Exhibit 4.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 28th day of January, 2004, by RBC Funds, Inc. ("Acquiring Company"), a
Maryland corporation, with its principal place of business at 00 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, on behalf of RBC Large Cap
Equity Fund ("Acquiring Fund"), a separate series of Acquiring Company, and
Xxxxx X. Xxxxxx Growth Fund, Inc. ("Target Fund" and together with Acquiring
Fund, each a "Fund" and collectively the "Funds"), a Maryland corporation, with
its principal place of business at 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxxx 00000.
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"). The reorganization
("Reorganization") will consist of the transfer of all of the assets of Target
Fund to Acquiring Fund in exchange solely for Class S shares ($0.01 par value
per share) of Acquiring Fund (the "Acquiring Fund Shares"), the assumption by
Acquiring Fund of all of the liabilities of Target Fund and the distribution of
Acquiring Fund Shares to the shareholders of Target Fund in complete liquidation
of Target Fund as provided herein, all upon the terms and conditions hereinafter
set forth in this Agreement. All references in this Agreement to action taken by
Acquiring Fund shall be deemed to refer to action taken by Acquiring Company on
behalf of Acquiring Fund.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
I. TRANSFER OF ASSETS OF TARGET FUND TO ACQUIRING FUND IN EXCHANGE FOR ACQUIRING
FUND SHARES, THE ASSUMPTION OF ALL TARGET FUND LIABILITIES AND THE LIQUIDATION
OF TARGET FUND
A. Subject to the terms and conditions set forth herein and on the basis of
the representations and warranties contained herein, Target Fund agrees to
transfer to Acquiring Fund all of Target Fund's assets as set forth in section
1.2, and Acquiring Fund agrees in exchange therefor (i) to deliver to Target
Fund that number of full and fractional Acquiring Fund Shares determined by
dividing the value of Target Fund's assets net of any liabilities of Target
Fund, computed in the manner and as of the time and date set forth in section
2.1, by the net asset value of one Acquiring Fund Share, computed in the manner
and as of the time and date set forth in section 2.2; and (ii) to assume all of
the liabilities of Target Fund. All Acquiring Fund Shares delivered to Target
Fund shall be delivered at net asset value without a sales load, commission or
other similar fee being imposed. Such transactions shall take place at the
closing provided for in section 3.1 (the "Closing").
B. The assets of Target Fund to be acquired by Acquiring Fund (the
"Assets") shall consist of all assets, including, without limitation, all cash,
cash equivalents, securities, commodities and futures interests and dividends or
interest or other receivables that are owned by Target Fund and any deferred or
prepaid expenses shown on the unaudited statement of assets and liabilities of
such Target Fund prepared as of the effective time of the Closing in accordance
with generally accepted accounting principles ("GAAP") applied consistently with
those of Target Fund's most recent audited balance sheet. The Assets shall
constitute at least 90% of the fair market value of the net assets, and at least
70% of the fair market value of the gross assets, held by Target Fund
immediately before the Closing (excluding for these purposes assets used to pay
the dividends and other distributions paid pursuant to section 1.4).
C. Target Fund will endeavor to discharge all of its known liabilities and
obligations prior to the Closing Date (as defined in section 3.6).
D. On or as soon as practicable prior to the Closing Date (as defined in
section 3.6), Target Fund will declare and pay to its shareholders of record one
or more dividends and/or other distributions so that it will
have distributed all of its investment company taxable income (computed without
regard to any deduction for dividends paid) and realized net capital gain, if
any, for the current taxable year through the Closing Date.
E. Immediately after the transfer of Assets provided for in section 1.1,
Target Fund will distribute to Target Fund's shareholders of record (the "Target
Fund Shareholders"), determined as of the Valuation Time (as defined in section
2.1), on a pro rata basis, Acquiring Fund Shares received by Target Fund
pursuant to section 1.1 and will completely liquidate. Such distribution and
liquidation will be accomplished with respect to Target Fund by the transfer of
Acquiring Fund Shares then credited to the account of Target Fund on the books
of Acquiring Fund to open accounts on the share records of Acquiring Fund in the
names of Target Fund Shareholders. Acquiring Fund shall have no obligation to
inquire as to the validity, propriety or correctness of such records, but shall
assume that such transaction is valid, proper and correct. The aggregate net
asset value of the Acquiring Fund Shares to be so credited to the Target Fund
Shareholders shall be equal to the aggregate net asset value of Target Fund
shares owned by such shareholders as of the Valuation Time. All issued and
outstanding shares of Target Fund will simultaneously be cancelled on the books
of Target Fund, although share certificates representing interests in shares of
Target Fund will represent a number of Acquiring Fund Shares after the Closing
Date as determined in accordance with section 2.3. Acquiring Fund will not issue
certificates representing Acquiring Fund Shares in connection with such
exchange.
F. Ownership of Acquiring Fund Shares will be shown on the books of
Acquiring Fund. Shares of Acquiring Fund will be issued in the manner described
in Acquiring Fund's then-current prospectus and statement of additional
information.
G. Any reporting responsibility of Target Fund including, without
limitation, the responsibility for filing of regulatory reports, tax returns, or
other documents with the Securities and Exchange Commission (the "Commission"),
any state securities commission, and any federal, state or local tax authorities
or any other relevant regulatory authority, is and shall remain the
responsibility of Target Fund.
H. All books and records of Target Fund, including all books and records
required to be maintained under the Investment Company Act of 1940, as amended
(the "1940 Act"), and the rules and regulations thereunder, shall be available
to Acquiring Fund from and after the Closing Date and shall be turned over to
Acquiring Fund as soon as practicable following the Closing Date.
