AGREEMENT AND PLAN OF REORGANIZATION
THIS
AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) is made as of this ___
day of __________, 2008, by and between Forum Funds (“Forum”), a
Delaware statutory trust, with its principal place of
business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000, with respect to the
Xxxxxxx Xxxxx Growth Fund and Xxxxxxx Xxxxx Solutions Fund, each a separate
series of Forum (each an “Acquired Fund” and, collectively, the “Acquired
Funds”), and Professionally Managed Portfolios (“PMP”), a Massachusetts business
trust, with its principal place of business at 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, with respect to the Xxxxxxx Xxxxx Growth Fund
and
Xxxxxxx Xxxxx Solutions Fund, each a separate series of PMP (each an “Acquiring
Fund” and, collectively, the “Acquiring Funds” and, collectively with the
Acquired Funds, the “Funds”).
This
Agreement is intended to be, and is adopted as, a Plan of Reorganization
within
the meaning of Section 368(a) of the United States Internal Revenue Code
of
1986, as amended (the “Code”). The reorganization will consist of:
(i) the transfer of all of the assets of each Acquired Fund attributable
to each
class of its shares in exchange for shares of beneficial interest, no par
value
per share, of the corresponding class of shares of the Acquiring Fund
(“Acquiring Fund Shares”) as set forth on Schedule A attached hereto; (ii) the
assumption by each Acquiring Fund of all known and disclosed liabilities
of the
corresponding Acquired Fund; and (iii) the distribution, after the Closing
Date
hereinafter referred to, of a class of Acquiring Fund Shares to the shareholders
of the corresponding class of shares of the Acquired Fund and the liquidation
of
each Acquired Fund as provided herein, all upon the terms and conditions
set
forth in this Agreement (the “Reorganization”). Notwithstanding
anything to the contrary contained herein, the obligations, agreements,
representations and warranties with respect to each Fund shall be the
obligations, agreements, representations and warranties of that Fund only,
and
in no event shall any other Fund or the assets of any other Fund be held
liable
with respect to the breach or other default by an obligated Fund of its
obligations, agreements, representations and warranties as set forth
herein.
WHEREAS,
each Acquiring Fund and each Acquired Fund are separate series of PMP and
Forum,
respectively, and PMP and Forum are open-end, registered management investment
companies, and each Acquired Fund owns securities that generally are assets
of
the character in which each Acquiring Fund is permitted to invest;
WHEREAS,
each Fund is authorized to issue its shares of beneficial interest;
WHEREAS,
the Trustees of Forum have determined that the Reorganization, with respect
to
each Acquired Fund, is in the best interests of each Acquired Fund’s
shareholders and that the interests of the existing shareholders of each
Acquired Fund will not be diluted as a result of the
Reorganization;
NOW,
THEREFORE, in consideration of the premises, covenants, and agreements
hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE
I
TRANSFER
OF ASSETS OF EACH ACQUIRED FUND IN EXCHANGE FOR ACQUIRING FUND
SHARES
AND THE ASSUMPTION OF EACH ACQUIRED FUND’S LIABILITIES AND
TERMINATION
OF EACH ACQUIRED FUND
1.1 THE
EXCHANGE. Subject to the terms and conditions contained herein and on
the basis of the representations and warranties contained herein, each Acquired
Fund agrees to sell, assign, convey, transfer and deliver all of its assets
and
known and disclosed liabilities, as set forth in paragraph 1.2, to the
corresponding Acquiring Fund. In exchange, each Acquiring Fund agrees
(i) to deliver to the corresponding Acquired Fund in exchange for the net
assets
attributable to each class of the Acquired Funds shares, a number of Acquiring
Fund shares of the corresponding class (including fractional shares, if any)
determined by dividing the value of such net assets, computed in the manner
and
as of the time and date set forth in paragraph 2.1, by the net asset value
of
one Acquiring Fund share of the corresponding class computed in the manner
and
as of the time and date set forth in paragraph 2.2 and (ii) to assume certain
liabilities of the corresponding Acquired Fund, as set forth in paragraph
1.3. Such transactions shall take place at the closing date provided
for in paragraph 3.1 (“Closing Date”).
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1.2 ASSETS
TO BE ACQUIRED. The assets of each Acquired Fund to be sold,
assigned, transferred and delivered to and acquired by the corresponding
Acquiring Fund shall consist of all assets and property of every kind and
nature, including, without limitation, all cash, securities, commodities,
interests in futures and dividends or interest receivables, receivables for
shares sold and other rights that are owned by the Acquired Fund on the Closing
Date, owned by the Acquired Fund and any deferred or prepaid expenses shown
as
an asset on the books of the Acquired Fund on the Closing Date.
Each
Acquired Fund has provided the corresponding Acquiring Fund with its most
recent
audited financial statements, which contain a list of all of the Acquired
Fund’s
assets as of the date of such statements. Each Acquired Fund hereby
represents that as of the date of the execution of this Agreement, there
have
been no changes in its financial position as reflected in such financial
statements other than those occurring in the ordinary course of business
in
connection with the purchase and sale of securities and the payment of normal
operating expenses and the payment of dividends, capital gains distributions
and
redemption proceeds to shareholders.
Each
Acquired Fund will, within a reasonable period of time prior to the Closing
Date, furnish the corresponding Acquiring Fund with a list of the Acquired
Fund’s portfolio securities and other investments. Each Acquiring
Fund will, within a reasonable time prior to the Closing Date, furnish the
corresponding Acquired Fund with a list of the securities, if any, on the
Acquired Fund’s list referred to above that do not conform to the Acquiring
Fund’s investment objectives, policies, and restrictions.
1.3 LIABILITIES
TO BE ASSUMED. Each Acquired Fund will endeavor in good faith to
discharge all of its known liabilities and obligations to the extent possible
prior to the Closing Date. Each Acquiring Fund shall assume only
those liabilities, expenses, costs, charges and reserves reflected on a
Statement of Assets and Liabilities of the corresponding Acquired Fund prepared
on behalf of the Acquired Fund, as of the Valuation Date (as defined in
paragraph 2.1), in accordance with generally accepted accounting principles
consistently applied from the prior audited period.
