling Fund as of such date that are and for the period then ended in accordance with accounting principles generally accepted in the United States consistently applied, and the Selling Fund has no known liabilities of a material amount, contingent or otherwise, other than those shown on the statements of assets and liabilities referred to above or those incurred in the ordinary course of its business since the last day of the Selling Fund’s most recently completed fiscal year. Prior to the Closing Date, the Selling Fund will endeavor to quantify and reflect on its statements of assets and liabilities all of its material known liabilities and will advise the Acquiring Fund of all material liabilities, contingent or otherwise, incurred by it since the last day of the Selling Fund’s most recently completed fiscal year, whether or not disclosed incurred in such statementsthe ordinary course of business.
(hi) Since the date last day of the financial statements referred to in paragraph (g) aboveSelling Fund’s most recently completed fiscal year, there have has not, to the knowledge of the Selling Fund, been no any material adverse changes change in the Selling 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 Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurredindebtedness, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (hi), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All federal , and other tax returns and reports changes in portfolio securities, changes in the market value of the Selling Fund required by law portfolio securities or net redemptions shall be deemed to be filed have been filed, and all federal and other taxes shown due on such returns and reports have been paid, or provision shall have been made for in the payment thereof. To the best ordinary course of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returnsbusiness.
(j) All issued As of both the Valuation Date and outstanding shares the Closing Date, the Selling Fund will have full right, power and authority to sell, assign, transfer and deliver the Investments (as defined below) and any other assets and liabilities of the Selling Fund are duly and validly issued and outstanding, fully paid and nonassessable by to be transferred to the Selling FundAcquiring Fund pursuant to this Agreement. All of the issued and outstanding shares of the Selling Fund will, at the time of At the Closing Date, be held subject only to the delivery of the Investments and any such other assets and liabilities as contemplated by this Agreement, the persons Acquiring Fund will acquire the Investments and any such other assets subject to no encumbrances, liens or security interests in the amounts set forth in the records favor of any third party creditor of the Selling Fund's , and without any restrictions upon the transfer agent thereof. As used in this Agreement, the term “Investments” shall mean the Selling Fund’s investments shown on the schedule of its portfolio investments as provided of September 30, 2023 (and March 31, 2024, as applicable), referred to in paragraph 3Section 4.1(h) hereof, as supplemented with such changes as the Selling Fund shall make after September 30, 2023 (and March 31, 2024, as applicable), which changes shall be disclosed to the Acquiring Fund in an updated schedule of investments, and changes resulting from stock dividends, stock split-ups, mergers and similar corporate actions through the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Massmutual Select Funds), Agreement and Plan of Reorganization (Massmutual Premier Funds)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of a statutory Massachusetts business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts;
(b) The Selling Trust Fund is a separate investment series of a registered investment company classified as an a management company of the open-end management investment company under the 1940 Act, type and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act") is in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not not, result in the a violation of, of any provision of the Selling FFB Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.;
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September 30at February 28, 2002 and for the fiscal year then ended 1995 have been prepared audited by KPMG Peat Marwick LLP, certified public accountants, and are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveFebruary 28, 1995 there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal At the Closing Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(j) 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;
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust), Reorganization Agreement (Evergreen Money Market Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling TrustCompany, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Company, a statutory trust that is corporation duly organized, validly existing existing, and in good standing under the laws of the State of DelawareMaryland.
(b) The Selling Trust Fund is a separate investment series of the Company, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act"), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling TrustCompany's trust instrument Articles of Incorporation or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The unaudited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2002, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the Selling Fund has met the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code") for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust), Agreement and Plan of Reorganization (Touchstone Variable Series Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory business trust that is duly organized, validly existing existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act"), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2002, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the Selling Fund has met the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust), Agreement and Plan of Reorganization (Touchstone Variable Series Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling TrustCompany, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Company, a statutory trust that is corporation duly organized, validly existing existing, and in good standing under the laws of the State of DelawareMaryland.
(b) The Selling Trust Fund is a separate investment series of the Company, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act"), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling TrustCompany's trust instrument Articles of Incorporation or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The unaudited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2002, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the Selling Fund has met the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), for qualification and treatment as a regulated investment company, has distributed in each such year all net investment company taxable income (computed without regard to any deduction for dividends paid) and net realized capital gains (after reduction for any capital loss carryforward) and has met the diversification requirements of Section 817(h) of the Code and the regulations thereunder.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Touchstone Variable Series Trust), Agreement and Plan of Reorganization (Touchstone Variable Series Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of a statutory Massachusetts business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts;
(b) The Selling Trust Fund is a separate investment series of a registered investment company classified as an a management company of the open-end management investment company under the 1940 Act, type and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act") is in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not not, result in the a violation of, of any provision of the Selling FFB Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.;
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September 30at February 28, 2002 and for the fiscal year then ended 1995 have been prepared audited by KPMG Peat Marwick LLP, certified public accountants, and are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveFebruary 28, 1995 there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal At the Closing Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(j) 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; (k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust), Agreement and Plan of Reorganization (Evergreen Municipal Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory trust that is duly organized, validly existing existing, and in good standing under the laws of the State of Delaware.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the “Commission”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act Act”), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "“1933 Act") ”), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument ’s Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared 2013 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2013, there have has not been no any material adverse changes change in the Selling 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 Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 33.3. The Selling Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Selling Fund shares, nor is there outstanding any security convertible into any of the Selling Fund shares.
