For period ending December 31, 2001
Exhibit 77Q1(g)
File number 811-6637
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, made as of
this 14th day of September, 2001, by and between The Xxxxxxx
Funds (the "Trust"), a business trust created under the
laws of the State of Delaware, with its principal place of
business at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-1295, on behalf of its series, the High Yield Fund
(the "Xxxxxxx Fund"), and Xxxxxxx Managed Investments
Trust (the "PaineWebber Trust"), a business trust created
under the laws of the Commonwealth of Massachusetts, with
its principal place of business at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, on behalf of its series,
PaineWebber High Income Fund (the "PaineWebber Fund").
PLAN OF REORGANIZATION
The reorganization (hereinafter referred to as the
"Plan of Reorganization") will consist of (i) the
acquisition by the Trust on behalf of the Xxxxxxx Fund of
substantially all of the property, assets and goodwill of
the PaineWebber Fund, in exchange solely for shares of
beneficial interest, $0.001 par value, of (a) Xxxxxxx High
Yield Fund-Class A shares ("Xxxxxxx Fund Class A Shares"),
(b) Xxxxxxx High Yield Fund-Class B shares ("Xxxxxxx Fund
Class B Shares"), (c) Xxxxxxx High Yield Fund-Class C
shares ("Xxxxxxx Fund Class C Shares"), and (d) Xxxxxxx
High Yield Fund-Class Y shares ("Xxxxxxx Fund Class Y
Shares"), and the assumption by the Trust on behalf of the
Xxxxxxx Fund of all of the liabilities of the PaineWebber
Fund; (ii) the distribution of (a) Xxxxxxx Fund Class A
Shares to the shareholders of Class A shares of the
PaineWebber Fund ("PaineWebber Fund Class A Shares"), (b)
Xxxxxxx Fund Class B Shares to the shareholders of Class B
shares of the PaineWebber Fund ("PaineWebber Fund Class B
Shares"), (c) Xxxxxxx Fund Class C Shares to the
shareholders of Class C shares of the PaineWebber Fund
("PaineWebber Fund Class C Shares"), and (d) Xxxxxxx Fund
Class Y Shares to the shareholders of Class Y shares of the
PaineWebber Fund ("PaineWebber Fund Class Y Shares"),
according to their respective interests in complete
liquidation of the PaineWebber Fund; and (iii) the
dissolution of the PaineWebber Fund as soon as practicable
after the closing (as referenced in Section 3, hereof,
hereinafter called the "Closing"), all upon and subject to
the terms and conditions of this Agreement and Plan of
Reorganization ("Agreement") hereinafter set forth.
AGREEMENT
In order to consummate the Plan of Reorganization
and in consideration of the premises and of the covenants
and agreements hereinafter set forth, and intending to be
legally bound, the parties hereto covenant and agree as
follows:
1. Sale and Transfer of Assets and Liabilities,
Liquidation
and Dissolution of the PaineWebber Fund
(a) Subject to the terms and conditions of this
Agreement, and in reliance on the representations and
warranties of the Trust herein contained, and in
consideration of the delivery by the Trust of the number of
its shares of beneficial interest of the Xxxxxxx Fund
hereinafter provided, the PaineWebber Trust, on behalf of
the PaineWebber Fund, agrees that it will sell, convey,
transfer and deliver to the Trust, on behalf of the Xxxxxxx
Fund, at the Closing provided for in Section 3, all of the
liabilities, debts, obligations and duties of any nature,
whether accrued, absolute, contingent or otherwise
("Liabilities") and the assets of the PaineWebber Fund as
of the close of business (which hereinafter shall be, unless
otherwise noted, the regular close of business of the New
York Stock Exchange, Inc. ("NYSE")) ("Close of Business")
on the valuation date (as defined in Section 3 hereof,
hereinafter called the "Valuation Date"), free and clear
of all liens, encumbrances, and claims whatsoever (other
than shareholders' rights of redemption and such
restrictions as might arise under the Securities Act of
1933, as amended (the "1933 Act"), with respect to
privately placed or otherwise restricted securities that the
PaineWebber Fund may have acquired in the ordinary course of
business), except for cash, bank deposits, or cash
equivalent securities in an estimated amount necessary (1)
to pay the PaineWebber Fund's costs and expenses of carrying
out this Agreement (including, but not limited to, fees of
counsel and accountants, and expenses of its liquidation and
dissolution contemplated hereunder), which costs and
expenses shall be established on the books of the
PaineWebber Fund as liability reserves, (2) to discharge all
of the PaineWebber Fund's Liabilities on its books at the
Close of Business on the Valuation Date including, but not
limited to, its income dividends and capital gains
distributions, if any, payable for any period prior to, and
through, the Close of Business on the Valuation Date, and
excluding those liabilities and obligations that would
otherwise be discharged at a later date in the ordinary
course of business, and (3) to pay such contingent
liabilities as the trustees of the PaineWebber Trust shall
reasonably deem to exist against the PaineWebber Fund, if
any, at the Close of Business on the Valuation Date, for
which contingent and other appropriate liability reserves
shall be established on the books of the PaineWebber Fund
(hereinafter "Net Assets"). The PaineWebber Trust, on
behalf of the PaineWebber Fund, shall also retain any and
all rights that it may have over and against any person that
may have accrued up to and including the Close of Business
on the Valuation Date. The PaineWebber Trust agrees to use
commercially reasonable efforts to identify all of the
PaineWebber Fund's Liabilities prior to the Valuation Date
and to discharge all such known Liabilities on or prior to
the Valuation Date.