1.4 LIQUIDATION
AND DISTRIBUTION. On or as soon after the Closing Date as is
conveniently practicable (the “Liquidation Date”): (a) each Acquired Fund will
make a liquidating distribution, pro rata to its shareholders of record of
each
class of its shares (the “Acquired Fund Shareholders”), determined as of the
close of business on the Valuation Date (as defined in paragraph 2.1), of
all of
the corresponding class of the Acquiring Fund Shares received by each Acquired
Fund pursuant to paragraph 1.1; and (b) each Acquired Fund will thereupon
proceed to terminate as set forth in paragraph 1.8 below. Such
liquidation and distribution will be accomplished by the transfer of Acquiring
Fund Shares credited to the account of the corresponding Acquired Fund on
the
books of each Acquiring Fund to open accounts on the share records of each
Acquiring Fund in the name of the Acquired Fund Shareholders, and represent
the
respective pro rata number of corresponding Acquiring Fund Shares due
such shareholders. The aggregate net asset value of each class of
Acquiring Fund shares issued pursuant to this paragraph will equal the aggregate
net asset value of the corresponding class of Acquired Fund shares, each
as
determined on the Valuation Date using the valuation procedures set forth
below. All issued and outstanding shares of each Acquired Fund will
simultaneously be canceled on the books of the Acquired Fund. The
Acquiring Funds shall not issue certificates representing Acquiring Fund
Shares
in connection with such transfer. Each Acquired Fund Shareholder
shall have the right to receive any unpaid dividends or other distributions
that
were declared by the corresponding Acquired Fund before the Effective Time
(as
defined in paragraph 3.1) with respect to Acquired Fund shares that are held
of
record by each Acquired Fund Shareholder at the Effective Time on the Closing
Date.
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1.5 OWNERSHIP
OF SHARES. Ownership of Acquiring Fund Shares will be shown on the books
of the
Acquiring Funds’ transfer agent. Shares of each Acquiring Fund will
be issued simultaneously to the corresponding Acquired Fund, in an amount
equal
in value to the NAV of the Acquired Fund’s shares, to be distributed to
shareholders of the corresponding Acquired Fund.
1.6 TRANSFER
TAXES. Any transfer taxes payable upon the transfer of Acquiring Fund
Shares in a name other than the registered holder of the Acquired Fund shares
on
the books of each Acquired Fund as of that time shall, as a condition of
such
issuance and transfer, be paid by the person to whom such Acquiring Fund
Shares
are to be transferred.
1.7 REPORTING
RESPONSIBILITY. Any reporting responsibility of the Acquired Funds is
and shall remain the responsibility of the Acquired Funds, up to and including
the Closing Date, and such later date on which each Acquired Fund is
terminated.
1.8 TERMINATION. As
soon as practicable after the Closing Date, the Acquired Funds shall make
all
filings and take all other steps as shall be necessary and proper to effect
its
complete dissolution under Delaware law. After the Closing Date, the
Acquired Fund shall not conduct any business except in connection with its
dissolution.
ARTICLE
II
VALUATION
2.1 VALUATION
OF ASSETS. The value of each Acquired Fund’s assets to be acquired by the
corresponding Acquiring Fund hereunder shall be the value of such assets
computed as of the close of regular trading on the New York Stock Exchange
(“NYSE”) on the Closing Date (such time and date being hereinafter called a
“Valuation Date”), using the valuation procedures set forth in Forum’s Trust
Instrument and each Acquired Fund’s then current Prospectus and Statement of
Additional Information or such other valuation procedures as shall be mutually
agreed upon by the parties.
2.2 VALUATION
OF SHARES. The net asset value per share of Acquiring Fund Shares shall be
the
net asset value per share computed as of the close of normal trading on the
NYSE
on the Valuation Date, using the valuation procedures set forth in PMP’s Amended
and Restated Agreement and Declaration of Trust and the Acquiring Funds’ then
current Prospectus and Statement of Additional Information.
2.3 SHARES
TO BE ISSUED. The number of each class of Acquiring Fund’s shares to
be issued (including fractional shares) shall be equal in net asset value
to the
net asset value of each corresponding class of Acquired Fund’s shares then
outstanding. Upon each Acquired Fund’s liquidating distribution each
holder of shares of a class of an Acquired Fund will receive shares of the
corresponding class of an Acquiring Fund equal in net asset value to the
net
asset value of shares held by such holder immediately prior to such liquidating
distribution.
2.4 DETERMINATION
OF VALUE. Except with respect to each Acquired Fund’s assets, which
shall be valued by Citigroup Fund Services, LLC (“Citigroup”), all computations
of value shall be made by U.S. Bancorp Fund Services, LLC, in accordance
with
its regular practice in pricing the shares and assets of the Acquiring Funds.
Each Acquiring Fund and Acquired Fund agree, however, to use all commercially
reasonable efforts to resolve any material pricing differences between the
prices of portfolio securities determined in accordance with the pricing
policies and procedures of the Acquiring Funds and those determined in
accordance with the pricing policies and procedures of the Acquired
Funds.
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ARTICLE
III
CLOSING
AND CLOSING DATE
3.1 CLOSING
DATE. The closing (the “Closing”) will be on or about [April 30,
2008] or such other date(s) as the parties may agree to in
writing. All acts taking place at the Closing shall be deemed to take
place immediately prior to the Closing Date unless otherwise
provided. The Closing shall be held as of the close of business (the
“Effective Time”) at the offices of [Citigroup, 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, XX 00000], or at such other time and/or place as the parties may
agree.
3.2 CUSTODIAN’S
CERTIFICATE. The portfolio securities of the Acquired Funds shall be
made available by the Acquired Funds to the Acquiring Funds’ custodian, for
examination no later than five business days preceding the Closing
Date. Citibank, N.A., as custodian for the Acquired Funds, shall
deliver at the Closing a certificate of an authorized officer stating that:
(a)
the Acquired Funds’ portfolio securities, cash, and any other assets shall have
been delivered in proper form to the Acquiring Funds on the Closing Date;
and
(b) all necessary taxes, including all applicable federal and state stock
transfer stamps, if any, shall have been paid, or provision for payment shall
have been made, in conjunction with the delivery of portfolio securities
by each
Acquired Fund.
3.3 EFFECT
OF SUSPENSION IN TRADING. In the event that on the Valuation Date,
either: (a) the NYSE or another primary exchange on which the portfolio
securities of the Acquiring Funds or the Acquired Funds are purchased or
sold,
shall be closed to trading or trading on such exchange shall be restricted;
or
(b) trading or the reporting of trading on the NYSE or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of the
Acquiring Funds or the Acquired Funds is impracticable, the Valuation Date
shall
be postponed until the first business day after the day when trading is fully
resumed and reporting is restored.