II. VALUATION
A. The value of the Assets shall be computed as of the close of regular
trading on the New York Stock Exchange (the "NYSE") on the Closing Date, as
defined in section 3.1 (the "Valuation Time") after the declaration and payment
of any dividends and/or other distributions on that date, using such valuation
procedures as are disclosed in the then-current prospectus and/or statement of
additional information for Acquiring Fund and as have been approved by its Board
of Directors, copies of which have been delivered to Target Fund.
B. The net asset value of an Acquiring Fund Share shall be the net asset
value per share computed as of the Valuation Time using the valuation procedures
referred to in section 2.1. Notwithstanding anything to the contrary contained
in this Agreement, in the event that, as of the Valuation Time, there are no
Acquiring Fund Shares issued and outstanding, then, for purposes of this
Agreement, the per share net asset value of an Acquiring Fund Share shall be
equal to the net asset value of one Class I Acquiring Fund share.
C. The number of Acquiring Fund Shares to be issued (including fractional
shares, if any) in exchange for the Assets shall be determined by dividing the
value of the Assets of Target Fund determined in accordance with section 2.1 by
the net asset value of one Acquiring Fund Share determined in accordance with
section 2.2.
D. All computations of value hereunder shall be made by or under the
direction of each Fund's respective accounting agent, if applicable, in
accordance with its regular practice and the requirements of the 1940 Act and
shall be subject to confirmation by each Fund's respective independent
accountants upon the reasonable request of the other Fund.
III. CLOSING AND CLOSING DATE
A. The Closing of the transactions contemplated by this Agreement shall be
March 31, 2004, or such later date as the parties may agree in writing (the
"Closing Date"). All acts taking place at the Closing shall be deemed to take
place simultaneously as of 4:00 p.m., Eastern time, on the Closing Date, unless
otherwise agreed to by the parties. The Closing shall be held at the offices of
Acquiring Company, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx
00000, or at such other place and time as the parties may agree.
B. Target Fund shall deliver to Acquiring Fund on the Closing Date a
schedule of Assets.
C. Target Fund shall direct Xxxxx Fargo Bank Minnesota, N.A., as custodian
for Target Fund, to deliver at the Closing a certificate of an authorized
officer stating that (a) the Assets shall have been delivered in proper form to
Xxxxx Fargo Bank Minnesota, N.A., custodian for Acquiring Fund, prior to or on
the Closing Date and (b) all necessary taxes in connection with the delivery of
the Assets, including all applicable federal and state stock transfer stamps, if
any, have been paid or provision for payment has been made. Target Fund's
portfolio securities represented by a certificate or other written instrument
shall be presented by the custodian for Target Fund to the custodian for
Acquiring Fund for examination no later than five business days preceding the
Closing Date and transferred and delivered by Target Fund as of the Closing Date
for the account of Acquiring Fund duly endorsed in proper form for transfer in
such condition as to constitute good delivery thereof. Target Fund's portfolio
securities and instruments deposited with a securities depository, as defined in
Rule 17f-4 under the 1940 Act, shall be delivered as of the Closing Date by book
entry in accordance with the customary practices of such depositories and the
custodian for Acquiring Fund. The cash to be transferred by Target Fund shall be
delivered by wire transfer of federal funds on the Closing Date.
D. Target Fund shall direct Boston Financial Data Services ("Transfer
Agent"), as transfer agent for Target Fund, to deliver at the Closing a
certificate of an authorized officer stating that its records contain the names
and addresses of Target Fund Shareholders and the number and percentage
ownership (to three decimal places) of outstanding Target Fund shares, as
applicable, owned by each such shareholder immediately prior to the Closing.
Acquiring Fund shall issue and deliver a confirmation evidencing Acquiring Fund
Shares to be credited on the Closing Date to Target Fund or provide evidence
satisfactory to Target Fund that such Acquiring Fund Shares have been credited
to that Target Fund's account on the books of Acquiring Fund. At the Closing,
each party shall deliver to the other such bills of sale, checks, assignments,
share certificates, if any, receipts or other documents as such other party or
its counsel may reasonably request to effect the transactions contemplated by
this Agreement.
E. In the event that immediately prior to the Valuation Time (a) the NYSE
or another primary trading market for portfolio securities of Acquiring Fund or
a Target Fund shall be closed to trading or trading thereupon shall be
restricted, or (b) trading or the reporting of trading thereupon or elsewhere
shall be disrupted so that, in the judgment of the Board members of either party
to this Agreement, accurate appraisal of the value of the net assets with
respect to the Acquiring Fund Shares or the shares of Target Fund is
impracticable, the Closing Date shall be postponed until the first business day
after the day when trading shall have been fully resumed and reporting shall
have been restored.
F. The liabilities of Target Fund shall include all of such Target Fund's
liabilities, debts, obligations, and duties of whatever kind or nature, whether
absolute, accrued, contingent, or otherwise, whether or not arising in the
ordinary course of business, whether or not determinable at the Closing Date,
and whether or not specifically referred to in this Agreement including but not
limited to any deferred compensation to such Target Fund's board members.
IV. REPRESENTATIONS AND WARRANTIES
A. Except as has been fully disclosed to Acquiring Fund prior to the date
of this Agreement in a written instrument executed by an appropriate officer of
Target Fund, Target Fund represents and warrants to Acquiring Fund as follows:
1. Target Fund is a corporation duly organized and validly existing
under the laws of the State of Maryland, with power under its Articles of
Incorporation, as amended and supplemented from time to time, to own all of its
Assets and to carry on its business as it is now being conducted and, subject to
approval of shareholders of Target Fund, to carry out this Agreement. Target
Fund is qualified to do business in all jurisdictions in which it is required to
be so qualified, except jurisdictions in which the failure to so qualify would
not reasonably be expected to have a material adverse effect on Target Fund.