(l) At the Closing Date, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund.
(m) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund and, subject to approval by the Selling Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The information furnished by the Selling 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.
(o) The Selling Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Prospectus/Information Statement, in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act. The Prospectus/Information Statement (other than information therein that relates to the Acquiring Fund and any other fund described therein other than the Selling Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.
Appears in 2 contracts
Samples: Reorganization Agreement (Huntington Funds), Agreement and Plan of Reorganization (Huntington Funds)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of a statutory Massachusetts business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts;
(b) The Selling Trust Fund is a separate investment series of a registered investment company classified as an a management company of the open-end management investment company under the 1940 Act, type and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act") is in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not not, result in the a violation of, of any provision of the Selling FFB Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.;
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September at June 30, 2002 and for the fiscal year then ended have been prepared 1995 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveJune 30, 1995 there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal At the Closing Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(j) 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; (k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust), Agreement and Plan of Reorganization (Evergreen Investment Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling FirstMerit Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Federated Trust, on behalf of the Acquiring Fund, as follows:
(a) The Selling Fund is a legally designated, separate series of a statutory trust that is voluntary association duly organized, validly existing existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) The Selling FirstMerit Trust is registered as an open-end management investment company under the 1940 Act, and the Selling FirstMerit Trust's registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act Act, and the rules and regulations thereunder thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not not, result in the violation of, of any provision of the Selling FirstMerit Trust's Declaration of trust instrument or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein.
(g) The financial statements of the Selling Fund as of September November 30, 2002 2001 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles and have been audited by independent auditorsprinciples, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September November 30, 2002, 2001 and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.
(h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All federal and other tax returns and reports of the Selling Fund required by law to be filed filed, have been filed, and all federal and other taxes shown due on such returns and reports report have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Federated Equity Funds), Agreement and Plan of Reorganization (Money Market Obligations Trust /New/)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund Trust is a legally designated, separate series of a statutory trust that is duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The Selling Fund is a separate series of the Selling Trust duly authorized in accordance with the applicable provisions of the Selling Trust’s Agreement and Declaration of Trust and Bylaws.
(c) The Selling Trust is registered as an open-end management investment company under the 1940 Act, and the Selling Trust's such registration with the Commission as an investment company under the 1940 Act has not been revoked or rescinded and is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act and the rules and regulations thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument ’s Agreement and Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Except as otherwise disclosed in writing to and accepted in writing by the Acquiring Fund, the Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it the Selling Fund before the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no No litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein.
(g) The financial statements of the Selling Fund as of September 30December 31, 2002 2008, and for the fiscal year then ended ended, have been prepared in accordance with generally accepted accounting principles and have been audited by independent auditors, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30December 31, 20022008, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.
(h) Since the date dates of the financial statements referred to in paragraph subsection (g) above, there have been no material adverse changes in the Selling Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by ) and there are no known contingent liabilities of the Selling Fund of indebtedness maturing more than one year from the date arising after such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Funddate. For the purposes of this paragraph subsection (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All federal federal, state, local and other tax returns and reports of the Selling Fund required by law to be filed by it (taking into account permitted extensions for filing) have been filedtimely filed and are correct in all material respects. All federal, and all federal state, local and other taxes required to be paid (whether or not shown due on any such returns and reports return or report) have been paid, or provision shall have been made for the payment thereofthereof and any such unpaid taxes are properly reflected on the financial statements referred to in subsection (h) above. To the best of the Selling Fund's ’s knowledge, no such return tax authority is currently under auditauditing or preparing to audit the Selling Fund, and no assessment for taxes, interest, additions to tax, or penalties has been asserted with respect to such returnsagainst the Selling Fund.
(j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing DateClosing, be held by the persons and in the amounts set forth in the records of the Selling Fund's ’s transfer agent as provided in paragraph 3Section 3.3. The Selling Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any shares of the Selling Fund, and has no outstanding securities convertible into shares of the Selling Fund.
(k) At the time of the Closing, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to Section 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets, and the Acquiring Fund will acquire good and marketable title thereto.
(l) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund. Subject to approval by the Selling Fund shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(m) The information to be furnished by the Selling Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations.
(n) The current prospectus and statement of additional information of the Selling Fund conforms in all material respects to the applicable requirements of the Securities Act of 1933, as amended (the “1933 Act”), and the 1940 Act and the rules and regulations thereunder and does not include, with respect to the Selling Trust or the Selling Fund, any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(o) From the effective date of the Registration Statement (as 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 Selling Fund for use in the Proxy Materials (as defined in Section 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.
(p) For each taxable year of its operations, the Selling Fund (i) has elected to qualify, and has qualified or will qualify (in the case of the taxable year the includes the Closing Date for that portion of such taxable year ending with the Closing Date or the Selling Fund’s liquidation), as a “regulated investment company” under the Code (a “RIC”), (ii) has been eligible to and has computed its federal income tax under Section 852 of the Code, and (iii) has been, and will be as of the Closing Date treated as a separate corporation for federal income tax purposes pursuant to Section 851(g) of the Code. The Selling Fund will qualify as a RIC as of the Closing Date and will have satisfied as of the close of its most recent prior quarter of its taxable year, the diversification requirements of Section 851(b)(3) of the Code without regard to the last sentence of Section 851(d) of the Code. The Selling Fund has not taken any action, caused any action to be taken or caused any action to fail to be taken which action or failure could cause the Selling Fund to fail to qualify as a RIC under the Code.
