AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as
of May 2, 2002 in Boston, Massachusetts, by and between Xxxxxx Voyager
Fund II, a Massachusetts business trust, ("Acquiring Fund"), Xxxxxx
Funds Trust, a Massachusetts business trust, on behalf of its Xxxxxx
Technology Fund series ("Acquired Fund"), and Xxxxxx Investment
Management, LLC, a Delaware limited liability company.
PLAN OF REORGANIZATION
(a) Acquired Fund will sell, assign, convey, transfer and deliver to
Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets existing at the Valuation Time (as defined in
Section 3(d)). In consideration therefor, Acquiring Fund shall, on the
Exchange Date, assume all of the liabilities of Acquired Fund existing
at the Valuation Time and deliver to Acquired Fund (i) a number of full
and fractional Class A shares of beneficial interest of Acquiring Fund
(the "Class A Merger Shares") having an aggregate net asset value equal
to the value of the assets of Acquired Fund attributable to Class A
shares of Acquired Fund transferred to Acquiring Fund on such date less
the value of the liabilities of Acquired Fund attributable to Class A
shares of Acquired Fund assumed by Acquiring Fund on such date; (ii) a
number of full and fractional Class B shares of beneficial interest of
Acquiring Fund (the "Class B Merger Shares") having an aggregate net
asset value equal to the value of the assets of Acquired Fund
attributable to Class B shares of Acquired Fund transferred to Acquiring
Fund on such date less the value of the liabilities of Acquired Fund
attributable to Class B shares of Acquired Fund assumed by Acquiring
Fund on such date; (iii) a number of full and fractional Class C shares
of beneficial interest of Acquiring Fund (the "Class C Merger Shares")
having an aggregate net asset value equal to the value of the assets of
Acquired Fund attributable to Class C shares of Acquired Fund
transferred to Acquiring Fund on such date less the value of the
liabilities of Acquired Fund attributable to Class C shares of Acquired
Fund assumed by Acquiring Fund on such date; (iv) a number of full and
fractional Class M shares of beneficial interest of Acquiring Fund (the
"Class M Merger Shares") having an aggregate net asset value equal to
the value of the assets of Acquired Fund attributable to Class M shares
of Acquired Fund transferred to Acquiring Fund on such date less the
value of the liabilities of Acquired Fund attributable to Class M shares
of Acquired Fund assumed by Acquiring Fund on such date; and (v) a
number of full and fractional Class Y shares of beneficial interest of
Acquiring Fund (the "Class Y Merger Shares") having an aggregate net
asset value equal to the value of the assets of Acquired Fund
attributable to Class Y shares of Acquired Fund transferred to Acquiring
Fund on such date less the value of the liabilities of Acquired Fund
attributable to Class Y shares of Acquired Fund assumed by Acquiring
Fund on such date. The Class A Merger Shares, the Class B Merger
Shares, the Class C Merger Shares, the Class M Merger Shares and the
Class Y Merger Shares shall be referred to collectively as the "Merger
Shares." It is intended that the reorganization described in this Plan
shall be a reorganization within the meaning of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code"). Prior to the
Exchange Date, Acquired Fund will declare and pay to its shareholders a
dividend and/or other distribution in an amount such that it will have
distributed all of its net investment income and capital gains as
described in Section 8(l) hereof.
(b) Upon consummation of the transactions described in paragraph (a) of
this Agreement, Acquired Fund shall distribute in complete liquidation
to its Class A, Class B, Class C, Class M and Class Y shareholders of
record as of the Exchange Date Class A, Class B, Class C, Class M and
Class Y Merger Shares, each shareholder being entitled to receive that
proportion of such Class A, Class B, Class C, Class M or Class Y Merger
Shares that the number of Class A, Class B, Class C, Class M or Class Y
shares of beneficial interest of Acquired Fund held by such shareholder
bears to the number of such Class A, Class B, Class C, Class M or Class
Y shares of Acquired Fund outstanding on such date. Certificates
representing the Merger Shares will be issued only if the shareholder so
requests.
AGREEMENT
Acquiring Fund and Acquired Fund agree as follows:
1. Representations and warranties of Acquiring Fund. Acquiring Fund
represents and warrants to and agrees with Acquired Fund that:
(a) Acquiring Fund is a business trust duly established and validly
existing under the laws of The Commonwealth of Massachusetts, and has
power to own all of its properties and assets and to carry out its
obligations under this Agreement. Acquiring Fund is not required to
qualify as a foreign association in any jurisdiction. Acquiring Fund
has all necessary federal, state and local authorizations to carry on
its business as now being conducted and to carry out this Agreement.
(b) Acquiring Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment
company, and such registration has not been revoked or rescinded and is
in full force and effect.
(c) A statement of assets and liabilities, statement of operations,
statement of changes in net assets and schedule of investments
(indicating their market values) of Acquiring Fund for the fiscal year
ended December 31, 2001, such statements and schedule having been
audited by PricewaterhouseCoopers LLP, independent accountants, have
been furnished to Acquired Fund. Such statement of assets and
liabilities and schedule of investments fairly present the financial
position of Acquiring Fund as of the dates thereof and such statements
of operations and changes in net assets fairly reflect the results of
its operations and changes in net assets for the periods covered thereby
in conformity with generally accepted accounting principles.
(d) The prospectus and statement of additional information dated April
30, 2002, previously furnished to Acquired Fund, and any amendment or
supplement thereto or any superseding prospectus or statement of
additional information in respect thereof in effect prior to the
Exchange Date, which will be furnished to Acquired Fund (collectively,
the "Acquiring Fund Prospectus") do not, as of the date hereof, and will
not, as of the Exchange Date, 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 not misleading; provided
however, that Acquiring Fund makes no representation or warranty as to
any information in the Acquiring Fund Prospectus that does not
specifically relate to Acquiring Fund.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Acquiring Fund, threatened against
Acquiring Fund which assert liability or may, if successfully prosecuted
to their conclusion, result in liability on the part of Acquiring Fund,
other than as have been disclosed in the Prospectus (as defined below).
(f) Acquiring Fund has no known liabilities of a material nature,
contingent or otherwise, other than those shown as belonging to it on
its statement of assets and liabilities as of December 31, 2001 and
those incurred in the ordinary course of Acquiring Fund's business as an
investment company since such date.
(g) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Acquiring
Fund of the transactions contemplated by this Agreement, except such as
may be required under the Securities Act of 1933, as amended (the "1933
Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1940 Act, state securities or blue sky laws (which term as used
herein shall include the laws of the District of Columbia and of Puerto
Rico) or the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the
"H-S-R Act").