Target Fund has all material federal, state and local authorizations necessary
to own all of its Assets and to carry on its business as now being conducted,
except authorizations that the failure to so obtain would not reasonably be
expected to have a material adverse effect on Target Fund;
2. Target Fund is registered with the Commission as an open-end
management investment company under the 1940 Act, and such registration is in
full force and effect and Target Fund is in compliance in all material respects
with the 1940 Act and the rules and regulations thereunder;
3. No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by Target Fund of the
transactions contemplated herein, except such as have been obtained under the
Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act
of 1934, as amended (the "1934 Act") and the 1940 Act and such as may be
required by state securities laws;
4. Target Fund is not, and the execution, delivery and performance of
this Agreement by Target Fund will not (i) result in a material violation of
Maryland law or of its Articles of Incorporation or By-Laws; (ii) result in a
material violation or breach of, or constitute a default under, any material
agreement, indenture, instrument, contract, lease or other undertaking to which
Target Fund is a party or by which it is bound, or the acceleration of any
obligation, or the imposition of any penalty, under any agreement, indenture,
instrument, contract, lease, judgment or decree to which Target Fund is a party
or by which it is bound; or (iii) result in the creation or imposition of any
lien, charge or encumbrance or any property or assets of Target Fund;
5. All material contracts or other commitments of Target Fund (other
than this Agreement and any contracts listed on Schedule A) will terminate
without liability to Target Fund on or prior to the Closing Date. Each contract
listed on Schedule A is a valid, binding and enforceable obligation of each
party thereto and the assignment by Target Fund to Acquiring Fund of each such
contract will not result in the termination of such contract, any breach or
default thereunder or the imposition of any penalty thereunder;
6. No material litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against Target Fund or any properties or assets held by it.
Target Fund knows of no facts that might form the basis for the institution of
such proceedings that would materially and adversely affect its business and 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 herein contemplated;
7. The Statement of Assets and Liabilities, Statement of Operations,
Statement of Changes in Net Assets and Financial Highlights of Target Fund at
and for the fiscal year ended June 30, 2003, have been audited by
PricewaterhouseCoopers LLP ("PwC"), and are in accordance with GAAP consistently
applied, and such statements (a copy of each of which has been furnished to
Acquiring Fund) present fairly, in all material respects, the financial position
of Target Fund as of such date in accordance with GAAP, and there are no known
contingent liabilities of Target Fund required to be reflected on a balance
sheet (including the notes thereto) in accordance with GAAP as of such date not
disclosed therein;
8. Since June 30, 2003, there has not been any material adverse change
in Target Fund's financial condition, assets, liabilities or business other than
changes occurring in the ordinary course of business, or any incurrence by
Target Fund of indebtedness maturing more than one year from the date such
indebtedness was incurred except as otherwise disclosed to and accepted in
writing by Acquiring Fund. For purposes of this subsection (g), a decline in net
asset value per share of Target Fund due to declines in market values of
securities in Target Fund's portfolio, the discharge of Target Fund liabilities,
or the redemption of Target Fund shares by Target Fund Shareholders shall not
constitute a material adverse change;
9. At the date hereof and at the Closing Date, all federal and other
tax returns and reports of Target Fund required by law to have been filed by
such dates (including any extensions) shall have been filed and are or will be
correct in all material respects, and all federal and other taxes shown as due
or required to be shown as due on said returns and reports shall have been paid
or provision shall have been made for the payment thereof, and, to the best of
Target Fund's knowledge, no such return is currently under audit and no
assessment has been asserted with respect to such returns;
10. For each taxable year of its operation (including the taxable year
ending on the Closing Date), Target Fund has met the requirements of Subchapter
M of the Code for qualification and treatment as a regulated investment company
and has elected to be treated as such, has been eligible to and has computed its
federal income tax under Section 852 of the Code, and will have distributed all
of its investment company taxable income and net capital gain (as defined in the
Code) that has accrued through the Closing Date;
11. All issued and outstanding shares of Target Fund (i) have been
offered and sold in every state and the District of Columbia in compliance in
all material respects with applicable registration requirements of the 1933 Act
and state securities laws, (ii) are, and on the Closing Date will be, duly and
validly issued and outstanding, fully paid and non-assessable and not subject to
preemptive or dissenter's rights, and (iii) will be held at the time of the
Closing by the persons and in the amounts set forth in the records of the
Transfer Agent, as provided in section 3.4. Target Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase
any of Target Fund shares, nor is there outstanding any security convertible
into any of Target Fund shares;
12. At the Closing Date, Target Fund will have good and marketable
title to the Assets to be transferred to Acquiring Fund pursuant to section 1.2
and full right, power and authority to sell, assign, transfer and deliver such
Assets hereunder free of any liens or other encumbrances, and upon delivery and
payment for such Assets, Acquiring Fund will acquire good and marketable title
thereto, subject to no restrictions on the full transfer thereof, including such
restrictions as might arise under the 1933 Act and the 1940 Act;
13. The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action on the
part of the Board members of Target Fund (including the determinations required
by Rule 17a-8(a) under the 1940 Act), and, subject to the approval of Target
Fund Shareholders, this Agreement constitutes a valid and binding obligation of
Target Fund, enforceable 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 and to
general equity principles;
14. The information to be furnished by Target Fund for use in
applications for orders, registration statements or proxy materials or for use
in any other document filed or to be filed with any federal, state or local
regulatory authority (including the National Association of Securities Dealers,
Inc. (the "NASD")), which may be necessary in connection with the transactions
contemplated hereby, shall be accurate and complete in all material respects and
shall comply in all material respects with federal securities and other laws and
regulations applicable thereto;
15. The current prospectus and statement of additional information of
Target Fund conform in all material respects to the applicable requirements of
the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and do not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not materially misleading; and
16. The Proxy Statement/Prospectus (as defined in Section 5.7), insofar
as it relates to Target Fund, will, on the effective date of the Registration
Statement and on the Closing Date, (i) comply in all material respects with the
provisions and Regulations of the 1933 Act, 1934 Act and 1940 Act, as
applicable, and (ii) not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
are made, not materially misleading; provided, however, that the representations
and warranties in this section shall not apply to statements in or omissions
from the Proxy Statement and the Registration Statement made in reliance upon
and in conformity with information that was furnished or should have been
furnished by Acquiring Fund for use therein.