(q) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), the 1940 Act or Delaware state law, as applicable, for the execution of this Agreement by the Selling Trust on behalf of the Selling Fund, except for the effectiveness of the Registration Statement (as defined in Section 5.7) and the Post-Effective Amendment (as defined in Section 8.5) and the filing of any documents that may be required under Delaware state law and except for such other consents, approvals, authorizations and filings as have been made or received and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Selling Fund as described in Section 5.2.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Financial Investors Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of a statutory Massachusetts business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts;
(b) The Selling Trust Fund is a separate investment series of a registered investment company classified as an a management company of the open-end management investment company under the 1940 Act, type and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act") is in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not not, result in the a violation of, of any provision of the Selling FFB Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.;
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September 30at August 31, 2002 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles and 1994 have been audited by independent auditorsArthur Andersen LLP, certified public accountants, and are in accorxxxxx wxxx xxxxrally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveAugust 31, 1994 there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal At the Closing Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(j) 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; (k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Fund)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, as follows:
(a) The Selling Fund is a legally designated, separate series of a statutory business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) The Selling Trust is registered as an open-end management investment company under the 1940 Act, and the Selling Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act and the rules and regulations thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation of, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not result in the violation of, any provision of the Selling Trust's trust instrument or bylaws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets that, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein.
(g) The financial statements of the Selling Fund as of September 30, 2002 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles and have been audited by independent auditors, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.
(h) Since the date of the financial statements referred to in paragraph (g) above, there have been no material adverse changes in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All federal and other tax returns and reports of the Selling Fund required by law to be filed have been filed, and all federal and other taxes shown due on such returns and reports have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and nonassessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Janus Investment Fund)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory trust that is duly organized, validly existing existing, and in good standing under the laws of the State of Delaware.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the “Commission”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act Act”), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "“1933 Act") ”), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument ’s Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September at June 30, 2002 and for the fiscal year then ended have been prepared 2014 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveJune 30, 2014, there have has not been no any material adverse changes change in the Selling 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 Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 33.3. The Selling Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Selling Fund shares, nor is there outstanding any security convertible into any of the Selling Fund shares.
(l) At the Closing Date, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund.
(m) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund and, subject to approval by the Selling Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The information furnished by the Selling 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.
(o) The Selling Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Prospectus/Information Statement, in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act. The Prospectus/Information Statement (other than information therein that relates to the Acquiring Fund and any other fund described therein other than the Selling Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.
Appears in 1 contract
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of a statutory Massachusetts business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts;
(b) The Selling Trust Fund is a separate investment series of a registered investment company classified as an a management company of the open-end management investment company under the 1940 Act, type and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act") is in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not not, result in the a violation of, of any provision of the Selling FFB Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.;
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September 30at August 31, 2002 and for the fiscal year then ended 1994 have been prepared audited by Arthur Andersen LLP, certified public accountants, and are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistentxx xxxlxxx, and xxx such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveAugust 31, 1994 there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal At the Closing Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due o on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(j) 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;
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Growth & Income Fund /Ny/)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory business trust that is duly organized, validly existing existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act"), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The unaudited financial statements of the Selling Fund as of September at June 30, 2002 and for the fiscal year then ended have been prepared are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveJune 30, 2002, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Markman Multifund Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of a statutory Massachusetts business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts;
(b) The Selling Trust Fund is a separate investment series of a registered investment company classified as an a management company of the open-end management investment company under the 1940 Act, type and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act") is in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not not, result in the a violation of, of any provision of the Selling FFB Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.;
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September 30at August 31, 2002 and for the fiscal year then ended have been prepared in accordance with generally accepted accounting principles and 1994 have been audited by independent auditorsArthur Andersen LLP, certified public accountants, and are in accxxxxxxe xxxx xxnerally accepted accounting principles consistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveAugust 31, 1994 there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal At the Closing Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(j) 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; (k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Money Market Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling TrustCompany, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund Company is a legally designated, separate series of a statutory trust that is Wisconsin corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.Wisconsin (for purposes of this representation, "good standing" means the Company has filed its most recent Annual Report with the Wisconsin Department of Financial Institutions and has not filed Articles of Dissolution as of the date hereof and the Reorganization Date);
(b) The Selling Trust Fund is a series of the Company, and the Company is a registered as an open-end management investment company under the 1940 Act, classified as a management company of the open-end type and the Selling Trust's such registration with the Securities and Exchange Commission (the "Commission") is currently, and shall be as an investment company under of the 1940 Act is Reorganization Date, in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund Fund, including information incorporated by reference therein, conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended, (the "1933 Act") and the 1940 Act and the rules and regulations thereunder of the Commission thereunder, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling TrustCompany's trust instrument Articles of Incorporation or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound., except as set forth in Schedule 4.1(d);
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Reorganization Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.6.4;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund Fund, La Crosse Advisers, L.L.C., or North Central Trust Company, or any of its their properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings or investigations and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September 30at October 31, 2002 and for the fiscal year then ended 2001 have been prepared audited by Xxxxxx Xxxxxxxx LLP, certified public accountants. They are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such dates, and there are no known contingent liabilities of the Selling Fund as of such date that are dates not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveOctober 31, 2001, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal The Selling Fund has furnished to the Acquiring Fund a semi-annual report as of March 31, 2002, in accordance with generally accepted accounting principles consistently applied, and there are no known contingent liabilities of the Selling Fund as of such date not disclosed therein.