(h) The registration statement and any amendment thereto (including any
post-effective amendment) (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") by Acquiring Fund
on Form N-14 relating to the Merger Shares issuable hereunder, and the
proxy statement of Acquired Fund included therein (the "Proxy
Statement"), on the effective date of the Registration Statement (i)
will comply in all material respects with the provisions of the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and (ii) 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 not misleading; and at the time
of the shareholders' meeting referred to in Section 7(a) and at the
Exchange Date, the prospectus contained in the Registration Statement
(the "Prospectus"), as amended or supplemented by any amendments or
supplements filed or requested to be filed with the Commission by
Acquired Fund, 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 not misleading; provided
however, that none of the representations and warranties in this
subsection shall apply to statements in or omissions from the
Registration Statement, the Prospectus or the Proxy Statement made in
reliance upon and in conformity with information furnished by Acquired
Fund for use in the Registration Statement, the Prospectus or the Proxy
Statement.
(i) There are no material contracts outstanding to which Acquiring Fund
is a party, other than as disclosed in the Registration Statement, the
Prospectus, or the Proxy Statement.
(j) All of the issued and outstanding shares of beneficial interest of
Acquiring Fund have been offered for sale and sold in conformity with
all applicable federal securities laws.
(k) Acquiring Fund is and will at all times through the Exchange Date
qualify for taxation as a "regulated investment company" under Sections
851 and 852 of the Code.
(l) Acquiring Fund has filed or will file all federal and state tax
returns which, to the knowledge of Acquiring Fund's officers, are
required to be filed by Acquiring Fund and has paid or will pay all
federal and state taxes shown to be due on said returns or on any
assessments received by Acquiring Fund. All tax liabilities of
Acquiring Fund have been adequately provided for on its books, and to
the knowledge of Acquiring Fund, no tax deficiency or liability of
Acquiring Fund has been asserted, and no question with respect thereto
has been raised, by the Internal Revenue Service or by any state or
local tax authority for taxes in excess of those already paid. As of
the Exchange Date, Acquiring Fund is not under audit by the Internal
Revenue Service or by any state or local tax authority for taxes in
excess of those already paid.
(m) The issuance of the Merger Shares pursuant to this Agreement will be
in compliance with all applicable federal securities laws.
(n) The Merger Shares to be issued to Acquired Fund have been duly
authorized and, when issued and delivered pursuant to this Agreement,
will be legally and validly issued and will be fully paid and
nonassessable by Acquiring Fund, and no shareholder of Acquiring Fund
will have any preemptive right of subscription or purchase in respect
thereof.
2. Representations and warranties of Acquired Fund. Acquired Fund
represents and warrants to and agrees with Acquiring Fund that:
(a) Acquired Fund is a series of Xxxxxx Funds Trust, a business trust
duly established and validly existing under the laws of The Commonwealth
of Massachusetts, and has power to own all of its properties and assets
and to carry out its obligations under this Agreement. Acquired Fund is
not required to qualify as a foreign association in any jurisdiction.
Acquired Fund has all necessary federal, state and local authorizations
to carry on its business as now being conducted and to carry out this
Agreement.
(b) Acquired Fund is registered under the 1940 Act as an open-end
management investment company, and such registration has not been
revoked or rescinded and is in full force and effect.
(c) A statement of assets and liabilities, statement of operations,
statement of changes in net assets and schedule of investments
(indicating their market values) of Acquired Fund for the fiscal year
ended January 31, 2002, such statements and schedule having been audited
by PricewaterhouseCoopers LLP, independent accountants, have been
furnished to Acquiring Fund. Such statement of assets and liabilities
and schedules of investments fairly present the financial position of
Acquired Fund as of January 31, 2002, and such statements of operations
and changes in net assets fairly reflect the results of its operations
and changes in net assets for the period covered thereby in conformity
with generally accepted accounting principles.
(d) The prospectus and statement of additional information dated [May
30, 2002], previously furnished to Acquiring Fund, and any amendment or
supplement thereto or any superseding prospectus or statement of
additional information in respect thereof in effect prior to the
Exchange Date, which will be furnished to Acquiring Fund (collectively
the "Acquired Fund Prospectus"), do not, as of the date hereof, and will
not, as of the Exchange Date, 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 not misleading; provided
however, that Acquired Fund makes no representation or warranty as to
any information in the Acquired Fund Prospectus that does not
specifically relate to Acquired Fund.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Acquired Fund, threatened against
Acquired Fund which assert liability or may, if successfully prosecuted
to their conclusion, result in liability on the part of Acquired Fund,
other than as have been disclosed in the Registration Statement.
(f) Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those shown as belonging to it on
its statement of assets and liabilities as of January 31, 2002 and those
incurred in the ordinary course of Acquired Fund's business as an
investment company since such date. Prior to the Exchange Date,
Acquired Fund will advise Acquiring Fund of all material liabilities,
contingent or otherwise, incurred by it subsequent to January 31, 2002,
whether or not incurred in the ordinary course of business.
(g) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by Acquired Fund
of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the 1934 Act, the 1940 Act, state
securities or blue sky laws, or the H-S-R Act.
(h) The Registration Statement, the Prospectus and the Proxy Statement,
on the Effective Date of the Registration Statement and insofar as they
do not relate to Acquiring Fund (i) will comply in all material respects
with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and
the rules and regulations thereunder and (ii) 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 not misleading; and at the time of the shareholders' meeting
referred to in Section 7(a) below and on the Exchange Date, the
Prospectus, as amended or supplemented by any amendments or supplements
filed or requested to be filed with the Commission by Acquiring Fund,
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 not misleading; provided however, that the
representations and warranties in this subsection shall apply only to
statements of fact relating to Acquired Fund contained in the
Registration Statement, the Prospectus or the Proxy Statement, or
omissions to state in any thereof a material fact relating to Acquired
Fund, as such Registration Statement, Prospectus and Proxy Statement
shall be furnished to Acquired Fund in definitive form as soon as
practicable following effectiveness of the Registration Statement and
before any public distribution of the Prospectuses or Proxy Statements.
(i) There are no material contracts outstanding to which Acquired Fund
is a party, other than as will be disclosed in the Prospectus or the
Proxy Statement.
(j) All of the issued and outstanding shares of beneficial interest of
Acquired Fund have been offered for sale and sold in conformity with all
applicable federal securities laws.