3.4 TRANSFER
AGENT’S CERTIFICATE. Citigroup, as transfer agent for the Acquired
Funds as of the Closing Date, shall deliver at the Closing a certificate
of an
authorized officer stating that its records contain the names and addresses
of
Acquired Fund Shareholders, and the number and percentage ownership of
outstanding shares owned by each such shareholder immediately prior to the
Closing. The Acquiring Funds shall issue and deliver or cause U.S.
Bancorp Fund Services, LLC, its transfer agent, to issue and deliver a
confirmation evidencing Acquiring Fund Shares to be credited on the Closing
Date
to the Secretary of Forum or provide evidence satisfactory to the Acquired
Funds
that such Acquiring Fund Shares have been credited to the Acquired Funds’
account on the books of the Acquiring Funds. At the Closing, each
party shall deliver to the other such bills of sale, checks, assignments,
share
certificates, receipts and other documents, if any, as such other party or
its
counsel may reasonably request.
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ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
4.1 REPRESENTATIONS
OF THE ACQUIRED FUNDS. Forum and each Acquired Fund represent and
warrant to PMP and each Acquiring Fund as follows:
(a) The
Acquired Fund is a separate series of a statutory trust, duly organized,
validly
existing and in good standing under the laws of the State of
Delaware.
(b) The
Acquired Fund is a separate series of a Delaware statutory trust that is
registered as an open-end management investment company, and such Delaware
statutory trust’s registration with the U.S. Securities and Exchange Commission
(the “SEC”) as an investment company under the Investment Company Act of 1940
(the “1940 Act”) is in full force and effect.
(c) The
current prospectus and Statement of Additional Information of the Acquired
Fund
conform in all material respects to the applicable requirements of the
Securities Act of 1933 (the “1933 Act”) and the 1940 Act, and the rules and
regulations thereunder, and do not include any untrue statement of a material
fact or omit to state any material fact required to be stated or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
(d) The
Acquired Fund is not, and the execution, delivery, and performance of this
Agreement (subject to shareholder approval) will not result in the violation
of
any material provision of Forum’s Trust Instrument or By-Laws or of any material
agreement, indenture, instrument, contract, lease, or other undertaking to
which
the Acquired Fund is a party or by which it is bound.
(e) The
Acquired Fund has no material contracts or other commitments (other than
this
Agreement) that if terminated will result in material liability to the Acquired
Fund, except for liabilities, if any, to be discharged or reflected in the
Statement of Assets and Liabilities as provided in paragraph 1.3
hereof.
(f) Except
as
otherwise disclosed in writing to and accepted by the Acquiring Fund, no
litigation, administrative proceeding, or investigation of or before any
court
or governmental body is presently pending or to its knowledge threatened
against
the Acquired Fund or any of its properties or assets, which, if adversely
determined, would materially and adversely affect its financial condition,
the
conduct of its business, or the ability of the Acquired Fund to carry out
the
transactions contemplated by this Agreement. The Acquired Fund knows
of no facts that might form the basis for the institution of such proceedings
and is not a party to or subject to the provisions of any order, decree,
or
judgment of any court or governmental body that materially and adversely
affects
the Acquired Fund’s business or its ability to consummate the transactions
contemplated herein.
(g) The
financial statements of the Acquired Fund are in accordance with generally
accepted accounting principles, and such statements (copies of which have
been
furnished to the Acquiring Fund) fairly reflect the financial condition of
the
Acquired Fund as of December 31, 2007 in all
material respects as of that date, and there are no known contingent liabilities
of the Acquired Fund as of that date not disclosed in such
statements.
(h) Since
December 31, 2007, there have been no material adverse changes in the Acquired
Fund’s financial condition, assets, liabilities or business (other than changes
occurring in the ordinary course of business), or any incurrence by the Acquired
Fund of material indebtedness, except as otherwise disclosed to and accepted
by
the Acquiring Fund. For the purposes of this subparagraph (h),
distributions of net investment income and net realized capital gains, changes
in portfolio securities, changes in market value of portfolio securities,
or net
redemptions shall not constitute a material adverse change.
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(i) At
the
Closing Date, all federal and other tax returns and reports of the Acquired
Fund
required by law to be filed by such date (giving effect to extensions), shall
have been filed, and all federal and other taxes shown due on such returns
and
reports shall have been paid, or provision shall have been made for the payment
thereof. All of the Acquired Fund’s tax liabilities will have been
adequately provided for on its books. To the best of the Acquired
Fund’s knowledge, no such return is currently under audit, and no assessment has
been asserted with respect to such returns.
(j) The
Acquired Funds will provide their books and records to the Acquiring Funds
for
purposes of preparing any tax returns required by law to be filed after the
Closing Date.
(k) All
issued and outstanding shares of the Acquired Fund are, and at the Closing
Date,
will be duly and validly issued and outstanding, fully paid and non-assessable
by the Acquired Fund and will have been issued in compliance with all
applicable registration or qualification requirements of federal and state
securities laws. All of the issued and outstanding shares of the
Acquired Fund will, at the time of the Closing Date, be held by the persons
and
in the amounts set forth in the records of the Acquired Fund’s transfer agent as
provided in paragraph 3.4. The Acquired Fund has no outstanding
options, warrants, or other rights to subscribe for or purchase any of the
Acquired Fund shares, and has no outstanding securities convertible into
any of
the Acquired Fund shares.
(l) At
the
Closing Date, the Acquired Fund will have good and marketable title to the
Acquired Fund’s assets to be transferred to the Acquiring Fund pursuant to
paragraph 1.2, and full right, power, and authority to sell, assign, transfer,
and deliver such assets hereunder. Upon delivery and payment for such
assets, the Acquiring Fund will acquire good and marketable title, subject
to no
restrictions on the full transfer of such assets, including such restrictions
as
might arise under the 1933 Act, other than as disclosed to and accepted by
the
Acquiring Fund.
(m) The
execution, delivery, and performance of this Agreement has been duly authorized
by all necessary action on the part of the Acquired Fund. Subject to
approval by the Acquired Fund’s Shareholders, this Agreement constitutes a valid
and binding obligation of the Acquired Fund, enforceable in accordance with
its
terms, subject as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors’ rights and to
general equity principles.