(j) As of the date hereof, and as of the Reorganization Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due on such returns and reports shall have been paidpaid so far as due, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(jk) Since its inception date, the Selling Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company;
(l) All issued and outstanding shares of the Selling Fund are are, and at the Reorganization Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund, except to the extent otherwise provided in Section 180.0622(2)(b) of the Wisconsin Statutes. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Reorganization Date, be held of record by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 33.4. The Selling Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any of the Selling Fund shares, nor does it have outstanding any security convertible into any of the Selling Fund shares;
(m) At the Reorganization Date, the Company will have good and marketable title to the Selling Fund's assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and, subject to shareholder approval, full right, power, and authority to sell, assign, transfer and deliver such assets hereunder, and upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto;
(n) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Company and the Selling Fund and, subject to approval by the Selling Fund's shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights and to general equity principles;
(o) The information to be furnished by the Selling Fund for use in no-action letters, applications for orders, registration statements, proxy materials and other documents which may be necessary in connection with the transactions contemplated hereby shall be accurate and complete in all material respects and shall comply in all material respects with Federal securities and other laws and regulations thereunder applicable thereto; and
(p) The proxy statement of the Selling Fund to be included in the Registration Statement referred to in paragraph 5.7, insofar as it relates to the Company or the Selling Fund, as of the effective date of the Registration Statement and the Reorganization Date, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.
(q) Except as set forth on a closing schedule and accepted by the Acquiring Fund, on the Valuation Date no assets of the Selling Fund have been valued using fair value principles, and all such assets have been valued using readily available market quotations within the meaning of the 0000 Xxx.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Mosaic Equity Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act"), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Acquiring Fund as of September 30at March 31, 2002 and for the fiscal year then ended have been prepared 2006 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Selling Fund) fairly reflect the financial condition of the Selling Acquiring Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Acquiring Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveMarch 31, 2006, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory trust that is duly organized, validly existing existing, and in good standing under the laws of the State of Delaware.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the “Commission”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act Act”), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "“1933 Act") ”), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument ’s Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared 2011 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2011, there have has not been no any material adverse changes change in the Selling 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 Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's ’s knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 33.3. The Selling Fund does not have outstanding any options, warrants, or other rights to subscribe for or purchase any of the Selling Fund shares, nor is there outstanding any security convertible into any of the Selling Fund shares.
(l) At the Closing Date, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2 and full right, power, and authority to sell, assign, transfer, and deliver such assets hereunder, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, including such restrictions as might arise under the 1933 Act, other than as disclosed to the Acquiring Fund and accepted by the Acquiring Fund.
(m) The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund and, subject to approval by the Selling Fund’s shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The information furnished by the Selling 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.
(o) The Selling Fund has provided the Acquiring Fund with information reasonably necessary for the preparation of a Schedule 14C Information Statement, in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the 1940 Act. The Schedule 14C Information Statement (other than information therein that relates to the Acquiring Fund and any other fund described therein other than the Selling Fund) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Huntington Funds)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of a statutory Massachusetts business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of Delaware.Massachusetts;
(b) The Selling Trust Fund is a separate investment series of a registered investment company classified as an a management company of the open-end management investment company under the 1940 Act, type and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act") is in full force and effect.;
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.;
(d) The Selling Fund is not in violation ofnot, and the execution, delivery and performance of this Agreement (subject to shareholder approval) will not not, result in the a violation of, of any provision of the Selling FFB Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease or other undertaking to which the Selling Fund is a party or by which it is bound.;
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that which will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.;
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring 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 Selling Fund or any of its properties or assets thatwhich, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that which materially and adversely affects its business or its ability to consummate the transactions contemplated herein.herein contemplated;
(g) The financial statements of the Selling Fund as of September 30at August 31, 2002 and for the fiscal year then ended 1994 have been prepared audited by Arthur Andersen LLP, certified public accountants, and are in accordance with generally accepted accounting principles and have been audited by independent auditorsxxxxxixxxx xxxsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.therein;
(h) Since the date of the financial statements referred to in paragraph (g) aboveAugust 31, 1994 there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.;
(i) All federal At the Closing Date, all Federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such dates shall have been filed, and all federal Federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To thereof and to the best of the Selling Fund's knowledge, knowledge no such return is currently under audit, audit and no assessment has been asserted with respect to such returns.;
(j) 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; (k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund (except that, under Massachusetts law, Selling Fund Shareholders could, under certain circumstances be held personally liable for obligations of the Selling Fund). All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Evergreen Investment Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund Trust is a legally designated, separate series of a Delaware statutory trust that is duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The Selling Fund is a separate series of the Selling Trust duly established in accordance with the applicable provisions of the Selling Trust’s Amended and Restated Agreement and Declaration of Trust, as amended.
(c) The Selling Trust is registered as an open-end management investment company under the 1940 Act, and the Selling Trust's such registration with the Commission as an investment company under the 1940 Act has not been revoked or rescinded and is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act and the rules and regulations thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Reorganization Agreement (subject to shareholder approval) will not result result, in the (1) a conflict with or a material violation of, of any provision of the Selling Trust's trust instrument ’s Amended and Restated Agreement and Declaration of Trust or bylaws the Bylaws (collectively, the “Selling Trust Governing Documents”) or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is boundbound .