(b) Subject to the terms and conditions of this
Agreement, and in reliance on the representations and
warranties of the PaineWebber Trust herein contained, and in
consideration of such sale, conveyance, transfer, and
delivery, the Trust agrees at the Closing to assume the
Liabilities, on behalf of the Xxxxxxx Fund, and to deliver
to the PaineWebber Fund: (i) the number of Xxxxxxx Fund
Class A Shares, determined by dividing the net asset value
per share of Xxxxxxx Fund Class A Shares as of the Close of
Business on the Valuation Date by the net asset value per
share of PaineWebber Fund Class A Shares as of Close of
Business on the Valuation Date, and multiplying the result
by the number of outstanding shares of the PaineWebber Fund
Class A Shares as of Close of Business on the Valuation
Date; (ii) the number of Xxxxxxx Fund Class B Shares,
determined by dividing the net asset value per share of
Xxxxxxx Fund Class B Shares as of Close of Business on the
Valuation Date by the net asset value per share of
PaineWebber Fund Class B Shares as of Close of Business on
the Valuation Date, and multiplying the result by the number
of outstanding shares of PaineWebber Fund Class B Shares as
of Close of Business on the Valuation Date; (iii) the number
of Xxxxxxx Fund Class C Shares, determined by dividing the
net asset value per share of Xxxxxxx Fund Class C Shares as
of Close of Business on the Valuation Date by the net asset
value per share of PaineWebber Fund Class C Shares as of
Close of Business on the Valuation Date, and multiplying the
result by the number of outstanding shares of PaineWebber
Fund Class C Shares as of Close of Business on the Valuation
Date; and (iv) the number of Xxxxxxx Fund Class Y Shares,
determined by dividing the net asset value per share of
Xxxxxxx Fund Class Y Shares as of Close of Business on the
Valuation Date by the net asset value per share of
PaineWebber Fund Class Y Shares as of Close of Business on
the Valuation Date, and multiplying the result by the number
of outstanding shares of PaineWebber Fund Class Y Shares as
of Close of Business on the Valuation Date. All such values
shall be determined in the manner and as of the time set
forth in Section 2 hereof.
(c) As soon as practicable following the Closing,
the PaineWebber Fund shall dissolve and distribute pro rata
to its shareholders of record as of the Close of Business on
the Valuation Date, the shares of beneficial interest of the
Xxxxxxx Fund received by the PaineWebber Fund pursuant to
this Section 1. Such dissolution and distribution shall be
accomplished by the establishment of accounts on the share
records of the Xxxxxxx Fund of the type and in the amounts
due such shareholders pursuant to this Section 1 based on
their respective holdings of shares of the PaineWebber Fund
as of the Close of Business on the Valuation Date.
Fractional shares of beneficial interest of the Xxxxxxx Fund
shall be carried to the third decimal place. No
certificates representing shares of beneficial interest of
the Xxxxxxx Fund will be issued to shareholders of the
PaineWebber Fund.
(d) At the Closing, each shareholder of record of
the PaineWebber Fund as of the record date (the
"Distribution Record Date") with respect to any unpaid
dividends and other distributions that were declared prior
to the Closing, including any dividend or distribution
declared pursuant to Section 9(e) hereof, shall have the
right to receive such unpaid dividends and distributions
with respect to the shares of the PaineWebber Fund that such
person had on such Distribution Record Date.
2. Valuation
(a) The value of the PaineWebber Fund's Net
Assets to be acquired by the Xxxxxxx Fund hereunder shall be
computed as of the Close of Business on the Valuation Date
using the valuation procedures set forth in the PaineWebber
Fund's currently effective prospectus and statement of
additional information.