B. Except as has been fully disclosed to Target Fund prior to the date of this
Agreement in a written instrument executed by an appropriate officer of
Acquiring Company, Acquiring Company, on behalf of Acquiring Fund, represents
and warrants to Target Fund as follows:
1. Acquiring Company is a corporation duly organized and validly
existing under the laws of the State of Maryland, with power under Acquiring
Company's Articles of Incorporation, as amended from time to time, to own all of
its Assets and to carry on its business as it is now being conducted. Acquiring
Fund is a separate series of Acquiring Company duly designated in accordance
with applicable provisions of Acquiring Company's Articles of Incorporation.
Acquiring Company and Acquiring Fund are qualified to do business in all
jurisdictions in which it is required to be so qualified, except jurisdictions
in which the failure to so qualify would not reasonably be expected to have a
material adverse effect on Acquiring Company or Acquiring Fund. Acquiring Fund
has all material federal, state and local authorizations necessary to own all of
the properties and assets and to carry on its business as now being conducted,
except authorizations that the failure to so obtain would not reasonably be
expected to have a material adverse effect on Acquiring Fund;
2. Acquiring Company is registered with the Commission as an open-end
management investment company under the 1940 Act, and such registration is in
full force and effect and Acquiring Fund is in compliance in all material
respects with the 1940 Act and the rules and regulations thereunder;
3. 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 by state
securities laws;
4. Acquiring Fund is not, and the execution, delivery and performance
of this Agreement by Acquiring Fund, will not (i) result in a material violation
of Maryland law or of its Articles of Incorporation or By-Laws; (ii) result in a
material violation or breach of, or constitute a default under, any material
agreement, indenture, instrument, contract , lease or other undertaking to which
Acquiring Fund is a party or by which it is bound, or the acceleration of any
obligation, or the imposition of any penalty, under any agreement, indenture,
instrument, contract, lease, judgment or decree to which Acquiring Fund is a
party or by which it is bound, or (iii) result in the creation or imposition of
any lien, charge or encumbrance or any property or assets of Acquiring Fund;
5. No material litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against Acquiring Fund or any properties or assets held by
it. Acquiring Fund knows of no facts that might form the basis for the
institution of such proceedings that would materially and adversely affect its
business and 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 herein
contemplated;
6. The Statement of Assets and Liabilities, Statement of Operations,
Statement of Changes in Net Assets, and Financial Highlights, and the Investment
Portfolio of Acquiring Fund at and for the fiscal year ended April 30, 2003,
have been audited by PricewaterhouseCoopers LLP ("PwC"), and are in accordance
with GAAP consistently applied, and such statements (a copy of each of which has
been furnished to Target Fund) present fairly, in all material respects, the
financial position of Acquiring Fund as of such date in accordance with GAAP,
and there are no known contingent liabilities of Acquiring Fund required to be
reflected on a balance sheet (including the notes thereto) in accordance with
GAAP as of such date not disclosed therein;
7. The Statement of Assets and Liabilities, Statement of Operations,
Statement of Changes in Net Assets and Financial Highlights at and for the
six-month period ended October 31, 2003 (unaudited) are, or will be when sent to
Acquiring Fund Shareholders in the regular course, in accordance with GAAP
consistently applied, and such statements (a copy of has or will be furnished to
Target Fund) present or will present fairly, in all material respects, the
financial position of Acquiring Fund as of such date in accordance with GAAP,
including any known contingent liabilities of Acquiring Fund required to be
reflected on a balance sheet in accordance with GAAP as of such date;
8. Since October 31, 2003, there has not been any material adverse
change in Acquiring Fund's financial condition, assets, liabilities or business
other than changes occurring in the ordinary course of business, or any
incurrence by Acquiring Fund of indebtedness maturing more than one year from
the date such indebtedness was incurred except as otherwise disclosed to and
accepted in writing by Target Fund. For purposes of this subsection (g), a
decline in net asset value per share of Acquiring Fund due to declines in market
values of securities in Acquiring Fund's portfolio, the discharge of Acquiring
Fund liabilities, or the redemption of Acquiring Fund shares by Acquiring Fund
shareholders shall not constitute a material adverse change;
9. At the date hereof and at the Closing Date, all federal and other
tax returns and reports of Acquiring Fund required by law to have been filed by
such dates (including any extensions) shall have been filed and are or will be
correct in all material respects, and all federal and other taxes shown as due
or required to be shown as due on said returns and reports shall have been paid
or provision shall have been made for the payment thereof, and, to the best of
Acquiring Fund's knowledge, no such return is currently under audit and no
assessment has been asserted with respect to such returns;
10. For each taxable year of its operation, Acquiring Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as a
regulated investment company and has elected to be treated as such, has been
eligible to and has computed its federal income tax under Section 852 of the
Code, and will do so for the taxable year including the Closing Date;
11. All issued and outstanding shares of Acquiring Fund (i) have been
offered and sold in every state and the District of Columbia in compliance in
all material respects with applicable registration requirements of the 1933 Act
and state securities laws and (ii) are, and on the Closing Date will be, duly
and validly issued and outstanding, fully paid and non-assessable, and not
subject to preemptive or dissenter's rights. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase
any of Acquiring Fund shares, nor is there outstanding any security convertible
into any of Acquiring Fund shares;
12. Acquiring Fund Shares to be issued and delivered to Target Fund,
for the account of Target Fund Shareholders, pursuant to the terms of this
Agreement, will at the Closing Date have been duly authorized and, when so
issued and delivered, will be duly and validly issued and outstanding Acquiring
Fund Shares, and will be fully paid and non-assessable;
13. At the Closing Date, Acquiring Fund will have good and marketable