(e) The Except for conversion fees, if any, that may be paid to the Selling Fund Transfer Agent (i.e., UMBFS) and the Selling Fund’s Custodian in connection with the Reorganization or as otherwise disclosed in writing to and accepted by the Acquiring Fund, the Selling Fund has no material contracts or other commitments (other than this Reorganization Agreement) that will be terminated with liability to it the Selling Fund before the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereofSection 1.3 of this Reorganization Agreement.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no No litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Reorganization Agreement. The Selling Fund knows of no facts that might form the a reasonable basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein.
(g) The annual financial statements of the Selling Fund as of September 30, 2002 and for the fiscal year then ended have been [________, 2018]1 were prepared in accordance with generally accepted accounting principles and have been were audited by an independent auditorsregistered public accounting firm, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30[________, 20022018], and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.
(h) The semi-annual financial statements of the Selling Fund for the fiscal period ended [________, 2018]2 were prepared in accordance with generally accepted accounting principles and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of [________, 2018], and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.
(i) Since the date of the financial statements referred to in paragraph subsection (g) above, there have been no material adverse changes in the Selling Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by ) and there are no known contingent liabilities of the Selling Fund of indebtedness maturing more than one year from the date arising after such indebtedness was incurreddate, except as otherwise disclosed in writing to and accepted by the Acquiring Fund. For the purposes of this paragraph subsection (hi), distributions of net investment income and net realized capital gains, changes in portfolio securities, a decline in the net asset value NAV of the Selling Fund Fund, or net redemptions shall not constitute a material adverse change. 1 June 30, 2018 is the FYE for the All Cap Fund and Small Cap Value Fund; October 31, 2018 is the FYE for the Emerging Markets Fund and the International Small Cap Fund. 2 December 31, 2018 for the All Cap Fund and Small Cap Value Fund; April 30, 2018 for the Emerging Markets Fund and the International Small Cap Fund.
(ij) All federal U.S. federal, state, local and other tax returns and reports of the Selling Fund required by law to be filed have been filedfiled by it (taking into account permitted extensions for filing) have been timely filed and are correct in all material respects. All U.S. federal, and all federal state, local and other taxes required to have been paid (whether shown due on any such returns and reports return or report) have been paid, or provision shall have been made for the payment thereofthereof and any such unpaid taxes are properly reflected on the financial statements referred to in subsection (g) above. To the best of the Selling Fund's ’s knowledge, no such return tax authority is currently under auditauditing or preparing to audit the Selling Fund, and no assessment for taxes, interest, additions to tax, or penalty has been asserted with respect to such returnsor threatened against the Selling Fund.
(jk) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstandingissued, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing DateClosing, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent Fund Transfer Agent as provided in paragraph 3Section 3.3 of this Reorganization Agreement. The Selling Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any shares of the Selling Fund and has no outstanding securities convertible into shares of the Selling Fund.
(l) At the time of the Closing, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to Section 1.2 of this Reorganization Agreement, and full right, power, and authority to sell, assign, transfer, and deliver such assets, and, upon delivery and payment for such assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no other restrictions on the full transfer thereof, including such restrictions as might arise under the Securities Act of 1933, as amended (“1933 Act”), except those restrictions as to which the Acquiring Fund has received notice and necessary documentation at or prior to the Closing.
(m) Other than approval by the Selling Fund Shareholders, the execution, delivery and performance of this Reorganization Agreement have been duly authorized by all necessary action on the part of the Selling Fund and the Selling Trust’s Board of Trustees. Subject to approval by the Selling Fund Shareholders, this Reorganization Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(n) The information to be furnished by the Selling Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with applicable U.S. federal securities and other laws and regulations.
(o) The current prospectus and statement of additional information of the Selling Fund conform, in all material respects, to the applicable requirements of the 1933 Act, and the 1940 Act and the rules and regulations thereunder and do not include, with respect to the Selling Trust or the Selling Fund, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading.
(p) From the effective date of the Registration Statement (as defined in Section 5.7 of this Reorganization Agreement), through the time of the meeting of the Selling Fund Shareholders (“Selling Fund Meeting”) and on the Closing Date, any written information furnished by the Selling Fund for use in the Proxy Materials (as defined in Section 5.7 of this Reorganization Agreement), 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.
(q) For each taxable year of its operations ending prior to the Closing Date, the Selling Fund (i) has had in effect an election to qualify as, and has qualified, as a “regulated investment company” under Subchapter M of the Code (“RIC”), (ii) has been eligible to and has computed its U.S. federal income tax under Section 852 of the Code, (iii) has been treated as a separate corporation for U.S. federal income tax purposes pursuant to Section 851(g) of the Code. The Selling Fund has no earnings and profits accumulated in any taxable year to which the provisions of Subchapter M of the Code (or the corresponding provision of prior law) did not apply to it. The Selling Fund meets all applicable requirements for qualification as a RIC as of the Closing Date. The Selling 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 that remains unpaid.
(r) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934, as amended (“1934 Act”), the 1940 Act or Delaware state law, as applicable, for the execution of this Reorganization Agreement by the Selling Trust on behalf of the Selling Fund, except for the effectiveness of the Form N-14 Registration Statement (as defined in Section 5.7 of this Reorganization Agreement) and the Acquiring Trust’s Post-Effective Amendment (as defined in Section 8.6 of this Reorganization Agreement) and the filing of any documents that may be required under Delaware state law and except for such other consents, approvals, authorizations and filings as have been made or received and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Reorganization Agreement and the transactions contemplated herein must be approved by the shareholders of the Selling Fund as described in Section 5.2 of this Reorganization Agreement.