(b) The net asset value of a share of beneficial
interest of the Xxxxxxx Fund Class A Shares, the Xxxxxxx
Fund Class B Shares, the Xxxxxxx Fund Class C Shares and the
Xxxxxxx Fund Class Y Shares shall be determined to the
nearest full cent as of the Close of Business on the
Valuation Date, using the valuation procedures set forth in
the Xxxxxxx Fund's currently effective prospectus and
statement of additional information.
(c) The net asset value of a share of beneficial
interest of the PaineWebber Fund Class A Shares, PaineWebber
Fund Class B Shares, PaineWebber Fund Class C Shares, and
PaineWebber Fund Class Y Shares shall be determined to the
nearest full cent as of the Close of Business on the
Valuation Date, using the valuation procedures as set forth
in the PaineWebber Fund's currently effective prospectus and
statement of additional information.
3. Closing and Valuation Date
The Valuation Date shall be November 16, 2001, or
such later date as the parties may mutually agree. The
Closing shall take place at the principal office of Xxxxxxx
Advisors, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, at approximately 10:00 a.m. Eastern time on the
first business day following the Valuation Date.
Notwithstanding anything herein to the contrary, in the
event that on the Valuation Date (a) the NYSE shall be
closed to trading or trading thereon shall be restricted, or
(b) trading or the reporting of trading on such exchange or
elsewhere shall be disrupted so that, in the judgment of the
Trust or PaineWebber Trust, accurate appraisal of the value
of the net assets of the PaineWebber Fund or the Xxxxxxx
Fund is impracticable, the Valuation Date shall be postponed
until the first business day after the day when trading
shall have been fully resumed without restriction or
disruption, reporting shall have been restored and accurate
appraisal of the value of the net assets of the PaineWebber
Fund and the Xxxxxxx Fund is practicable in the judgment of
the Trust and PaineWebber Trust. The PaineWebber Trust
shall have provided for delivery as of the Closing of those
Net Assets of the PaineWebber Fund to be transferred to the
Xxxxxxx Fund's custodian, The Chase Manhattan Bank, 4 Chase
Metrotech Center, Brooklyn, New York 11245. Also, the
PaineWebber Trust shall deliver at the Closing a list of
names and addresses of the shareholders of record of
PaineWebber Fund Class A Shares, PaineWebber Fund Class B
Shares, PaineWebber Fund Class C Shares and PaineWebber Fund
Class Y Shares, and the number of shares of beneficial
interest of such classes owned by each such shareholder,
indicating thereon which such shares are represented by
outstanding certificates and which by book-entry accounts,
all as of the Close of Business on the Valuation Date,
certified by its transfer agent, or by its President or Vice
President to the best of their knowledge and belief. The
Trust shall issue and deliver a certificate or certificates
evidencing the shares of the Xxxxxxx Fund to be delivered at
the Closing to said transfer agent registered in such manner
as the PaineWebber Trust may request, or provide evidence
satisfactory to the PaineWebber Trust that such shares of
beneficial interest of the Xxxxxxx Fund have been registered
in an open account on the books of the Xxxxxxx Fund in such
manner as the PaineWebber Trust may request.
4. Representations and Warranties by the
PaineWebber Trust
The PaineWebber Trust represents and warrants to
the Trust that:
(a) The PaineWebber Trust is a business trust
created under the laws of the Commonwealth of Massachusetts
on November 21, 1986, and is validly existing and in good
standing under the laws of that Commonwealth. The
PaineWebber Trust, of which the PaineWebber Fund is a
diversified separate series, is duly registered under the
Investment Company Act of 1940, as amended (the "1940
Act"), as an open-end management investment company. Such
registration is in full force and effect as of the date
hereof and will be in full force and effect as of the
Closing and all of its shares sold have been sold pursuant
to an effective registration statement filed under the 1933
Act, except for any shares sold pursuant to the private
offering exemption for the purpose of raising the required
initial capital.
(b) The PaineWebber Trust is authorized to issue
an unlimited number of shares of beneficial interest of the
PaineWebber Fund, $0.001 par value. Each outstanding share
of the PaineWebber Fund is duly and validly issued, fully
paid, non-assessable and has full voting rights and, except
for any such shares sold pursuant to the private offering
exemption for purposes of raising the required initial
capital, is fully transferable.