(k) Acquired Fund is and will at all times through the Exchange Date
qualify for taxation as a "regulated investment company" under Sections
851 and 852 of the Code.
(l) Acquired Fund has filed or will file all federal and state tax
returns which, to the knowledge of Acquired Fund's officers, are
required to be filed by Acquired Fund and has paid or will pay all
federal and state taxes shown to be due on said returns or on any
assessments received by Acquired Fund. All tax liabilities of Acquired
Fund have been adequately provided for on its books, and to the
knowledge of Acquired Fund, no tax deficiency or liability of Acquired
Fund has been asserted, and no question with respect thereto has been
raised, by the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid. As of the Exchange
Date, Acquired Fund is not under audit by the Internal Revenue Service
or by any state or local tax authority for taxes in excess of those
already paid.
(m) At both the Valuation Time and the Exchange Date, Acquired Fund will
have full right, power and authority to sell, assign, transfer and
deliver the Investments and any other assets and liabilities of Acquired
Fund to be transferred to Acquiring Fund pursuant to this Agreement. At
the Exchange Date, subject only to the delivery of the Investments and
any such other assets and liabilities as contemplated by this Agreement,
Acquiring Fund will acquire the Investments and any such other assets
and liabilities subject to no encumbrances, liens or security interests
whatsoever and without any restrictions upon the transfer thereof
(except for such restrictions as previously disclosed to Acquiring Fund
by Acquired Fund). As used in this Agreement, the term "Investments"
shall mean Acquired Fund's investments shown on the schedule of its
investments as of January 31, 2002 referred to in Section 2(c) hereof,
as supplemented with such changes as Acquired Fund shall make, and
changes resulting from stock dividends, stock splits, mergers and
similar corporate actions.
(n) No registration under the 1933 Act of any of the Investments would
be required if they were, as of the time of such transfer, the subject
of a public distribution by either of Acquiring Fund or Acquired Fund,
except as previously disclosed to Acquiring Fund by Acquired Fund.
(o) At the Exchange Date, Acquired Fund will have sold such of its
assets, if any, as necessary to ensure that, after giving effect to the
acquisition of the assets of Acquired Fund pursuant to this Agreement,
Acquiring Fund will remain in compliance with its mandatory investment
restrictions as set forth in the Registration Statement.
3. Reorganization.
(a) Subject to the requisite approval of the shareholders of Acquired
Fund and to the other terms and conditions contained herein (including
Acquired Fund's obligation to distribute to its shareholders all of its
net investment income and capital gains as described in Section 8(l)
hereof), Acquired Fund agrees to sell, assign, convey, transfer and
deliver to Acquiring Fund, and Acquiring Fund agrees to acquire from
Acquired Fund, on the Exchange Date all of the Investments and all of
the cash and other properties and assets of Acquired Fund, whether
accrued or contingent (including cash received by Acquired Fund upon the
liquidation by Acquired Fund of any investments purchased by Acquired
Fund after January 31, 2002 and designated by Acquiring Fund as being
unsuitable for it to acquire), in exchange for that number of Merger
Shares provided for in Section 4 and the assumption by Acquiring Fund of
all of the liabilities of Acquired Fund, whether accrued or contingent,
existing at the Valuation Time. Pursuant to this Agreement, Acquired
Fund will, as soon as practicable after the Exchange Date, distribute
all of the Class A, Class B, Class C, Class M and Class Y Merger Shares
received by it to the Class A, Class B, Class C, Class M and Class Y
shareholders, respectively, of Acquired Fund, in complete liquidation of
Acquired Fund.
(b) As soon as practicable following the requisite approval of the
shareholders of Acquired Fund, Acquired Fund will, at its expense,
liquidate such of its portfolio securities as Acquiring Fund shall
indicate it does not wish to acquire. Such liquidation will be
substantially completed prior to the Exchange Date, unless otherwise
agreed by Acquired Fund and Acquiring Fund.
(c) Acquired Fund will pay or cause to be paid to Acquiring Fund any
interest, cash or such dividends, rights and other payments received by
it on or after the Exchange Date with respect to the Investments and
other properties and assets of Acquired Fund, whether accrued or
contingent, received by it on or after the Exchange Date. Any such
distribution shall be deemed included in the assets transferred to
Acquiring Fund at the Exchange Date and shall not be separately valued
unless the securities in respect of which such distribution is made
shall have gone "ex" such distribution prior to the Valuation Time, in
which case any such distribution which remains unpaid at the Exchange
Date shall be included in the determination of the value of the assets
of Acquired Fund acquired by Acquiring Fund.
(d) The Valuation Time shall be 4:00 p.m. Boston time on October 11,
2002 or such earlier or later day as may be mutually agreed upon in
writing by the parties hereto (the "Valuation Time").
4. Exchange date; valuation time. On the Exchange Date, Acquiring Fund
will deliver to Acquired Fund (i) a number of full and fractional Class
A Merger Shares having an aggregate net asset value equal to the value
of assets of Acquired Fund attributable to Class A shares of Acquired
Fund transferred to Acquiring Fund on such date less the value of the
liabilities of Acquired Fund attributable to the Class A shares of
Acquired Fund assumed by Acquiring Fund on that date; (ii) a number of
full and fractional Class B Merger Shares having an aggregate net asset
value equal to the value of the assets of Acquired Fund attributable to
Class B shares of Acquired Fund transferred to Acquiring Fund on such
date less the value of the liabilities of Acquired Fund attributable to
Class B shares of Acquired Fund assumed by Acquiring Fund on that date;
(iii) a number of full and fractional Class C Merger Shares having an
aggregate net asset value equal to the value of the assets of Acquired
Fund attributable to Class C shares of Acquired Fund transferred to
Acquiring Fund on such date less the value of the liabilities of
Acquired Fund attributable to Class C shares of Acquired Fund assumed by
Acquiring Fund on that date, (iv) a number of full and fractional Class
M Merger Shares having an aggregate net asset value equal to the value
of the assets of Acquired Fund attributable to Class M shares of
Acquired Fund transferred to Acquiring Fund on such date less the value
of the liabilities of Acquired Fund attributable to Class M; and (v) a
number of full and fractional Class Y Merger Shares having an aggregate
net asset value equal to the value of the assets of Acquired Fund
attributable to Class Y shares of Acquired Fund transferred to Acquiring
Fund on such date less the value of the liabilities of Acquired Fund
attributable to Class Y shares of Acquired Fund assumed by Acquiring
Fund on that date.