(s) The Selling Trust’s Board of Trustees satisfies the fund governance standards defined in Rule 0-1(a)(7) under the 1940 Act as they currently apply to the Selling Trust.
Appears in 1 contract
Samples: Reorganization Agreement (Segall Bryant & Hamill Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of TIFT, a statutory trust that is duly organized, validly existing existing, and in good standing under the laws of the State of Delaware.
(b) The Selling Trust Fund is a separate investment series of TIFT, which is registered as an investment company classified as a management company of the open-end management type, and its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act, and the Selling Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling TrustTIFT's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at December 31, 2002 and for the fiscal year then ended have been prepared 2009 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveDecember 31, 2009, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) The Acquired Fund is not under the jurisdiction of a court in a "Title 11 or similar case" (within the meaning of Section 368(a)(3)(A) of the Code);
(l) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Touchstone Funds Group Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate series of a statutory trust that is Maryland corporation duly organized, validly existing and in good standing standing, existing under the laws of the State state of DelawareMaryland with power under the Selling Fund’s Articles of Incorporation, as amended or supplemented, to own all of its properties and assets and to carry on its business as it is presently being conducted and, subject to approval of shareholders of the Selling Fund, is duly authorized to carry out the Agreement.
(b) The Selling Trust Fund is qualified to do business in all jurisdictions in which it is required to be so qualified, except in jurisdictions in which the failure to so qualify would not have a material adverse effect on the Selling Fund. The Selling Fund has all material federal, state and local authorizations necessary to own all of the properties and assets and to carry on its business as now being conducted, except authorizations which the failure to so obtain would not have a material adverse effect on the Selling Fund.
(c) The Selling Fund is registered with the Commission as an opena closed-end management investment company under the 1940 Act, and the Selling Trust's such registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus effect and statement of additional information of the Selling Fund conform is in compliance in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and with the 1940 Act and the rules and regulations thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingthereunder.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result in result, in: (i) the violation of, of Maryland state law or of any provision of the Selling Trust's trust instrument Fund’s Articles of Incorporation or bylaws By-Laws, each as it may be supplemented or amended, or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound; (ii) the acceleration of any obligation or the imposition of any penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Selling Fund is a party or by which it is bound; or (iii) the creation or imposition of any lien, charge or encumbrance on any property or assets of the Selling Fund.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.
(f) Except as otherwise disclosed in writing to and accepted in writing by the Acquiring Fund, the Selling Fund has no material contracts or other commitments that will be terminated with liability to the Selling Fund before the Closing Date.
(f) No litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein.
(g) The financial statements of the Selling Fund as of September 30December 31, 2002 2009, and for the fiscal year then ended ended, have been prepared in accordance with generally accepted accounting principles consistently applied and have been audited by an independent auditorsregistered public accounting firm, and such statements, together with the unaudited financial statements of the Selling Fund for the six months ended June 30, 2010 (copies of each of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.
(h) Since the date of the financial statements referred to in paragraph subsection (g) above, there have been no material adverse changes in the Selling Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by ) and there are no known contingent liabilities of the Selling Fund of indebtedness maturing more than one year from the date arising after such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Funddate. For the purposes of this paragraph subsection (h), a decline in the net asset value of the Selling Fund due to declines in market values of securities in the Selling Fund’s portfolio shall not constitute a material adverse change.
(i) All federal U.S. federal, state, local and other tax returns and reports of the Selling Fund required by law to be filed by it (taking into account permitted extensions for filing) have been filedtimely filed and are correct in all material respects. All U.S. federal, and all federal state, local and other taxes required to be paid (whether or not shown due on any such returns and reports return or report) have been paid, or provision shall have been made for the payment thereofthereof and any such unpaid taxes are properly reflected on the financial statements referred to in subsection (h) above. To the best of the Selling Fund's ’s knowledge, no such return tax authority is currently under auditauditing or preparing to audit the Selling Fund, and no assessment for taxes, interest, additions to tax, or penalty has been asserted with respect to such returnsagainst the Selling Fund.
(j) All issued and outstanding shares of the Selling Fund have been offered and sold in compliance in all material respects with applicable registration requirements of the Securities Act of 1933, as amended (the “1933 Act”) and state securities laws, and are duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing DateClosing, be held by the persons and in the amounts set forth in the records of the Selling Fund's ’s transfer agent as provided in paragraph 3Section 3.3. The Selling Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any shares of the Selling Fund, and has no outstanding securities convertible into shares of the Selling Fund.
(k) At the time of the Closing, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to Section 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets, and the Acquiring Fund will acquire good and marketable title thereto.
(l) Other than approval by the Selling Fund Shareholders, the execution, delivery and performance of this Agreement will have been duly authorized prior to the Closing Date by all necessary action on the part of the Selling Fund, including determinations required by Rule 17a-8 under the 1940 Act. Subject to approval by the Selling Fund Shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(m) The information to be furnished by the Selling Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations.
(n) From the effective date of the Registration Statement (as 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 Selling Fund for use in the Proxy Materials (as defined in Section 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.