(n) The
information to be furnished by the Acquired Fund for use in no-action letters,
applications for orders, registration statements, proxy materials, and other
documents that may be necessary in connection with the transactions contemplated
herein shall be accurate and complete in all material respects and shall
comply
in all material respects with federal securities laws and other laws and
regulations.
(o) From
the
effective date of the Registration Statement (as defined in paragraph 5.7),
through the time of the meeting of the Acquired Fund’s Shareholders and on the
Closing Date, any written information furnished by the Acquired Fund with
respect to the Acquired Fund for use in the Proxy Statement/Prospectus (as
defined in paragraph 5.7), the Registration Statement or any other materials
provided in connection with the Reorganization, does not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated or necessary to make the statements, in light of the
circumstances under which such statements were made, not materially
misleading.
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(p) The
Acquired Fund has elected to qualify and has qualified as a “regulated
investment company” (a “RIC”) under the Code as of and since its first taxable
period; has been a RIC under the Code at all times since the end of its first
taxable year when it so qualified; and qualifies and shall continue to qualify
as a RIC under the Code for its taxable year ending upon the Closing
Date. The Acquired Funds have not at any time since their inception
been liable for, and are not now liable for, any material income or excise
tax
pursuant to Section 852 or 4982 of the Code. The Acquired Funds have
duly filed all federal, state, local and foreign tax returns that are required
to have been filed, and all taxes of the Acquired Funds that are due and
payable
have been paid except for amounts that alone or in the aggregate would not
reasonably be expected to have a material adverse effect. The
Acquired Funds are in compliance in all material respects with applicable
regulations of the Internal Revenue Service pertaining to the reporting of
dividends and other distributions on and redemptions of its shares of beneficial
interest and to withholding in respect of dividends and other distributions
to
shareholders, and is not liable for any material penalties that could be
imposed
thereunder.
(q) The
Acquired Funds’ investment operations from inception to the date hereof have
been in compliance in all material respects with the investment policies
and
investment restrictions set forth in the Acquired Funds’ Prospectuses, except as
previously disclosed in writing to the Acquired Funds.
(r) The
Acquiring Fund Shares to be issued to the Acquired Funds pursuant to paragraph
1
will not be acquired for the purpose of making any distribution thereof other
than to the Acquired Funds’ shareholders as provided in paragraph
1.4.
(s) No
governmental consents, approvals, authorizations or filings are required
under
the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act
or Delaware law for the execution of this Agreement by Forum, for itself
and on
behalf of the Acquired Fund, except for the effectiveness of the Registration
Statement and such other consents, approvals, authorizations and filings
as have
been made or received, and such consents, approvals, authorizations and filings
as may be required subsequent to the Closing Date, it being understood, however,
that this Agreement and the transactions contemplated herein must be approved
by
the shareholders of the Acquired Fund as described in paragraph
5.2.
4.2 REPRESENTATIONS
OF THE ACQUIRING FUNDS. PMP and each Acquiring Fund represent and
warrant to Forum and each Acquired Fund as follows:
(a) The
Acquiring Fund is a separate series of a Massachusetts business trust, duly
organized, validly existing and in good standing under the laws of The
Commonwealth of Massachusetts.
(b) The
Acquiring Fund is registered as an open-end management investment company,
and
its registration with the SEC as an investment company under the 1940 Act
is in
full force and effect.
(c) The
current Prospectus and Statement of Additional Information of the Acquiring
Fund
conform in all material respects to the applicable requirements of the 1933
Act
and the 1940 Act and the rules and regulations 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 such statements therein, in light
of
the circumstances under which they were made, not misleading.
(d) The
Acquiring Fund is not, and the execution, delivery and performance of this
Agreement will not result in a violation of any material provision of PMP’s
Amended and Restated Agreement and Declaration of Trust or of any material
agreement, indenture, instrument, contract, lease, or other undertaking to
which
the Acquiring Fund is a party or by which it is bound.
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(e) Except
as otherwise disclosed in writing to the Acquired Fund and accepted by the
Acquired Fund, no litigation, administrative proceeding or investigation
of or
before any court or governmental body is presently pending, or to its knowledge,
threatened against the Acquiring Fund or any of its properties or assets,
which,
if adversely determined, would materially and adversely affect its financial
condition and the conduct of its business or the ability of the Acquiring
Fund
to carry out the transactions contemplated by this Agreement. The Acquiring
Fund
knows of no facts that might form the basis for the institution of such
proceedings and it is not a party to or subject to the provisions of any
order,
decree, or judgment of any court or governmental body that materially and
adversely affects its business or its ability to consummate the transaction
contemplated herein.
(f) There
shall be no issued and outstanding shares of the Acquiring Fund prior to
the
Closing Date other than those issued to a seed capital investor (which shall
be
an affiliate of the Acquiring Fund) in order to commence operations of the
Acquiring Fund;
(g) All
issued and outstanding Acquiring Fund Shares are, and at the Closing Date
will
be, duly authorized and validly issued and outstanding, fully paid and
non-assessable by the Acquiring Fund. The Acquiring Fund has no
outstanding options, warrants, or other rights to subscribe for or purchase
any
Acquiring Fund Shares, and there are no outstanding securities convertible
into
any Acquiring Fund Shares.
(h) The
execution, delivery, and performance of this Agreement has been duly authorized
by all necessary action on the part of the Acquiring Fund, and this Agreement
constitutes a valid and binding obligation of the Acquiring Fund, enforceable
in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors’
rights and to general equity principles.
(i) The
information to be furnished by the Acquiring Fund for use in no-action letters,
applications for orders, registration statements, proxy materials, and other
documents that may be necessary in connection with the transactions contemplated
herein shall be accurate and complete in all material respects and shall
comply
in all material respects with federal securities laws and other laws and
regulations.
(j) From
the effective date of the Registration Statement (as defined in paragraph
5.7),
through the time of the meeting of the Acquired Fund Shareholders and on
the
Closing Date, any written information furnished by PMP with respect to the
Acquiring Fund for use in the Proxy Statement/Prospectus (as defined
paragraph 5.7), the Registration Statement or any other materials provided
in
connection with the Reorganization, does not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be
stated or necessary to make the statements, in light of the circumstances
under
which such statements were made, not materially misleading.
(k) The
Acquiring Fund agrees to use all reasonable efforts to obtain the approvals
and
authorizations required by the 1933 Act, the 1940 Act, and any state blue
sky or
securities laws as it may deem appropriate in order to continue its operations
after the Closing Date.