(a) The net asset value of the Merger Shares to be delivered to Acquired
Fund, the value of the assets attributable to the Class A, Class B,
Class C, Class M and Class Y shares of Acquired Fund and the value of
the liabilities attributable to the Class A, Class B, Class C, Class M
and Class Y shares of Acquired Fund to be assumed by Acquiring Fund
shall in each case be determined as of the Valuation Time.
(b) The net asset value of the Class A, Class B, Class C, Class M and
Class Y Merger Shares, and the value of the assets and liabilities of
the Class A, Class B, Class C, Class M and Class Y shares of Acquired
Fund shall be determined by Acquiring Fund, in cooperation with Acquired
Fund, pursuant to procedures customarily used by Acquiring Fund in
determining the fair market value of Acquiring Fund's assets and
liabilities.
(c) No adjustment shall be made in the net asset value of either
Acquired Fund or Acquiring Fund to take into account differences in
realized and unrealized gains and losses.
(d) Reserved.
(e) Acquiring Fund shall issue the Merger Shares to Acquired Fund in
five certificates registered in the name of Acquired Fund, one for Class
A Merger Shares, one for Class B Merger Shares, one for Class C Merger
Shares, one for Class M Merger Shares and one for Class Y Merger Shares
(excluding any fractional shares). Acquired Fund shall distribute the
Class A Merger Shares to the Class A shareholders of Acquired Fund by
redelivering such certificates to Acquiring Fund's transfer agent which
will as soon as practicable set up open accounts for each Class A
shareholder of Acquired Fund in accordance with written instructions
furnished by Acquired Fund. Acquired Fund shall distribute the Class B
Merger Shares to the Class B shareholders of Acquired Fund by
redelivering such certificates to Acquiring Fund's transfer agent which
will as soon as practicable set up open accounts for each Class B
shareholder of Acquired Fund in accordance with written instructions
furnished by Acquired Fund. Acquired Fund shall distribute the Class C
Merger Shares to the Class C shareholders of Acquired Fund by
redelivering such certificates to Acquiring Fund's transfer agent which
will as soon as practicable set up open accounts for each Class C
shareholder of Acquired Fund in accordance with written instructions
furnished by Acquired Fund. Acquired Fund shall distribute the Class M
Merger Shares to the Class M shareholders of Acquired Fund by
redelivering such certificates to Acquiring Fund's transfer agent which
will as soon as practicable set up open accounts for each Class M
shareholder of Acquired Fund in accordance with written instructions
furnished by Acquired Fund. Acquired Fund shall distribute the Class Y
Merger Shares to the Class Y shareholders of Acquired Fund by
redelivering such certificates to Acquiring Fund's transfer agent which
will as soon as practicable set up open accounts for each Class Y
shareholder of Acquired Fund in accordance with written instructions
furnished by Acquired Fund. With respect to any Acquired Fund
shareholder holding share certificates as of the Exchange Date,
Acquiring Fund will not permit such shareholder to receive dividends and
other distributions on the Merger Shares (although such dividends and
other distributions shall be credited to the account of such
shareholder), receive certificates representing the Merger Shares, or
pledge such Merger Shares until such shareholder has surrendered his or
her outstanding Acquired Fund certificates or, in the event of lost,
stolen, or destroyed certificates, posted adequate bond. In the event
that a shareholder shall not be permitted to receive dividends and other
distributions on the Merger Shares as provided in the preceding
sentence, Acquiring Fund shall pay any such dividends or distributions
in additional shares, notwithstanding any election such shareholder
shall have made previously with respect to the payment, in cash or
otherwise, of dividends and distributions on shares of Acquired Fund.
Acquired Fund will, at its expense, request the shareholders of Acquired
Fund to surrender their outstanding Acquired Fund certificates, or post
adequate bond, as the case may be.
(f) Acquiring Fund shall assume all liabilities of Acquired Fund,
whether accrued or contingent, in connection with the acquisition of
assets and subsequent dissolution of Acquired Fund or otherwise.
5. Expenses, fees, etc.
(a) All fees and expenses, including legal and accounting expenses,
portfolio transfer taxes (if any) or other similar expenses incurred in
connection with the consummation by Acquired Fund and Acquiring Fund of
the transactions contemplated by this Agreement (together with the costs
specified in (i) below, "Expenses") will be allocated ratably between
Acquiring Fund and Acquired Fund in proportion to their net assets as of
the Valuation Time, except that (i) the costs of proxy materials and
proxy solicitation will be borne by Acquired Fund, and (ii) the costs of
liquidating such of Acquired Fund's portfolio securities as Acquiring
Fund shall indicate it does not wish to acquire prior to the Exchange
Date shall be borne by Acquired Fund; provided however, that the
Expenses to be borne by the Acquiring Fund will not exceed $33,300, the
Expenses to be borne by the Acquired Fund will not exceed $520,765, and
the remainder of any such Expenses will be borne by Xxxxxx Investment
Management, LLC; and provided further that such Expenses will in any
event be paid by the party directly incurring such expenses if and to
the extent that the payment by the other party of such Expenses would
result in the disqualification of Acquiring Fund or Acquired Fund, as
the case may be, as a "regulated investment company" within the meaning
of Section 851 of the Code.
(b) In the event the transactions contemplated by this Agreement are not
consummated by reason of Acquiring Fund's being either unwilling or
unable to go forward (other than by reason of the nonfulfillment or
failure of any condition to Acquiring Fund's obligations referred to in
Section 8), or by reason of the nonfulfillment or failure of any
condition to Acquired Fund's obligations referred to in Section 9,
Acquiring Fund shall pay directly all reasonable fees and expenses
incurred by Acquired Fund in connection with such transactions,
including, without limitation, legal, accounting and filing fees.
(c) In the event the transactions contemplated by this Agreement are not
consummated by reason of Acquired Fund's being either unwilling or
unable to go forward (other than by reason of the nonfulfillment or
failure of any condition to Acquired Fund's obligations referred to in
Section 9), or by reason of the nonfulfillment or failure of any
condition to Acquiring Fund's obligations referred to in Section 8,
Acquired Fund shall pay directly all reasonable fees and expenses
incurred by Acquiring Fund in connection with such transactions,
including without limitation legal, accounting and filing fees.
(d) In the event the transactions contemplated by this Agreement are not
consummated for any reason other than (i) Acquiring Fund's or Acquired
Fund's being either unwilling or unable to go forward or (ii) the
nonfulfillment or failure of any condition to Acquiring Fund's or
Acquired Fund's obligations referred to in Section 8 or Section 9 of
this Agreement, then each of Acquiring Fund and Acquired Fund shall bear
all of its own expenses incurred in connection with such transactions.