(o) For each taxable year of its operations, the Selling Fund (i) has elected to qualify, and has qualified or will qualify (in the case of the current taxable year), as a “regulated investment company” under the Code (a “RIC”) and (ii) has been eligible to and has computed its U.S. federal income tax under Section 852 of the Code. The Selling Fund will qualify as a RIC as of the Closing Date and will have satisfied as of the close of its most recent prior quarter of its taxable year, the diversification requirements of Section 851(b)(3) of the Code. The Selling Fund has not taken any action, caused any action to be taken or caused any action to fail to be taken which action or failure could cause the Selling Fund to fail to qualify as a RIC under the Code.
(p) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), the 1940 Act or Maryland state law, as applicable, for the execution of this Agreement by the Selling Fund, except for the effectiveness of the Registration Statement (as defined in Section 5.7) and the filing of any documents that may be required under Maryland state law and except for such other consents, approvals, authorizations and filings as have been made or received and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Selling Fund as described in Section 5.2; and
(q) The Selling Fund has adopted and implemented written policies and procedures in accordance with Rule 38a-1 under the 1940 Act.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Westcore Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund Trust is a legally designated, separate series of a statutory trust that is duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The Selling Fund is a separate series of the Selling Trust duly authorized in accordance with the applicable provisions of the Selling Trust’s Agreement and Declaration of Trust and Bylaws.
(c) The Selling Trust is registered as an open-end management investment company under the 1940 Act, and the Selling Trust's such registration with the Commission as an investment company under the 1940 Act has not been revoked or rescinded and is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act and the rules and regulations thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument ’s Agreement and Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Except as otherwise disclosed in writing to and accepted in writing by the Acquiring Fund, the Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it the Selling Fund before the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no No litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated herein.
(g) The financial statements of the Selling Fund as of September 30July 31, 2002 2008, and for the fiscal year then ended ended, have been prepared in accordance with generally accepted accounting principles and have been audited by independent auditors, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30July 31, 20022008, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements. The unaudited financial statements of the Selling Fund as of January 31, 2009, and for the fiscal semi-annual period then ended, have been prepared in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of January 31, 2009, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statements.
(h) Since the date dates of the financial statements referred to in paragraph subsection (g) above, there have been no material adverse changes in the Selling Fund's ’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of business), or any incurrence by ) and there are no known contingent liabilities of the Selling Fund of indebtedness maturing more than one year from the date arising after such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Funddate. For the purposes of this paragraph subsection (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All federal federal, state, local and other tax returns and reports of the Selling Fund required by law to be filed by it (taking into account permitted extensions for filing) have been filedtimely filed and are correct in all material respects. All federal, and all federal state, local and other taxes required to be paid (whether or not shown due on any such returns and reports return or report) have been paid, or provision shall have been made for the payment thereofthereof and any such unpaid taxes are properly reflected on the financial statements referred to in subsection (h) above. To the best of the Selling Fund's ’s knowledge, no such return tax authority is currently under auditauditing or preparing to audit the Selling Fund, and no assessment for taxes, interest, additions to tax, or penalties has been asserted with respect to such returnsagainst the Selling Fund.
(j) All issued and outstanding shares of the Selling Fund are duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing DateClosing, be held by the persons and in the amounts set forth in the records of the Selling Fund's ’s transfer agent as provided in paragraph 3Section 3.3. The Selling Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any shares of the Selling Fund, and has no outstanding securities convertible into shares of the Selling Fund.
(k) At the time of the Closing, the Selling Fund will have good and marketable title to the Selling Fund’s assets to be transferred to the Acquiring Fund pursuant to Section 1.2, and full right, power, and authority to sell, assign, transfer, and deliver such assets, and the Acquiring Fund will acquire good and marketable title thereto.
(l) The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Selling Fund. Subject to approval by the Selling Fund shareholders, this Agreement constitutes a valid and binding obligation of the Selling Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(m) The information to be furnished by the Selling Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations.
(n) The current prospectus and statement of additional information of the Selling Fund conforms in all material respects to the applicable requirements of the Securities Act of 1933, as amended (the “1933 Act”), and the 1940 Act and the rules and regulations thereunder and does not include, with respect to the Selling Trust or the Selling Fund, any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(o) From the effective date of the Registration Statement (as 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 Selling Fund for use in the Proxy Materials (as defined in Section 5.7), or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not misleading.
(p) For each taxable year of its operations, the Selling Fund (i) has elected to qualify, and has qualified or will qualify (in the case of the taxable year that includes the Closing Date for that portion of such taxable year ending with the Closing Date), as a “regulated investment company” under the Code (a “RIC”), (ii) has been eligible to and has computed its federal income tax under Section 852 of the Code, and (iii) has been, and will be as of the Closing Date treated as a separate corporation for federal income tax purposes pursuant to Section 851(g) of the Code. The Selling Fund will qualify as a RIC as of the Closing Date and will have satisfied as of the close of its most recent prior quarter of its taxable year, the diversification requirements of Section 851(b)(3) of the Code without regard to the last sentence of Section 851(d) of the Code. The Selling Fund has not taken any action, caused any action to be taken or caused any action to fail to be taken which action or failure could cause the Selling Fund to fail to qualify as a RIC under the Code.