title to Acquiring Fund's assets, free of any liens or other encumbrances;
14. The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action on the
part of the Board members of Acquiring Company (including the determinations
required by Rule 17a-8(a) under the 1940 Act), and this Agreement will
constitute a valid and binding obligation of Acquiring Company, on behalf of
Acquiring Fund, enforceable 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 and to
general equity principles;
15. The information to be furnished by Acquiring Fund for use in
applications for orders, registration statements or proxy materials or for use
in any other document filed or to be filed with any federal, state or local
regulatory authority (including the NASD), which may be necessary in connection
with the transactions contemplated hereby, shall be accurate and complete in all
material respects and shall comply in all material respects with federal
securities and other laws and regulations applicable thereto;
16. The current prospectus and statement of additional information of
Acquiring Fund conform in all material respects to the applicable requirements
of the 1933 Act and the 1940 Act and the rules and regulations of the Commission
thereunder and do not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not materially misleading;
17. The Proxy Statement/Prospectus to be included in the Registration
Statement, only insofar as it relates to Acquiring Fund, will, on the effective
date of the Registration Statement and on the Closing Date, (i) comply in all
material respects with the provisions and Regulations of the 1933 Act, 1934 Act,
and 1940 Act and (ii) not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which such
statements were made, not materially misleading; provided, however, that the
representations and warranties in this section shall not apply to statements in
or omissions from the Proxy Statement and the Registration Statement made in
reliance upon and in conformity with information that was furnished or should
have been furnished by Target Fund for use therein; and
18. Acquiring Fund agrees to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and such of
the state securities laws as may be necessary in order to continue its
operations after the Closing Date.
V. COVENANTS OF ACQUIRING FUND AND TARGET FUND
A. Each Fund covenants to operate its business in the ordinary course
between the date hereof and the Closing Date, it being understood that (a) such
ordinary course of business will include (i) the declaration and payment of
customary dividends and other distributions and (ii) such changes as are
contemplated by the Fund's normal operations; and (b) each Fund shall retain
exclusive control of the composition of its portfolio until the Closing Date. No
party shall take any action that would, or reasonably would be expected to,
result in any of its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect. Subject to the foregoing
covenants in this Section 5.1 and each Fund's respective investment objectives,
policies and restrictions, each Fund covenants and agrees to coordinate the
respective portfolios of Acquiring Fund and Target Fund from the date of the
Agreement up to and including the Closing Date in order that at Closing, when
the Assets are added to Acquiring Fund's portfolio, the resulting portfolio will
meet Acquiring Fund's investment objective, policies and restrictions, as set
forth in Acquiring Fund's Prospectus, a copy of which has been delivered to
Target Fund.
B. Upon reasonable notice, Acquiring Fund's officers and agents shall have
reasonable access to Target Fund's books and records necessary to maintain
current knowledge of Target Fund and to ensure that the representations and
warranties made by Target Fund are accurate.
C. Target Fund covenants to call a meeting of Target Fund Shareholders
entitled to vote thereon to consider and act upon this Agreement and to take all
other reasonable action necessary to obtain approval of the transactions
contemplated herein. Such meeting shall be scheduled for no later than June 30,
2004.
D. Target Fund covenants that Acquiring Fund Shares to be issued hereunder
are not being acquired for the purpose of making any distribution thereof other
than in accordance with the terms of this Agreement.
E. Target Fund covenants that it will assist Acquiring Fund in obtaining
such information as Acquiring Fund reasonably requests concerning the beneficial
ownership of Target Fund shares.
F. Subject to the provisions of this Agreement, each Fund will take, or
cause to be taken, all actions, and do or cause to be done, all things
reasonably necessary, proper and/or advisable to consummate and make effective
the transactions contemplated by this Agreement.
G. Each Fund covenants to prepare in compliance with the 1933 Act, the 1934
Act and the 1940 Act, the Registration Statement on Form N-14 (the "Registration
Statement") in connection with the meeting of Target Fund Shareholders to
consider approval of this Agreement and the transactions contemplated herein.
Acquiring Fund will file the Registration Statement, including a proxy
statement/prospectus (the "Proxy Statement/Prospectus"), with the Commission.
Target Fund will provide Acquiring Fund with information reasonably necessary
for the preparation of the Proxy Statement/Prospectus, in compliance in all
material respects with the 1933 Act, the 1934 Act and the 1940 Act.
H. Target Fund covenants that it will, from time to time, as and when
reasonably requested by Acquiring Fund, execute and deliver or cause to be
executed and delivered all such assignments and other instruments, and will take
or cause to be taken such further action as Acquiring Fund may reasonably deem
necessary or desirable in order to vest in and confirm Acquiring Fund's title to
and possession of all the assets and otherwise to carry out the intent and
purpose of this Agreement.
I. Acquiring Fund covenants to use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act and 1940 Act, and such of
the state securities laws as it deems appropriate in order to continue its
operations after the Closing Date and to consummate the transactions
contemplated herein; provided, however, that Acquiring Fund may take such
actions it reasonably deems advisable after the Closing Date as circumstances
change.
J. Acquiring Fund covenants that it will, from time to time, as and when
reasonably requested by Target Fund, execute and deliver or cause to be executed
and delivered all such assignments, assumption agreements, releases, and other
instruments, and will take or cause to be taken such further action, as Target
Fund may reasonably deem necessary or desirable in order to (i) vest and confirm
to Target Fund title to and possession of all Acquiring Fund shares to be
transferred to Target Fund pursuant to this Agreement and (ii) assume the
liabilities from Target Fund.