(e) Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not
consummated, no party shall be liable to the other party for any damages
resulting therefrom, including without limitation consequential damages,
except as specifically set forth above.
6. Exchange date. Delivery of the assets of Acquired Fund to be
transferred, assumption of the liabilities of Acquired Fund to be
assumed and the delivery of the Merger Shares to be issued shall be made
at the offices of Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx, at 7:30 A.M. on the next full business day following the
Valuation Time, or at such other time and date agreed to by Acquiring
Fund and Acquired Fund, the date and time upon which such delivery is to
take place being referred to herein as the "Exchange Date."
7. Meeting of shareholders; dissolution.
(a) Acquired Fund agrees to call a meeting of its shareholders as soon
as is practicable after the effective date of the Registration Statement
for, among other things, the purpose of considering the matters
contemplated by this Agreement.
(b) Acquired Fund agrees that the liquidation and dissolution of
Acquired Fund will be effected in the manner provided in the Agreement
and Declaration of Trust of Acquired Fund in accordance with applicable
law and that on and after the Exchange Date, Acquired Fund shall not
conduct any business except in connection with its liquidation and
dissolution.
(c) Acquiring Fund has, after the preparation and delivery to Acquiring
Fund by Acquired Fund of a preliminary version of the Proxy Statement
which was satisfactory to Acquiring Fund and to Ropes & Xxxx for
inclusion in the Registration Statement, filed the Registration
Statement with the Commission. Each of Acquired Fund and Acquiring Fund
will cooperate with the other, and each will furnish to the other the
information relating to itself required by the 1933 Act, the 1934 Act
and the 1940 Act and the rules and regulations thereunder set forth in
the Registration Statement, including the Prospectus and the Proxy
Statement.
8. Conditions to Acquiring Fund's obligations. The obligations of
Acquiring Fund hereunder shall be subject to the following conditions:
(a) That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the affirmative vote of
(i) at least a majority of the Trustees of Acquired Fund (including a
majority of those Trustees who are not "interested persons" of Acquired
Fund, as defined in Section 2(a)(19) of the 0000 Xxx); (ii) at least a
majority of the Trustees of Acquiring Fund (including a majority of
those Trustees who are not "interested persons" of Acquiring Fund, as
defined in Section 2(a)(19) of the 0000 Xxx); and (iii) a majority of
the shares of Acquired Fund voted at a duly constituted meeting.
(b) That Acquired Fund shall have furnished to Acquiring Fund a
statement of Acquired Fund's net assets, with values determined as
provided in Section 4 of this Agreement, together with a list of
Investments with their respective tax costs, all as of the Valuation
Time, certified on Acquired Fund's behalf by Acquired Fund's President
(or any Vice President) and Treasurer (or any Assistant Treasurer), and
a certificate of both such officers, dated the Exchange Date, to the
effect that as of the Valuation Time and as of the Effective Date there
has been no material adverse change in the financial position of
Acquired Fund since January 31, 2002 other than changes in the
Investments and other assets and properties since that date or changes
in the market value of the Investments and other assets of Acquired
Fund, changes due to net redemptions or changes due to dividends paid or
losses from operations.
(c) That Acquired Fund shall have furnished to Acquiring Fund a
statement, dated the Exchange Date, signed on behalf of Acquired Fund by
Acquired Fund's President (or any Vice President) and Treasurer (or any
Assistant Treasurer) certifying that as of the Valuation Time and as of
the Exchange Date all representations and warranties of Acquired Fund
made in this Agreement are true and correct in all material respects as
if made at and as of such dates, and that Acquired Fund has complied
with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied at or prior to each of such dates.
(d) That Acquired Fund shall have delivered to Acquiring Fund an agreed
upon procedures letter from PricewaterhouseCoopers LLP dated the
Exchange Date, setting forth findings of PricewaterhouseCoopers LLP
pursuant to its performance of the agreed upon procedures set forth
therein relating to management's assertions that (i) for the short
taxable period from January 31, 2002 to the Exchange Date Acquired Fund
qualified as a regulated investment company under the Internal Revenue
Code (the "Code"), (ii) as of the Exchange Date, has no liability other
than liabilities stated for federal or state income taxes and (iii) as
of the Exchange Date, has no liability for federal excise tax purposes
under section 4982 of the Code.
(e) That there shall not be any material litigation pending with respect
to the matters contemplated by this Agreement.
(f) That Acquiring Fund shall have received an opinion of Ropes & Xxxx,
in form satisfactory to Acquiring Fund and dated the Exchange Date, to
the effect that (i) Acquired Fund is a business trust duly established
and validly existing under the laws of The Commonwealth of
Massachusetts, and, to the knowledge of such counsel, is not required to
qualify to do business as a foreign association in any jurisdiction
except as may be required by state securities or blue sky laws, (ii)
this Agreement has been duly authorized, executed, and delivered by
Acquired Fund and, assuming that the Registration Statement, the
Prospectus and the Proxy Statement comply with the 1933 Act, the 1934
Act and the 1940 Act and assuming due authorization, execution and
delivery of this Agreement by Acquiring Fund, is a valid and binding
obligation of Acquired Fund, (iii) Acquired Fund has power to sell,
assign, convey, transfer and deliver the assets contemplated hereby and,
upon consummation of the transactions contemplated hereby in accordance
with the terms of this Agreement, Acquired Fund will have duly sold,
assigned, conveyed, transferred and delivered such assets to Acquiring
Fund, (iv) the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated hereby will not, violate
Acquired Fund's Agreement and Declaration of Trust, as amended, or
Bylaws or any provision of any agreement known to such counsel to which
Acquired Fund is a party or by which it is bound, it being understood
that with respect to investment restrictions as contained in Acquired
Fund's Agreement and Declaration of Trust, Bylaws, then current
prospectus or statement of additional information or the Registration
Statement, such counsel may rely upon a certificate of an officer of
Acquired Fund's whose responsibility it is to advise Acquired Fund with
respect to such matters, and (v) no consent, approval, authorization or
order of any court or governmental authority is required for the
consummation by Acquired Fund of the transactions contemplated hereby,
except such as have been obtained under the 1933 Act, the 1934 Act, the
1940 Act and such as may be required under state securities or blue sky
laws and the H-S-R Act, and (vi) such other matters as Acquiring Fund
may reasonably deem necessary or desirable.