(q) No governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), the 1940 Act or Delaware state law, as applicable, for the execution of this Agreement by the Selling Trust on behalf of the Selling Fund, except for the effectiveness of the Registration Statement (as defined in Section 5.7) and the Post-Effective Amendment (as defined in Section 8.5) and the filing of any documents that may be required under Delaware state law and except for such other consents, approvals, authorizations and filings as have been made or received and such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the shareholders of the Selling Fund as described in Section 5.2.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Financial Investors Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of the Trust, a statutory business trust that is duly organized, validly existing and in good standing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) The Selling Trust Fund is a separate investment series of the Trust, which is registered as an investment company classified as a management company of the open-end management investment company under the 1940 Acttype, and the Selling Trust's its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act Act"), is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling Trust's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at March 31, 2002 and for the fiscal year then ended have been prepared 2006 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveMarch 31, 2006, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Touchstone Strategic Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Fund is a legally designated, separate investment series of TST, a statutory business trust that is duly organized, validly existing existing, and in good standing under the laws of the State Commonwealth of DelawareMassachusetts.
(b) The Selling Trust Fund is a separate investment series of TST, which is registered as an investment company classified as a management company of the open-end management type, and its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act, and the Selling Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling TrustTST's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Fund is a party or by which it is bound.
(e) The Selling Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Fund to carry out the transactions contemplated by this Agreement. The Selling Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Fund as of September 30at March 31, 2002 and for the fiscal year then ended have been prepared 2010 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveMarch 31, 2010, there have has not been no any material adverse changes change in the Selling Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the 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.
(k) The Acquired Fund is not under the jurisdiction of a court in a "Title 11 or similar case" (within the meaning of Section 368(a)(3)(A) of the Code);
(l) All issued and outstanding shares of the Selling Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Fund. All of the issued and outstanding shares of the Selling Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Reorganization Agreement (Touchstone Strategic Trust)
REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf of the Selling Fund, Acquired Fund represents and warrants to the Acquiring Trust, on behalf of the Acquiring Fund, Fund as follows:
(a) The Selling Acquired Fund is a legally designated, separate investment series of TFGT, a statutory trust that is duly organized, validly existing existing, and in good standing under the laws of the State of Delaware.
(b) The Selling Trust Acquired Fund is a separate investment series of TFGT, which is registered as an investment company classified as a management company of the open-end management type, and its registration with the Securities and Exchange Commission (the "Commission") as an investment company under the 1940 Act, and the Selling Trust's registration with the Commission as an investment company under the 1940 Act is in full force and effect.
(c) The current prospectus and statement of additional information of the Selling Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 1933, as amended (the "1933 Act") ), and the 1940 Act and the rules and regulations of the Commission thereunder and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Selling Acquired Fund is not in violation ofnot, and the execution, delivery delivery, and performance of this Agreement (subject to shareholder approval) will not result result, in the violation of, of any provision of the Selling TrustTFGT's trust instrument Declaration of Trust or bylaws By-Laws or of any material agreement, indenture, instrument, contract, lease lease, or other undertaking to which the Selling Acquired Fund is a party or by which it is bound.
(e) The Selling Acquired Fund has no material contracts or other commitments (other than this Agreement) that will be terminated with liability to it before prior to the Closing Date, except for liabilities, if any, to be discharged or reflected in the Statement of Assets and Liabilities as provided in paragraph 1.2 1.3 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the Selling Acquired Fund or any of its properties or assets thatassets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business business, or the ability of the Selling Acquired Fund to carry out the transactions contemplated by this Agreement. The Selling Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree decree, or judgment of any court or governmental body that materially and adversely affects its business or its ability to consummate the transactions contemplated hereinherein contemplated.
(g) The audited financial statements of the Selling Acquired Fund as of at September 30, 2002 and for the fiscal year then ended have been prepared 2010 are in accordance with generally accepted accounting principles and have been audited by independent auditorsconsistently applied, and such statements (copies of which have been furnished to the Acquiring Fund) fairly reflect the financial condition of the Selling Acquired Fund as of September 30, 2002such date, and there are no known contingent liabilities of the Selling Acquired Fund as of such date that are not disclosed in such statementstherein.
(h) Since the date of the financial statements referred to in paragraph (g) aboveSeptember 30, 2010, there have has not been no any material adverse changes change in the Selling Acquired Fund's financial condition, assets, liabilities liabilities, or business (other than changes occurring in the ordinary course of business), or any incurrence by the Selling Acquired Fund of indebtedness maturing more than one year from the date such indebtedness was incurred, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this paragraph subparagraph (h), a decline in the net asset value of the Selling Acquired Fund shall not constitute a material adverse change.
(i) All At the Closing Date, all federal and other tax returns and reports of the Selling Acquired Fund required by law to be have been filed by such date shall have been filed, and all federal and other taxes shown due on such said returns and reports shall have been paid, or provision shall have been made for the payment thereof. To the best of the Selling Acquired Fund's knowledge, no such return is currently under audit, and no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the Acquired Fund has met the requirements of Subchapter M of the Code for qualification and treatment as a regulated investment company and has distributed in each such year all net investment income and realized capital gains.
(k) The Acquired Fund is not under the jurisdiction of a court in a "Title 11 or similar case" (within the meaning of Section 368(a)(3)(A) of the Code);
(l) All issued and outstanding shares of the Selling Acquired Fund are are, and at the Closing Date will be, duly and validly issued and outstanding, fully paid and nonassessable non-assessable by the Selling Acquired Fund. All of the issued and outstanding shares of the Selling Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Selling Fund's transfer agent as provided in paragraph 3.
Appears in 1 contract
Samples: Reorganization Agreement (Touchstone Strategic Trust)