(l) No
governmental consents, approvals, authorizations or filings are required
under
the 1933 Act, the 1934 Act, the 1940 Act or Massachusetts law for the execution
of this Agreement by PMP, for itself and on behalf of the Acquiring Fund,
or the
performance of the Agreement by PMP, for itself and on behalf of the Acquiring
Fund, except for the effectiveness of the Registration Statement and such
other
consents, approvals, authorizations and filings as have been made or received,
and except for such consents, approvals, authorizations and filings as may
be
required subsequent to the Closing Date.
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(m) The
Acquiring Fund intends to qualify as a RIC under the Code and will continue
to
qualify as a RIC through the end of its first taxable year.
4.3 REPRESENTATIONS
OF PMP. PMP represents and warrants as follows:
(a) PMP
has filed a post-effective amendment to its registration statement on Form
N-1A
for the purpose of registering the Acquiring Funds under the 1940
Act.
ARTICLE
V
COVENANTS
5.1 OPERATION
IN ORDINARY COURSE. Subject to paragraph 8.5, each of the Acquiring
Fund and the Acquired Fund will operate their businesses in the ordinary
course
between the date of this Agreement and the Closing Date, it being understood
that such ordinary course of business will include customary dividends and
distributions and shareholder redemptions in the case of the Acquired
Funds.
5.2 APPROVAL
OF SHAREHOLDERS. Forum will call a special meeting of each Acquired
Fund’s Shareholders to consider and act upon this Agreement and to take all
other action necessary to obtain approval of the transactions contemplated
herein.
5.3 ADDITIONAL
INFORMATION. The Acquired Funds will assist the Acquiring Funds in
obtaining such information as the Acquiring Funds reasonably requests concerning
the beneficial ownership of each Acquired Fund’s shares.
5.4 FURTHER
ACTION. Subject to the provisions of this Agreement, the Acquiring
Funds and the Acquired Funds will each take or cause to be taken, all action,
and do or cause to be done, all things reasonably necessary, proper or advisable
to consummate and make effective the transactions contemplated by this
Agreement, including any actions required to be taken after the Closing
Date.
5.5 STATEMENT
OF EARNINGS AND PROFITS. As promptly as practicable, but in any case
within sixty days after the applicable Closing Date, the Acquired Funds shall
furnish the Acquiring Funds, in such form as is reasonably satisfactory to
the
Acquiring Funds, a statement of the earnings and profits of the Acquired
Funds
for federal income tax purposes that will be carried over by the Acquiring
Funds
as a result of Section 381 of the Code, and which will be reviewed by Deloitte & Touche LLP and
certified by Forum’s Treasurer.
5.6 PREPARATION
OF FORM N-14 REGISTRATION STATEMENT. PMP will prepare and file with
the SEC a registration statement on Form N-14 (the “Registration Statement”),
under the 1933 Act, relating to the Acquiring Fund Shares, which, without
limitation, shall include a proxy statement of the Acquired Funds and the
prospectus of the Acquiring Funds relating to the transaction contemplated
by
this Agreement (the “Proxy Statement/Prospectus”) subject to approval of the
Acquired Funds’ Board, which shall not be unreasonably withheld. The
Registration Statement shall be in compliance with the 1933 Act, the 1934
Act
and the 1940 Act. The Acquired Funds will provide the Acquiring Funds
with the materials and information necessary to prepare the Proxy
Statement/Prospectus for inclusion in the Registration Statement in connection
with the meeting of each Acquired Fund’s Shareholders to consider the approval
of this Agreement and the transactions contemplated herein.
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5.7 INDEMNIFICATION.
(a) Each
Acquiring Fund (solely out of the Acquiring Fund’s assets and property,
including any amounts paid to the Acquiring Fund pursuant to any applicable
liability insurance policies or indemnification agreements) agrees to indemnify
and hold harmless the corresponding Acquired Fund and the Acquired Fund’s
Trustees and officers from and against any and all losses, claims, damages,
liabilities or expenses (including, without limitation, the payment of
reasonable legal fees and reasonable costs of investigation) to which the
Acquired Fund or any of its Trustees or officers may become subject, insofar
as
any such loss, claim, damage, liability or expense (or actions with respect
thereto) arises out of or is based on any breach by the Acquiring Fund of
any of
its representations, warranties, covenants or agreements set forth in this
Agreement.
(b) Each
Acquired Fund (solely out of the Acquired Fund’s assets and property, including
any amounts paid to the Acquired Fund pursuant to any applicable liability
insurance policies or indemnification agreements) agrees to indemnify and
hold
harmless the corresponding Acquiring Fund and the Acquiring Fund’s Trustees and
officers from and against any and all losses, claims, damages, liabilities
or
expenses (including, without limitation, the payment of reasonable legal
fees
and reasonable costs of investigation) to which the Acquiring Fund or any
of its
Trustees or officers may become subject, insofar as any such loss, claim
damage
liability or expense (or actions with respect thereto) arises out of or is
based
on any breach by the Acquired Fund of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUNDS
The
obligations of the Acquired Funds to consummate the transactions provided
for
herein shall be subject, at its election, to the performance by the Acquiring
Funds of all the obligations to be performed by them pursuant to this Agreement
on or before the Closing Date, and, in addition, subject to the following
conditions:
6.1 All
representations, covenants, and warranties of the Acquiring Funds contained
in
this Agreement shall be true and correct in all material respects as of the
date
hereof and as of the Closing Date, with the same force and effect as if made
on
and as of that Closing Date. The Acquiring Funds shall have delivered
to the Acquired Funds a certificate executed in each Acquiring Fund’s name by
PMP’s President or Vice President and its Treasurer or Assistant Treasurer, in
form and substance satisfactory to the Acquired Funds and dated as of the
Closing Date, to such effect and as to such other matters as the Acquired
Funds
shall reasonably request.
6.2 The
Acquired Funds shall have received on the Closing Date an opinion from Paul,
Hastings, Xxxxxxxx and Xxxxxx LLP, counsel to PMP, or Massachusetts counsel,
dated as of such Closing Date, in a form reasonably satisfactory to the Acquired
Funds, covering the following points:
(a) PMP
is a business trust validly existing and in good standing under the laws
of The
Commonwealth of Massachusetts, and, to such counsel’s knowledge, has the power
to own all of its properties and assets and to carry on its business as
presently conducted.
(b) PMP
is registered as an investment company under the 1940 Act, and, to such
counsel’s knowledge, such registration with the SEC is in full force and
effect.