(g) That Acquiring Fund shall have received an opinion of Ropes & Xxxx
dated the Exchange Date (which opinion would be based upon certain
factual representations and subject to certain qualifications), to the
effect that, on the basis of the existing provisions of the Code,
current administrative rules and court decisions, for federal income tax
purposes: (i) the acquisition by Acquiring Fund of substantially all of
the assets of Acquired Fund solely in exchange for Merger Shares and the
assumption by Acquiring Fund of liabilities of Acquired Fund followed by
the distribution of Acquired Fund to its shareholders of Merger Shares
in complete liquidation of Acquired Fund, all pursuant to the plan of
reorganization, constitutes a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code and Acquired Fund and
Acquiring Fund will each be a "party to a reorganization" within the
meaning of Section 368(b) of the Internal Revenue Code, (ii) no gain or
loss will be recognized by Acquiring Fund or its shareholders upon
receipt of the Investments transferred to Acquiring Fund pursuant to
this Agreement in exchange for the Merger Shares, (iii) the basis to
Acquiring Fund of the Investments will be the same as the basis of the
Investments in the hands of Acquired Fund immediately prior to such
exchange, (iv) Acquiring Fund's holding periods with respect to the
Investments will include the respective periods for which the
Investments were held by Acquired Fund; and (v) Acquiring Fund will
succeed to and take into account the items of Acquired Fund described in
Section 381(c) of the Internal Revenue Code, subject to the conditions
and limitations specified in Sections 381, 382, 383 and 384 of the
Internal Revenue Code and Regulations thereunder.
(h) That the assets of Acquired Fund to be acquired by Acquiring Fund
will include no assets which Acquiring Fund, by reason of charter
limitations or of investment restrictions disclosed in the Registration
Statement in effect on the Exchange Date, may not properly acquire.
(i) That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of Acquiring Fund, threatened by
the Commission.
(j) That Acquiring Fund shall have received from the Commission, any
relevant state securities administrator, the Federal Trade Commission
(the "FTC") and the Department of Justice (the "Department") such order
or orders as Ropes & Gray deems reasonably necessary or desirable under
the 1933 Act, the 1934 Act, the 1940 Act, any applicable state
securities or blue sky laws and the H-S-R Act in connection with the
transactions contemplated hereby, and that all such orders shall be in
full force and effect.
(k) That all proceedings taken by Acquired Fund in connection with the
transactions contemplated by this Agreement and all documents incidental
thereto shall be satisfactory in form and substance to Acquiring Fund
and Ropes & Xxxx.
(l) That, prior to the Exchange Date, Acquired Fund shall have declared
a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to the shareholders of
Acquired Fund (i) all of the excess of (X) Acquired Fund's investment
income excludable from gross income under Section 103 of the Code over
(Y) Acquired Fund's deductions disallowed under Sections 265 and 171 of
the Code, (ii) all of Acquired Fund's investment company taxable income
(as defined in Section 852 of the Code) for its taxable years ending on
or after January 31, 2002, and on or prior to the Exchange Date
(computed in each case without regard to any deduction for dividends
paid), and (iii) all of its net capital gain realized after reduction by
any capital loss carryover in each of its taxable years ending on or
after January 31, 2002, and on or prior to the Exchange Date.
(m) That Acquired Fund's custodian shall have delivered to Acquiring
Fund a certificate identifying all of the assets of Acquired Fund held
by such custodian as of the Valuation Time.
(n) That Acquired Fund's transfer agent shall have provided to Acquiring
Fund (i) the originals or true copies of all of the records of Acquired
Fund in the possession of such transfer agent as of the Exchange Date,
(ii) a certificate setting forth the number of shares of Acquired Fund
outstanding as of the Valuation Time, and (iii) the name and address of
each holder of record of any such shares and the number of shares held
of record by each such shareholder.
(o) That all of the issued and outstanding shares of beneficial interest
of Acquired Fund shall have been offered for sale and sold in conformity
with all applicable state securities or blue sky laws and, to the extent
that any audit of the records of Acquired Fund or its transfer agent by
Acquiring Fund or its agents shall have revealed otherwise, either (i)
Acquired Fund shall have taken all actions that in the opinion of
Acquiring Fund or its counsel are necessary to remedy any prior failure
on the part of Acquired Fund to have offered for sale and sold such
shares in conformity with such laws or (ii) Acquired Fund shall have
furnished (or caused to be furnished) surety, or deposited (or caused to
be deposited) assets in escrow, for the benefit of Acquiring Fund in
amounts sufficient and upon terms satisfactory, in the opinion of
Acquiring Fund or its counsel, to indemnify Acquiring Fund against any
expense, loss, claim, damage or liability whatsoever that may be
asserted or threatened by reason of such failure on the part of Acquired
Fund to have offered and sold such shares in conformity with such laws.
(p) That Acquiring Fund shall have received from PricewaterhouseCoopers
LLP an agreed upon procedures letter addressed to Acquiring Fund dated
as of the Exchange Date satisfactory in form and substance to Acquiring
Fund setting forth the findings of PricewaterhouseCoopers LLP pursuant
to its performance of the agreed upon procedures set forth therein
relating to management's assertion that as of the Valuation Time the
value of the assets of Acquired Fund to be exchanged for the Merger
Shares has been determined in accordance with the provisions of Article
10, Section 5 of Acquiring Fund's By-laws pursuant to the procedures
customarily utilized by Acquiring Fund in valuing its assets and issuing
its shares.
(q) That Acquired Fund shall have executed and delivered to Acquiring
Fund an instrument of transfer dated as of the Exchange Date pursuant to
which Acquired Fund will assign, transfer and convey all of the assets
and other property to Acquiring Fund at the Valuation Time in connection
with the transactions contemplated by this Agreement.
9. Conditions to Acquired Fund's obligations. The obligations of
Acquired Fund hereunder shall be subject to the following conditions:
(a) That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the affirmative vote of
(i) at least a majority of the Trustees of Acquired Fund (including a
majority of those Trustees who are not "interested persons" of Acquired
Fund, as defined in Section 2(a)(19) of the 0000 Xxx); (ii) at least a
majority of the Trustees of Acquiring Fund (including a majority of
those Trustees who are not "interested persons" of Acquiring Fund, as
defined in Section 2(a)(19) of the 0000 Xxx); and (iii) a majority of
the shares of Acquired Fund voted at a duly constituted meeting.