K. As soon as reasonably practicable after the Closing, Target Fund shall
make a liquidating distribution to its shareholders consisting of Acquiring Fund
Shares received at the Closing.
L. Each Fund shall use its reasonable best efforts to fulfill or obtain the
fulfillment of the conditions precedent to effect the transactions contemplated
by this Agreement as promptly as practicable.
M. The intention of the parties is that the Reorganization will qualify as
a reorganization within the meaning of Section 368(a) of the Code. Neither
Acquiring Company nor the Funds shall take any action, or cause any action to be
taken (including, without limitation, the filing of any tax return) that is
inconsistent with such treatment or results in the failure of a transaction to
qualify as a reorganization within the meaning of Section 368(a) of the Code. At
or prior to the Closing Date, Acquiring Company and each Fund will take such
action, or cause such action to be taken, as is reasonably necessary to enable
Dechert LLP to render the tax opinion contemplated herein in section 8.5.
N. At or immediately prior to the Closing, Target Fund will declare and pay
to its stockholders a dividend or other distribution in an amount large enough
so that it will have distributed all of its investment company taxable income
(computed without regard to any deduction for dividends paid) and realized net
capital gain, if any, for the current taxable year through the Closing Date.
VI. CONDITIONS PRECEDENT TO OBLIGATIONS OF TARGET FUND
With respect to the Reorganization, the obligations of Target Fund to
consummate the transactions provided for herein shall be subject, at its
election, to the performance by Acquiring Fund of all the obligations to be
performed by it hereunder on or before the Closing Date, and, in addition
thereto, the following further conditions:
A. All representations and warranties of Acquiring Company, on behalf of
Acquiring Fund, contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Closing Date, with
the same force and effect as if made on and as of the Closing Date; and there
shall be (i) no pending or threatened litigation brought by any person (other
than Target Fund, its adviser or any of their affiliates) against Acquiring Fund
or its investment adviser, Board members or officers arising out of this
Agreement and (ii) no facts known to Acquiring Fund which Acquiring Fund
reasonably believes might result in such litigation.
B. Acquiring Company, on behalf of Acquiring Fund, shall have delivered to
Target Fund on the Closing Date a certificate executed in its name by its
President or a Vice President, in a form reasonably satisfactory to Target Fund
and dated as of the Closing Date, to the effect that the representations and
warranties of Acquiring Company with respect to Acquiring Fund made in this
Agreement are true and correct on and as of the Closing Date, except as they may
be affected by the transactions contemplated by this Agreement, and as to such
other matters as Target Fund shall reasonably request.
C. Target Fund shall have received on the Closing Date an opinion of
counsel, in a form reasonably satisfactory to Target Fund, and dated as of the
Closing Date, to the effect that:
1. Acquiring Company has been duly formed and is an existing
corporation under the laws of the Sate of Maryland;
2. Acquiring Fund has the power to carry on its business as presently
conducted in accordance with the description thereof in Acquiring Company's
registration statement under the 1940 Act;
3. the Agreement has been duly authorized, executed and delivered by
Acquiring Company, on behalf of Acquiring Fund, and constitutes a valid and
legally binding obligation of Acquiring Company, on behalf of Acquiring Fund,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;
4. the execution and delivery of the Agreement did not, and the
exchange of Target Fund's assets for Acquiring Fund Shares pursuant to the
Agreement will not, violate Acquiring Company's Articles of Incorporation or
By-laws; and
5. to the knowledge of such counsel, and without any independent
investigation, (i) Acquiring Company is not subject to any ongoing or pending
litigation or other proceedings that is reasonably expected to have a materially
adverse effect on the operations of Acquiring Company, (ii) Acquiring Company is
duly registered as an investment company with the Commission and is not subject
to any stop order; and (iii)
all regulatory consents, authorizations, approvals or filings required to be
obtained or made by Acquiring Fund under the federal laws of the United States
or the laws of the State of Maryland for the exchange of Target Fund's assets
for Acquiring Fund Shares, pursuant to the Agreement, have been obtained or
made. In rendering such opinion, such counsel may (1) make assumptions regarding
the authenticity, genuineness, and/or conformity of documents and copies thereof
without independent verification thereof, (2) limit such opinion to applicable
federal and state law, and (3) define the word "knowledge" and related terms to
mean the knowledge of attorneys then with such counsel who have devoted
substantive attention to matters directly related to this Agreement and the
Reorganization.
The delivery of such opinion is conditioned upon receipt by counsel of customary
representations it shall reasonably request of Acquiring Company, on behalf of
Acquiring Fund and Target Fund, respectively.
D. Acquiring Fund shall have performed all of the covenants and complied
with all of the provisions required by this Agreement to be performed or
complied with by Acquiring Fund on or before the Closing Date.
VII. CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIRING FUND
With respect to the Reorganization, the obligations of Acquiring Fund to
consummate the transactions provided for herein shall be subject, at its
election, to the performance by Target Fund of all of the obligations to be
performed by it hereunder on or before the Closing Date and, in addition
thereto, the following further conditions:
A. All representations and warranties of Target Fund, contained in this
Agreement shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date, with the same force and effect as if
made on and as of the Closing Date; and there shall be (i) no pending or
threatened litigation brought by any person (other than Acquiring Fund, its
advisor or any of their affiliates) against Target Fund or its investment
adviser(s), Board members or officers arising out of this Agreement and (ii) no
facts known to Target Fund which Target Fund reasonably believes might result in
such litigation.
B. Target Fund shall have delivered to Acquiring Fund a statement of Target
Fund's Assets and liabilities as of the Closing Date, certified by the Treasurer
of Target Fund.