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(c) This
Agreement has been duly authorized, executed, and delivered by PMP on behalf
of
the Acquiring Funds and, assuming due authorization, execution and delivery
of
this Agreement by the Acquired Funds, is a valid and binding obligation of
the
Acquiring Funds enforceable against the Acquiring Funds in accordance with
its
terms, subject as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and other laws relating to or affecting
creditors’ rights generally and to general equity principles.
(d) Assuming
that a consideration of not less than the net asset value of Acquiring Fund
Shares has been paid, Acquiring Fund Shares to be issued and delivered to
each
Acquired Fund, as provided by this Agreement, are duly authorized and upon
such
delivery will be legally issued and outstanding and fully paid and
non-assessable, and no shareholder of the Acquiring Funds has any preemptive
rights with respect to Acquiring Fund Shares.
(e) The
Registration Statement has been declared effective by the SEC and to such
counsel’s knowledge, no stop order under the 1933 Act pertaining thereto has
been issued, and to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the United
States or The Commonwealth of Massachusetts is required for consummation
by the
Acquiring Funds of the transactions contemplated herein, except as have been
obtained under the 1933 Act, the 1934 Act and the 1940 Act, and as may be
required under Massachusetts securities laws.
(f) The
execution and delivery of this Agreement did not, and the consummation of
the
transactions contemplated herein will not, result in a violation of PMP’s
Amended and Restated Agreement and Declaration of Trust.
(g) In
the ordinary course of such counsel’s representation of the Acquiring Funds, and
without having made any investigation, such counsel does not know of any
legal
or governmental proceedings (only insofar as they relate to the Acquiring
Funds)
existing on or before the effective date of the Registration Statement or
the
Closing Date that are required to be described in the Registration Statement
or
to be filed as exhibits to the Registration Statement that are not described
or
filed as required.
In
this
paragraph 6.2, references to the Proxy Statement/Prospectus include and relate
to only the text of such Proxy Statement/Prospectus and not to any exhibits
or
attachments thereto or to any documents incorporated by reference
therein.
6.3 The
post-effective amendment on Form N-1A filed by PMP with the SEC to create
the
Acquiring Funds has been declared effective by the Commission.
6.4 Subject
to Section 6.3 as of the Closing Date with respect to the Reorganization
of the
Acquired Funds, there shall have been no material change in the investment
objective, policies and restrictions nor any material change in the investment
management fees, fee levels payable pursuant to the shareholder servicing
plan,
other fees payable for services provided to the Acquiring Funds, fee waiver
or
expense reimbursement undertakings, or sales loads of the Acquiring Funds
from
those fee amounts, undertakings and sales load amounts of the Acquiring Funds
described in the Proxy Statement/Prospectus.
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ARTICLE
VII
CONDITIONS
PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUNDS
The
obligations of the Acquiring Funds to consummate the transactions provided
for
herein shall be subject, at its election, to the performance by each Acquired
Fund of all the obligations to be performed by each Acquired Fund pursuant
to
this Agreement, on or before the Closing Date and, in addition, shall be
subject
to the following conditions:
7.1 All
representations, covenants, and warranties of each Acquired Fund contained
in
this Agreement shall be true and correct in all material respects as of the
date
hereof and as of the Closing Date, with the same force and effect as if made
on
and as of such Closing Date. Each Acquired Fund shall have delivered
to each Acquiring Fund on such Closing Date a certificate executed in the
Acquired Fund’s name by Forum’s President or Vice President and the Treasurer or
Assistant Treasurer, in form and substance satisfactory to the Acquiring
Funds
and dated as of such Closing Date, to such effect and as to such other matters
as the Acquiring Funds shall reasonably request.
7.2 The
Acquiring Funds shall have received on the Closing Date an opinion from
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP, counsel to Forum, dated as
of such Closing Date, in a form reasonably satisfactory to the Acquiring
Funds,
covering the following points:
(a) Forum
Funds is a statutory trust duly organized and validly existing under the
laws of
the State of Delaware and has power to own all of its properties and assets
and
to carry on its business as presently conducted and described in the
registration statement on Form N-1A of Forum Funds, and each Acquired Fund
is a
separate series of Forum Funds constituted in accordance with the applicable
provisions of the 1940 Act and the Declaration of Trust and Bylaws of Forum
Funds;
(b) The
Agreement has been duly authorized, executed and delivered on behalf of Forum
Funds and each Acquired Fund and is the valid and binding obligation of Forum
Funds and each Acquired Fund enforceable against Forum Funds and each Acquired
Fund in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and other equitable
principles;
(c) Each
Acquired Fund has the power to sell, assign, transfer and deliver its assets
to
be transferred by it under the Agreement, and, upon consummation of the
transactions contemplated hereby, each Acquired Fund will have transferred
such
assets to its corresponding Acquiring Fund;
(d) The
execution and delivery of the Agreement did not, and the performance by Forum
Funds and each Acquired Fund of their obligations under the Agreement will
not,
violate the Declaration of Trust or Bylaws;
(e) No
consent, approval, authorization or order of any court or governmental authority
is required for the consummation by Forum Funds and each Acquired Fund of
the
transactions contemplated by the Agreement, except such as have been
obtained;
(f) There
are no legal or governmental proceedings relating to Forum Funds or any Acquired
Fund existing on or before the date of mailing of the Prospectus/ Proxy
Statement or the Closing Date required to be described in the Form N-14
Registration Statement which are not described as required;
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(g) Forum
Funds is registered with the SEC as an investment company under the 1940
Act;
and
(h) To
the knowledge of such counsel, except as has been disclosed in writing to
PMP,
no litigation or administrative proceeding or investigation of or before
any
court or governmental body is presently pending or threatened as to Forum
Funds
or any Acquired Fund or any of their properties or assets or any person whom
Forum Funds or any Acquired Fund may be obligated to indemnify in
connection with such litigation, proceeding or investigation, and each of
Forum
Funds and the Acquired Funds is not a party to or subject to the provisions
of
any order, decree or judgment of any court or governmental body, which
materially and adversely affects its business or its ability to consummate
the
transactions contemplated hereby.
7.3 Each
Acquired Fund shall have delivered to each Acquiring Fund a statement of
the
Acquired Fund’s assets and liabilities, together with a list of the Acquired
Fund’s portfolio securities showing the tax costs of such securities by lot and
the holding periods of such securities, as of the Closing Date, certified
by the
Treasurer of Forum.