(b) That Acquiring Fund shall have furnished to Acquired Fund a
statement of Acquiring Fund's net assets, together with a list of
portfolio holdings with values determined as provided in Section 4 of
this Agreement, all as of the Valuation Time, certified on behalf of
Acquiring Fund by Acquiring Fund's President (or any Vice President) and
Treasurer (or any Assistant Treasurer), and a certificate of both such
officers, dated the Exchange Date, to the effect that as of the
Valuation Time and as of the Exchange Date there has been no material
adverse change in the financial position of Acquiring Fund since
December 31, 2001, other than changes in its portfolio securities since
that date, changes in the market value of its portfolio securities,
changes due to net redemptions or changes due to dividends paid or
losses from operations.
(c) That Acquiring Fund shall have executed and delivered to Acquired
Fund an Assumption of Liabilities dated as of the Exchange Date pursuant
to which Acquiring Fund will assume all of the liabilities of Acquired
Fund existing at the Valuation Time in connection with the transactions
contemplated by this Agreement.
(d) That Acquiring Fund shall have furnished to Acquired Fund a
statement, dated the Exchange Date, signed on behalf of Acquiring Fund
by Acquiring Fund's President (or any Vice President) and Treasurer (or
any Assistant Treasurer) certifying that as of the Valuation Time and as
of the Exchange Date all representations and warranties of Acquiring
Fund made in this Agreement are true and correct in all material
respects as if made at and as of such dates, and that Acquiring Fund has
complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied at or prior to each of such
dates.
(e) That there shall not be any material litigation pending or
threatened with respect to the matters by this Agreement.
(f) That Acquired Fund shall have received an opinion of Ropes & Xxxx,
in form satisfactory to Acquired Fund and dated the Exchange Date, to
the effect that (i) Acquiring Fund is a business trust duly established
and validly existing in conformity with the laws of The Commonwealth of
Massachusetts, and, to the knowledge of such counsel, is not required to
qualify to do business as a foreign association in any jurisdiction
except as may be required by state securities or blue sky laws, (ii)
this Agreement has been duly authorized, executed and delivered by
Acquiring Fund and, assuming that the Prospectus, the Registration
Statement and the Proxy Statement comply with the 1933 Act, the 1934 Act
and the 1940 Act and assuming due authorization, execution and delivery
of this Agreement by Acquired Fund, is a valid and binding obligation of
Acquiring Fund, (iii) the Merger Shares to be delivered to Acquired Fund
as provided for by this Agreement are duly authorized and upon such
delivery will be validly issued and will be fully paid and nonassessable
by Acquiring Fund and no shareholder of Acquiring Fund has any
preemptive right to subscription or purchase in respect thereof, (iv)
the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated hereby will not, violate
Acquiring Fund's Agreement and Declaration of Trust, as amended, or
By-laws, or any provision of any agreement known to such counsel to
which Acquiring Fund is a party or by which it is bound, it being
understood that with respect to investment restrictions as contained in
Acquiring Fund's Agreement and Declaration of Trust, Bylaws, then
current prospectus or statement of additional information or the
Registration Statement, such counsel may rely upon a certificate of an
officer of Acquiring Fund whose responsibility it is to advise Acquiring
Fund with respect to such matters, (v) no consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by Acquiring Fund of the transactions
contemplated herein, except such as have been obtained under the 1933
Act, the 1934 Act and the 1940 Act and such as may be required under
state securities or blue sky laws and the H-S-R Act, and (vi) the
Registration Statement has become effective under the 1933 Act, and to
the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act.
(g) That Acquired Fund shall have received an opinion of Ropes & Xxxx
dated the Exchange Date (which opinion would be based upon certain
factual representations and subject to certain qualifications), to the
effect that, on the basis of the existing provisions of the Code,
current administrative rules and court decisions, for federal income tax
purposes: i) the acquisition by Acquiring Fund of substantially all of
the assets of Acquired Fund solely in exchange for Merger Shares and the
assumption by Acquiring Fund of liabilities of Acquired Fund followed by
the distribution of Acquired Fund to its shareholders of Merger Shares
in complete liquidation of Acquired Fund, all pursuant to the plan of
reorganization, constitutes a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code and Acquired Fund and
Acquiring Fund will each be a "party to a reorganization" within the
meaning of Section 368(b) of the Internal Revenue Code, (ii) no gain or
loss will be recognized by Acquired Fund upon the transfer of the
Investments to Acquiring Fund and the assumption by Acquiring Fund of
the liabilities of Acquired Fund, or upon the distribution of the Merger
Shares by Acquired Fund to its shareholders, pursuant to this Agreement,
(iii) no gain or loss will be recognized by the Acquired Fund
shareholders on the exchange of their shares of the Acquired Fund for
Merger Shares; (iv) the aggregate basis of the Merger Shares a Acquired
Fund shareholder receives in connection with the transaction will be the
same as the aggregate basis of his or her Acquired Fund shares exchanged
therefor, and (v) a Acquired Fund shareholder's holding period for his
or her Merger Shares will be determined by including the period for
which he or she held Acquired Fund shares exchanged therefore, provided
that the shareholder held the Acquired Fund's shares as a capital asset.
(h) That all proceedings taken by or on behalf of Acquiring Fund in
connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance
to Acquired Fund and Ropes & Xxxx.
(i) That the Registration Statement shall have become effective under
the 1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of Acquiring Fund, threatened by
the Commission.
(j) That Acquired Fund shall have received from the Commission, any
relevant state securities administrator, the FTC and the Department such
order or orders as Ropes & Gray deems reasonably necessary or desirable
under the 1933 Act, the 1934 Act, the 1940 Act, any applicable state
securities or blue sky laws and the H-S-R Act in connection with the
transactions contemplated hereby, and that all such orders shall be in
full force and effect.
10. Indemnification.
(a) Acquired Fund will indemnify and hold harmless, out of the assets of
Acquired Fund but no other assets, Acquiring Fund, its trustees and its
officers (for purposes of this subparagraph, the "Indemnified Parties")
against any and all expenses, losses, claims, damages and liabilities at
any time imposed upon or reasonably incurred by any one or more of the
Indemnified Parties in connection with, arising out of, or resulting
from any claim, action, suit or proceeding in which any one or more of
the Indemnified Parties may be involved or with which any one or more of
the Indemnified Parties may be threatened by reason of any untrue
statement or alleged untrue statement of a material fact relating to
Acquired Fund contained in the Registration Statement, the Prospectus,
the Proxy Statement or any amendment or supplement to any of the
foregoing, or arising out of or based upon the omission or alleged
omission to state in any of the foregoing a material fact relating to
Acquired Fund required to be stated therein or necessary to make the
statements relating to Acquired Fund therein not misleading, including,
without limitation, any amounts paid by any one or more of the
Indemnified Parties in a reasonable compromise or settlement of any such
claim, action, suit or proceeding, or threatened claim, action, suit or
proceeding made with the consent of Acquired Fund. The Indemnified
Parties will notify Acquired Fund in writing within ten days after the
receipt by any one or more of the Indemnified Parties of any notice of
legal process or any suit brought against or claim made against such
Indemnified Party as to any matters covered by this Section 10(a).