C. Target Fund shall have delivered to Acquiring Fund on the Closing Date a
certificate executed in its name by its President or a Vice President, in a form
reasonably satisfactory to Acquiring Fund, and dated as of the Closing Date, to
the effect that the representations and warranties of Target Fund made in this
Agreement are true and correct on and as of the Closing Date, except as they may
be affected by the transactions contemplated by this Agreement, and as to such
other matters as Acquiring Fund shall reasonably request.
D. Acquiring Fund shall have received on the Closing Date an opinion of
counsel, in a form reasonably satisfactory to Acquiring Fund, and dated as of
the Closing Date, to the effect that:
1. Target Fund has been duly formed and is an existing corporation
under the laws of the Sate of Maryland;
2. Target Fund has the power to carry on its business as presently
conducted in accordance with the description thereof in Target Fund's
registration statement under the 1940 Act;
3. the Agreement has been duly authorized, executed and delivered by
Target Fund, and constitutes a valid and legally binding obligation of Target
Fund, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;
4. the execution and delivery of the Agreement did not, and the
exchange of Target Fund's assets for Acquiring Fund Shares pursuant to the
Agreement will not, violate Target Fund's Articles of Incorporation or By-laws;
and
5. to the knowledge of such counsel, and without any independent
investigation, (i) Target Fund is not subject to any ongoing or pending
litigation that is reasonably expected to have a materially adverse effect on
the operations of Target Fund, (ii) Target Fund is duly registered as an
investment company with the Commission and is not subject to any stop order, and
(iii) all regulatory consents, authorizations, approvals or filings required to
be obtained or made by Target Fund under the federal laws of the United States
or the laws of the State of Maryland for the exchange of Target Fund's assets
for Acquiring Fund Shares, pursuant to the Agreement, have been obtained or
made. In rendering such opinion, such counsel may (1) make assumptions regarding
the authenticity, genuineness, and/or conformity of documents and copies thereof
without independent verification thereof, (2) limit such opinion to applicable
federal and state law, and (3) define the word "knowledge" and related terms to
mean the knowledge of attorneys then with such counsel who have devoted
substantive attention to matters directly related to this Agreement and the
Reorganization.
The delivery of such opinion is conditioned upon receipt by counsel of customary
representations it shall reasonably request of Acquiring Company, on behalf of
each of Acquiring Fund and Target Fund, respectively.
E. Target Fund shall have performed all of the covenants and complied with
all of the provisions required by this Agreement to be performed or complied
with by Target Fund on or before the Closing Date.
VIII. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIRING FUND AND TARGET
FUND
If any of the conditions set forth below have not been met on or before the
Closing Date with respect to Target Fund or Acquiring Fund, the other party to
this Agreement shall, at its option, not be required to consummate the
transactions contemplated by this Agreement:
A. This Agreement and the transactions contemplated herein, with respect to
Target Fund, shall have been approved by the requisite vote of the holders of
the outstanding shares of Target Fund in accordance with the provisions of
Target Fund's Articles of Incorporation and By-Laws, applicable Maryland law and
the 1940 Act, and certified copies of the resolutions evidencing such approval
shall have been delivered to Acquiring Fund. Notwithstanding anything herein to
the contrary, neither Acquiring Fund nor Target Fund may waive the conditions
set forth in this section 8.1.
B. On the Closing Date, no action, suit or other proceeding shall be
pending or to its knowledge threatened before any court or governmental agency
in which it is sought to restrain or prohibit, or obtain material damages or
other relief in connection with, this Agreement or the transactions contemplated
herein.
C. All consents of other parties and all other consents, orders and permits
of federal, state and local regulatory authorities deemed necessary by Acquiring
Fund or Target Fund to permit consummation, in all material respects, of the
transactions contemplated hereby 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 Acquiring Fund or Target
Fund, provided that either party hereto may for itself waive any of such
conditions.
D. The Registration Statement shall have become effective under the 1933
Act and no stop orders suspending the effectiveness thereof shall have been
issued and, to the best knowledge of the parties hereto, no investigation or
proceeding for that purpose shall have been instituted or be pending, threatened
or contemplated under the 1933 Act.
E. With respect to the Reorganization, the parties shall have received an
opinion of Dechert LLP addressed to each of Acquiring Fund and Target Fund, in a
form reasonably satisfactory to each such party, substantially to the effect
that, based upon certain facts, assumptions and representations of the parties,
for federal income tax purposes: (i) the transfer to Acquiring Fund of all of
the assets of Target Fund in exchange solely for Acquiring Fund Shares and the
assumption by Acquiring Fund of all of the liabilities of Target Fund, followed
by the distribution of such shares to Target Fund Shareholders in exchange for
their shares of Target Fund in complete liquidation of Target Fund, will
constitute a "reorganization" within the meaning of Section 368(a)(1) of the
Code, and Acquiring Fund and Target Fund will each be "a party to a
reorganization" within the meaning of Section 368(b) of the Code; (ii) no gain
or loss will be recognized by Target Fund upon the transfer of all of its assets
to Acquiring Fund in exchange solely for Acquiring Fund Shares and the
assumption by Acquiring Fund of all of the liabilities of Target Fund; (iii) the
basis of the assets of Target Fund in the hands of Acquiring Fund will be the
same as the basis of such assets of Target Fund immediately prior to the
transfer; (iv) the holding period of the assets of Target Fund in the hands of
Acquiring Fund will include the period during which such assets were held by
Target Fund; (v) no gain or loss will be recognized by Acquiring Fund upon the
receipt of the assets of Target Fund in exchange for Acquiring Fund Shares and
the assumption by Acquiring Fund of all of the liabilities of Target Fund; (vi)
no gain or loss will be recognized by Target Fund Shareholders upon the receipt
of Acquiring Fund Shares solely in exchange for their shares of Target Fund as
part of the transaction; (vii) the basis of Acquiring Fund Shares received by
Target Fund Shareholders will be the same as the basis of the shares of Target
Fund exchanged therefor; and (viii) the holding period of Acquiring Fund Shares
received by Target Fund Shareholders will include the holding period during
which the shares of Target Fund exchanged therefor were held, provided that at
the time of the exchange the shares of Target Fund were held as capital assets
in the hands of Target Fund Shareholders. The delivery of such opinion is
conditioned upon receipt by Dechert LLP of representations it shall request of
Acquiring Company and Target Fund. Notwithstanding anything herein to the
contrary, neither Acquiring Fund nor Target Fund may waive the condition set
forth in this section 8.5. No opinion will be expressed by Dechert LLP, however,
as to whether (a) any accrued market discount will be required to be recognized
as ordinary income or (b) any gain or loss will be recognized (i) by Target Fund
in connection with the transfer from Target Fund to Acquiring Fund of any
section 1256 contracts (as defined in Section 1256 of the Code) or (ii) by
Target Fund or Acquiring Fund in connection with any dispositions of assets by
such Fund prior to or following its respective Reorganization.