7.4 The
Acquired Fund shall have furnished to the Acquiring Fund a certificate, signed
by the President or Vice-President and the Treasurer or any Assistant Treasurer
of the Acquired Fund, as to the adjusted tax basis in the hands of the Acquired
Funds of the securities delivered to the Acquiring Fund pursuant to this
Agreement.
ARTICLE
VIII
FURTHER
CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH
ACQUIRING
FUND AND ACQUIRED FUND
If
any of
the conditions set forth below do not exist on or before the Closing Date
with
respect to each Acquired Fund or each Acquiring Fund, the other party to
this
Agreement shall, at its option, not be required to consummate the transactions
contemplated by this Agreement:
8.1 This
Agreement and the transactions contemplated herein, with respect to each
Acquired Fund, shall have been approved by the requisite vote of the holders
of
the outstanding shares of such Acquired Fund in accordance with Delaware
law and
the provisions of Forum’s Trust Instrument and By-Laws. Neither
Acquired Fund shall be obligated to consummate this Agreement and the
transactions contemplated hereby if the other Acquired Fund has not obtained
the
requisite shareholder approval with respect to that Fund. Certified
copies of the resolutions evidencing such approval shall have been delivered
to
the respective Acquiring Fund. Notwithstanding anything herein to the
contrary, neither the Acquiring Funds nor the Acquired Funds may waive the
conditions set forth in this paragraph 8.1.
8.2 On
the Closing Date, the SEC shall not have issued an unfavorable report under
Section 25(b) of the 1940 Act, or instituted any proceeding seeking to
enjoin the consummation of the transactions contemplated by this Agreement
under
Section 25(c) of the 1940 Act. Furthermore, no action, suit or other
proceeding shall be threatened or pending before any court or governmental
agency in which it is sought to restrain or prohibit, or obtain damages or
other
relief in connection with this Agreement or the transactions contemplated
herein.
8.3 All
required consents of other parties and all other consents, orders, and permits
of federal, state and local regulatory authorities (including those of the
SEC
and of state blue sky securities authorities, including any necessary
“no-action” positions and exemptive orders from such federal and state
authorities) to permit consummation of the transactions contemplated herein
shall have been obtained, except where failure to obtain any such consent,
order, or permit would not involve a risk of a material adverse effect on
the
assets or properties of the Acquiring Funds or the Acquired Funds, provided
that
either party hereto may waive any such conditions for itself.
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8.4 The
Registration Statement shall have become effective under the 1933 Act and
no
stop orders suspending the effectiveness thereof shall have been
issued. To the best knowledge of the parties to this Agreement, no
investigation or proceeding for that purpose shall have been instituted or
be
pending, threatened or contemplated under the 1933 Act.
8.5 Each
Acquired Fund shall have declared and paid a dividend or dividends, which,
together with all previous such dividends, shall have the effect of distributing
to its shareholders all of the Acquired Fund’s net investment company taxable
income for all taxable periods ending on or prior to the Closing Date (computed
without regard to any deduction for dividends paid) and all of its net capital
gains realized in all taxable periods ending on or prior to such Closing
Date
(after reduction for any capital loss carry forward).
8.6 The
parties shall have received a favorable opinion of Paul, Hastings, Xxxxxxxx
& Xxxxxx LLP dated as of the Closing Date and addressed to the Acquiring
Funds and Acquired Funds substantially to the effect that for federal income
tax
purposes with respect to each Acquired Fund:
(a) The
transfer of all of the Acquired Fund’s assets in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the liabilities of the
Acquired Fund (followed by the distribution of Acquiring Fund Shares to the
Acquired Fund Shareholders and the termination of the Acquired Fund) will
constitute a “reorganization” within the meaning of Section 368(a) of the Code
and the Acquiring Fund and the Acquired Fund will each be a “party to a
reorganization” within the meaning of Section 368(b) of the Code.
(b) No
gain or loss will be recognized by the Acquiring Fund upon the receipt of
the
assets of the Acquired Fund solely in exchange for Acquiring Fund Shares
and the
assumption by the Acquiring Fund of the liabilities of the Acquired
Fund.
(c) No
gain or loss will be recognized by the Acquired Fund upon the transfer of
the
Acquired Fund’s assets to the Acquiring Fund in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the liabilities of the
Acquired Fund or upon the distribution (whether actual or constructive) of
Acquiring Fund Shares to the Acquired Fund’s Shareholders in exchange for such
shareholders’ shares of the Acquired Fund.
(d) No
gain or loss will be recognized by the Acquired Fund’s Shareholders upon the
exchange of their Acquired Fund shares for Acquiring Fund Shares in the
Reorganization.
(e) The
aggregate tax basis for Acquiring Fund Shares received by each of the Acquired
Fund’s Shareholders pursuant to the Reorganization will be the same as the
aggregate tax basis of the Acquired Fund shares exchanged therefor by such
shareholder. The holding period of Acquiring Fund Shares to be
received by each of the Acquired Fund’s Shareholders will include the period
during which the Acquired Fund shares exchanged therefore were held by such
shareholder, provided the Acquired Fund shares are held as capital assets
at the
time of the Reorganization.
(f) The
tax basis of the Acquired Fund’s assets acquired by the Acquiring Fund will be
the same as the tax basis of such assets to the Acquired Fund immediately
prior
to the Reorganization. The holding period of the assets of the
Acquired Fund in the hands of the Acquiring Fund will include the period
during
which those assets were held by the Acquired Fund.
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(g) The
Acquiring Fund will succeed to and take into account the items of the Acquired
Fund described in Section 381(c) of the Code, subject to any applicable
conditions and limitations specified in Sections 381, 382, 383 and 384 of
the
Code and the regulations thereunder.
Such
opinion shall be based on customary assumptions and such representations
as
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP may reasonably request, and each
Acquired Fund and Acquiring Fund will cooperate to make and certify the accuracy
of such representations. Notwithstanding anything herein to the
contrary, neither the Acquiring Funds nor the Acquired Funds may waive the
conditions set forth in this paragraph 8.6.