Acquired Fund shall be entitled to participate at its own expense in the
defense of any claim, action, suit or proceeding covered by this Section
10(a), or, if it so elects, to assume at its expense by counsel
satisfactory to the Indemnified Parties the defense of any such claim,
action, suit or proceeding, and if Acquired Fund elects to assume such
defense, the Indemnified Parties shall be entitled to participate in the
defense of any such claim, action, suit or proceeding at their expense.
Acquired Fund's obligation under this Section 10(a) to indemnify and
hold harmless the Indemnified Parties shall constitute a guarantee of
payment so that Acquired Fund will pay in the first instance any
expenses, losses, claims, damages and liabilities required to be paid by
it under this Section 10(a) without the necessity of the Indemnified
Parties' first paying the same.
(b) Acquiring Fund will indemnify and hold harmless, out of the assets
of Acquiring Fund but no other assets, Acquired Fund, its trustees and
its officers (for purposes of this subparagraph, the "Indemnified
Parties") against any and all expenses, losses, claims, damages and
liabilities at any time imposed upon or reasonably incurred by any one
or more of the Indemnified Parties in connection with, arising out of,
or resulting from any claim, action, suit or proceeding in which any one
or more of the Indemnified Parties may be involved or with which any one
or more of the Indemnified Parties may be threatened by reason of any
untrue statement or alleged untrue statement of a material fact relating
to Acquiring Fund contained in the Registration Statement, the
Prospectus, the Proxy Statements, or any amendment or supplement to any
thereof, or arising out of, or based upon, the omission or alleged
omission to state in any of the foregoing a material fact relating to
Acquiring Fund required to be stated therein or necessary to make the
statements relating to Acquiring Fund therein not misleading, including
without limitation any amounts paid by any one or more of the
Indemnified Parties in a reasonable compromise or settlement of any such
claim, action, suit or proceeding, or threatened claim, action, suit or
proceeding made with the consent of Acquiring Fund. The Indemnified
Parties will notify Acquiring Fund in writing within ten days after the
receipt by any one or more of the Indemnified Parties of any notice of
legal process or any suit brought against or claim made against such
Indemnified Party as to any matters covered by this Section 10(b).
Acquiring Fund shall be entitled to participate at its own expense in
the defense of any claim, action, suit or proceeding covered by this
Section 10(b), or, if it so elects, to assume at its expense by counsel
satisfactory to the Indemnified Parties the defense of any such claim,
action, suit or proceeding, and, if Acquiring Fund elects to assume such
defense, the Indemnified Parties shall be entitled to participate in the
defense of any such claim, action, suit or proceeding at their own
expense. Acquiring Fund's obligation under this Section 10(b) to
indemnify and hold harmless the Indemnified Parties shall constitute a
guarantee of payment so that Acquiring Fund will pay in the first
instance any expenses, losses, claims, damages and liabilities required
to be paid by it under this Section 10(b) without the necessity of the
Indemnified Parties' first paying the same.
11. No broker, etc. Each of Acquired Fund and Acquiring Fund represents
that there is no person who has dealt with it who by reason of such
dealings is entitled to any broker's or finder's or other similar fee or
commission arising out of the transactions contemplated by this
Agreement.
12. Termination. Acquired Fund and Acquiring Fund may, by mutual
consent of their trustees, terminate this Agreement, and Acquired Fund
or Acquiring Fund, after consultation with counsel and by consent of
their trustees or an officer authorized by such trustees, may waive any
condition to their respective obligations hereunder. If the
transactions contemplated by this Agreement have not been substantially
completed by December 31, 2002, this Agreement shall automatically
terminate on that date unless a later date is agreed to by Acquired Fund
and Acquiring Fund.
13. Rule 145. Pursuant to Rule 145 under the 1933 Act, Acquiring Fund
will, in connection with the issuance of any Merger Shares to any person
who at the time of the transaction contemplated hereby is deemed to be
an affiliate of a party to the transaction pursuant to Rule 145(c),
cause to be affixed upon the certificates issued to such person (if any)
a legend as follows:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT TO XXXXXX
VOYAGER FUND II OR ITS PRINCIPAL UNDERWRITER UNLESS (I) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (II) IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO XXXXXX VOYAGER FUND II SUCH REGISTRATION IS NOT REQUIRED."
and, further, Acquiring Fund will issue stop transfer instructions to
Acquiring Fund's transfer agent with respect to such shares. Acquired
Fund will provide Acquiring Fund on the Exchange Date with the name of
any Acquired Fund shareholder who is to the knowledge of Acquired Fund
an affiliate of Acquired Fund on such date.
14. Covenants, etc. deemed material. All covenants, agreements,
representations and warranties made under this Agreement and any
certificates delivered pursuant to this Agreement shall be deemed to
have been material and relied upon by each of the parties,
notwithstanding any investigation made by them or on their behalf.
15. Sole agreement; amendments. This Agreement supersedes all previous
correspondence and oral communications between the parties regarding the
subject matter hereof, constitutes the only understanding with respect
to such subject matter, may not be changed except by a letter of
agreement signed by each party hereto, and shall be construed in
accordance with and governed by the laws of The Commonwealth of
Massachusetts.
16. Agreement and declaration of trust. Copies of the Agreements and
Declarations of Trust of Acquired Fund and Acquiring Fund are on file
with the Secretary of State of The Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed by the Trustees
of each Trust, respectively, as Trustees and not individually and that
the obligations of this instrument are not binding upon any of the
Trustees, officers or shareholders of Acquired Fund or Acquiring Fund
individually but are binding only upon the assets and property of
Acquired Fund and Acquiring Fund, respectively.
[The rest of this page is intentionally left blank.]
This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
XXXXXX VOYAGER FUND II
By: /s/ Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Treasurer
XXXXXX FUNDS TRUST
By: /s/ Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Treasurer
XXXXXX INVESTMENT MANAGEMENT, LLC
By: /s/ Xxxxxx X. Silver
Title: Senior Managing Director