IX. INDEMNIFICATION
A. Acquiring Fund agrees to indemnify and hold harmless Target Fund and
each of such Target Fund's Board members 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 jointly and severally, Target Fund or any of its Board
members 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 Acquiring Fund of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
B. Target Fund agrees to indemnify and hold harmless Acquiring Fund and
each of Acquiring Fund's Board members 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 jointly and severally, Acquiring Fund or any of its Board members 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 Target Fund of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
X. FEES AND EXPENSES
A. Each of Acquiring Company, on behalf of Acquiring Fund, and Target Fund,
represents and warrants to the other that it has no obligations to pay any
brokers or finders fees in connection with the transactions provided for herein.
B. Voyageur Asset Management, Inc. ("Voyageur") will bear all the expenses
associated with the Reorganization, except that Acquiring Fund will bear all SEC
registration fees. Any such expenses which are so borne by Voyageur will be
solely and directly related to the Reorganization within the meaning of Revenue
Ruling 73-54, 1973-1 C.B. 187. Target Fund Shareholders will pay their own
expenses, if any, incurred in connection with the Reorganization.
XI. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
A. Each Fund agrees that no party has made any representation, warranty or
covenant not set forth herein and that this Agreement constitutes the entire
agreement between the parties.
B. Except as specified in the next sentence set forth in this section 11.2,
the representations, warranties and covenants contained in this Agreement or in
any document delivered pursuant hereto or in connection herewith shall not
survive the consummation of the transactions contemplated hereunder. The
covenants to be performed after the Closing and the obligations of each of
Acquiring Fund and Target Fund in sections 9.1 and 9.2 shall survive the
Closing.
XII. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby
may be abandoned by any party as it relates to the transactions applicable to
such party (i) by the mutual agreement of the parties, or (ii) by either party
if the Closing shall not have occurred on or before July 15, 2004, unless such
date is extended by mutual agreement of the parties, or (iii) by either party if
the other party shall have materially breached its obligations under this
Agreement or made a material and intentional misrepresentation herein or in
connection herewith, or (iv) upon the resolution of either of the Board of
Directors of Acquiring Company or the Board of Directors of Target Fund, at any
time prior to the Closing Date, if circumstances should develop that, in the
opinion of that Board, make proceeding with the Agreement inadvisable with
respect to Acquiring Company or Target Fund, respectively. In the event of any
such termination, this Agreement shall become void and there shall be no
liability hereunder on the part of any party or their respective Board members
or officers, except for any such material breach or intentional
misrepresentation, as to each of which all remedies at law or in equity of the
party adversely affected shall survive.
XIII. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as
may be mutually agreed upon in writing by any authorized officer of Target Fund
and any authorized officer of Acquiring Fund; provided, however, that following
the meeting of Target Fund Shareholders called by Target Fund pursuant to
section 5.3 of this Agreement, no such amendment may have the effect of changing
the provisions for determining the number of Acquiring Fund Shares to be issued
to Target Fund Shareholders under this Agreement to the detriment of such
shareholders without their further approval.
XIV. NOTICES
Any notice, report, statement or demand required or permitted by any provisions
of this Agreement shall be in writing and shall be deemed duly given if
delivered by hand (including by Federal Express or similar express courier) or
transmitted by facsimile or three days after being mailed by prepaid registered
or certified mail, return receipt requested, addressed to Target Fund, 00 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, with a copy to Dechert
LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxx, Esq., or to Acquiring Fund, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, with a copy to Dechert LLP, 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq., or to any other
address that Target Fund or Acquiring Fund shall have last designated by notice
to the other party.
XV. HEADINGS; COUNTERPARTS; ASSIGNMENT; LIMITATION OF LIABILITY
A. The Article and section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
B. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
C. This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, but 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 the shareholders of
Acquiring Fund and Target Fund and their respective successors and assigns, any
rights or remedies under or by reason of this Agreement.
D. Notwithstanding anything to the contrary contained in this Agreement,
the obligations, agreements, representations and warranties with respect to each
Fund shall constitute the obligations, agreements, representations and
warranties of that Fund only (the "Obligated Fund"), and in no event shall any
other series of Acquiring Company or the assets of any such series be held
liable with respect to the breach or other default by the Obligated Fund of its
obligations, agreements, representations and warranties as set forth herein.
E. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Maryland, without regard to its
principles of conflicts of laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by an authorized officer and its seal to be affixed
thereto and attested by its Secretary or Assistant Secretary.
Attest: RBC FUNDS, INC.,
on behalf of RBC Large Cap Equity Fund
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxxx Xxxxxxx
------------------------- --------------------
Secretary Its: President
Attest: XXXXX X. XXXXXX GROWTH FUND, INC.
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxxx Xxxxxxx
------------------------- --------------------
Secretary Its: President