ARTICLE
IX
EXPENSES
9.1 Except
as otherwise provided for herein, U.S. Bancorp Fund Services, LLC, or an
affiliate thereof, shall bear all expenses of the transactions contemplated
by
this Agreement. Such expenses include, without limitation: (a)
expenses associated with the preparation and filing of the Registration
Statement/Proxy Statement on Form N-14 under the 1933 Act covering Acquiring
Fund Shares to be issued pursuant to the provisions of this Agreement; (b)
postage; (c) printing; (d) accounting fees; (e) audit and legal fees, including
reasonable fees for this transaction of the Acquired Funds’ counsel and counsel
of the Acquired Funds’ Independent Trustees; and (f) solicitation costs of the
transactions. U.S. Bancorp Fund Services, LLC, or an affiliate
thereof, shall remain liable for expenses, regardless of whether the
transactions contemplated by this Agreement occur, and this Section 9.1 shall
survive the Closing and any termination of this Agreement, pursuant to paragraph
11.1.
ARTICLE
X
ENTIRE
AGREEMENT; SURVIVAL
10.1 PMP,
on behalf of the Acquiring Funds, and Forum, on behalf of the Acquired Funds,
agrees that neither party has made to the other party any representation,
warranty and/or covenant not set forth herein and that this Agreement
constitutes the entire agreement between the parties.
10.2 The
representations, warranties, and covenants contained in this Agreement or
in any
document delivered pursuant to or in connection with this Agreement, shall
survive the consummation of the transactions contemplated
hereunder. The covenants to be performed after the Closing Date, and
the obligations of the Acquiring Funds, shall continue in effect beyond the
consummation of the transactions contemplated hereunder.
CONFIDENTIALITY
Each
Acquiring Fund agrees to treat confidentially and as proprietary information
of
the other Fund all records and other information, including any information
relating to portfolio holdings, of such Fund and not to use such records
and
information for any purpose other than the performance of its duties under
this
Agreement; provided, however, that after prior notification of and written
approval by such Fund (which approval shall not be withheld if the other
Fund
would be exposed to civil or criminal contempt proceedings for failure to
comply
when requested to divulge such information by duly constituted authorities
having proper jurisdiction, and which approval shall not be withheld
unreasonably in any other circumstance), a Fund may disclose such records
and/or
information as so approved.
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ARTICLE
XI
TERMINATION
11.1 This
Agreement may be terminated by the mutual agreement of PMP and
Forum. In addition, either PMP or Forum may at its option terminate
this Agreement at or prior to the Closing Date due to:
(a) a
breach by the other of any representation, warranty, or agreement contained
herein to be performed at or prior to the Closing Date, if not cured within
30
days;
(b) a
condition herein expressed to be precedent to the obligations of the terminating
party that has not been met and it reasonably appears that it will not or
cannot
be met; or
(c) a
determination by the party’s Board of Trustees, as appropriate, that the
consummation of the transactions contemplated herein is not in the best interest
of the party, and to give notice to the other party hereto.
11.2 In
the event of any such termination, in the absence of willful default, there
shall be no liability for damages on the part of either the Acquiring Funds,
the
Acquired Funds, PMP, Forum, or the respective Trustees or officers to the
other
party or its Trustees or officers, but paragraph 9.1 shall continue to
apply.
ARTICLE
XII
AMENDMENTS
12.1 This
Agreement may be amended, modified, or supplemented in such manner as may
be
mutually agreed upon in writing by the authorized officers of the Acquired
Funds
and the Acquiring Funds; provided, however, that following the meeting of
each
Acquired Fund’s Shareholders called by each Acquired Fund pursuant to paragraph
5.2 of this Agreement, no such amendment may have the effect of changing
the
provisions to the detriment of such shareholders.
ARTICLE
XIII
HEADINGS;
COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION
OF LIABILITY
13.1 The
Article and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
13.2 This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original.
13.3 This
Agreement shall be governed by and construed in accordance with the laws
of the
The Commonwealth of Massachusetts, without giving effect to the conflicts
of
laws provisions thereof.
13.4 This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns, but, except as provided in this paragraph,
no
assignment or transfer hereof or of any rights or obligations hereunder shall
be
made by any party without the written consent of the other
party. Nothing herein expressed or implied is intended or shall be
construed to confer upon or give any person, firm, or corporation, other
than
the parties hereto and their respective successors and assigns, any rights
or
remedies under or by reason of this Agreement.
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13.5 It
is expressly agreed that the obligations of each Acquiring Fund hereunder
shall
not be binding upon any of the Trustees, shareholders, officers, agents,
or
employees of PMP personally, but shall bind only the trust property of each
Acquiring Fund, as provided in the Amended and Restated Agreement and
Declaration of Trust of PMP. The execution and delivery of this
Agreement have been authorized by the Trustees of PMP on behalf of the Acquiring
Fund and signed by authorized officers of PMP, acting as such. Such
authorization by such Trustees and such execution and delivery by such officers
shall not be deemed to have been made by any of them individually or to impose
any liability on any of them personally, but shall bind only the trust property
of the Acquiring Funds as provided in PMP’s Amended and Restated Agreement and
Declaration of Trust.
13.6 It
is expressly agreed that the obligations of each Acquired Fund hereunder
shall
not be binding upon any of the Trustees, shareholders, officers, agents,
or
employees of Forum personally, but shall bind only the trust property of
each
Acquired Fund, as provided in the Trust Instrument of Forum. The
execution and delivery of this Agreement have been authorized by the Trustees
of
Forum on behalf of the Acquired Funds and signed by authorized officers of
Forum, acting as such. Such authorization by such Trustees and such
execution and delivery by such officers shall not be deemed to have been
made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the trust property of the Acquired Funds as provided
in
Forum’s Trust Instrument.
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement, all as of
the
date first written above.
on
behalf of the Acquiring Funds
By:
Name:
Title: President
FORUM
FUNDS, on behalf of the Acquired Funds
By:
Name:
Title: President
U.S.
BANCORP FUND SERVICES, LLC with
respect
to Paragraph 9.1 only
By:
Name:
Title: President
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Schedule
A
Shareholders
of each share class of Acquired Fund will receive shares of the corresponding
class of
Acquiring
Fund:
|
Forum
Fund (Acquired Fund)
|
PMP
Fund (Acquiring Fund)
|
|
Xxxxxxx
Xxxxx Growth Fund – Investor Class
|
Xxxxxxx
Xxxxx Growth Fund – Investor Class
|
|
Xxxxxxx
Xxxxx Growth Fund – Institutional Class
|
Xxxxxxx
Xxxxx Growth Fund – Institutional Class
|
|
Xxxxxxx
Xxxxx Solutions Fund – Investor Class
|
Xxxxxxx
Xxxxx Solutions Fund – Investor
Class
|
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