(c) The financial statements appearing in the
PaineWebber Fund Annual Report to Shareholders for the
fiscal year ended November 30, 2000, audited by Xxxxx &
Young, LLP, copies of which have been delivered to the
Trust, fairly present the financial position of the
PaineWebber Fund as of the date indicated, and the results
of its operations for the period indicated, in conformity
with generally accepted accounting principles applied on a
consistent basis.
(d) The books and records of the PaineWebber Fund
made available to the Trust and/or its counsel are true and
correct in all material respects and contain no material
omissions with respect to the business and operations of the
PaineWebber Fund.
(e) The statement of assets and liabilities to be
furnished by the PaineWebber Trust as of the Close of
Business on the Valuation Date for the purpose of
determining the number of shares of beneficial interest of
the Xxxxxxx Fund to be issued pursuant to Section 1 hereof
will accurately reflect the Net Assets of the PaineWebber
Fund and outstanding shares of beneficial interest, as of
such date, in conformity with generally accepted accounting
principles applied on a consistent basis.
(f) At the Closing, it will have good and
marketable title to all of the securities and other assets
shown on the statement of assets and liabilities referred to
in subsection (e) above, free and clear of all liens or
encumbrances of any nature whatsoever except such
restrictions as might arise under the 1933 Act with respect
to privately placed or otherwise restricted securities that
it may have acquired in the ordinary course of business and
such imperfections of title or encumbrances as do not
materially detract from the value or use of the assets
subject thereto, or materially affect title thereto.
(g) The PaineWebber Trust has the necessary power
and authority to conduct its business and the business of
the PaineWebber Fund as such businesses are now being
conducted.
(h) The PaineWebber Trust is not a party to or
obligated under any provision of its Amended and Restated
Declaration of Trust, Restated By-laws, or any material
contract or any other material commitment or obligation, and
is not subject to any order or decree that would be violated
by its execution of or performance under this Agreement and
Plan of Reorganization.
(i) The PaineWebber Trust has full power and
authority to enter into and perform its obligations under
this Agreement, subject to approval of the Plan of
Reorganization by the PaineWebber Fund's shareholders.
Except as provided in the immediately preceding sentence,
the execution, delivery and performance of this Agreement
have been duly and validly authorized, executed and
delivered by it, and this Agreement constitutes its legal,
valid and binding obligation enforceable against it in
accordance with its terms, subject as to enforcement to the
effect of bankruptcy, insolvency, reorganization,
arrangement among creditors, moratorium, fraudulent transfer
or conveyance, and other similar laws of general
applicability relating to or affecting creditor's rights and
to general equity principles.
(j) Neither the PaineWebber Trust nor the
PaineWebber Fund is under the jurisdiction of a Court in a
Title 11 or similar case within the meaning of Section
368(a)(3)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
(k) The PaineWebber Trust does not have any
unamortized or unpaid organizational fees or expenses that
are allocable to the PaineWebber Fund.
(l) The PaineWebber Fund has since its inception
satisfied, will at the Closing satisfy, and consummation of
the transactions contemplated by this Agreement will not
cause it to fail to satisfy, for any period, the
requirements of Subchapter M of the Code relating to
qualification as a regulated investment company.
(m) The PaineWebber Trust, or its agents, (i)
holds a valid Form W-8BEN, Certificate of Foreign Status of
Beneficial Owner for United States Withholding (or other
appropriate series of Form W-8, as the case may be), or Form
W-9, Request for Taxpayer Identification Number and
Certification, for each PaineWebber Fund shareholder of
record, which Form W-8 or Form W-9 can be associated with
reportable payments made by the PaineWebber Fund to such
shareholder, and/or (ii) has otherwise timely instituted the
appropriate backup withholding procedures with respect to
such shareholder as provided by Section 3406 of the Code.
5. Representations and Warranties by the Trust
The Trust represents and warrants to the
PaineWebber Trust that:
(a) The Trust is a business trust created under
the laws of the State of Delaware on December 1, 1993, and
is validly existing and in good standing under the laws of
that State. The Trust, of which the Xxxxxxx Fund is a
diversified separate series of shares, is duly registered
under the 1940 Act, as an open-end management investment
company, such registration is in full force and effect as of
the date hereof or will be in full force and effect as of
the Closing and all of its shares sold have been sold
pursuant to an effective registration statement filed under
the 1933 Act, except for any shares sold pursuant to the
private offering exemption for the purpose of raising the
required initial capital.
(b) The Trust is authorized to issue an unlimited
number of shares of beneficial interest, $0.001 par value,
of the Xxxxxxx Fund. Each outstanding share of the Xxxxxxx
Fund is fully paid, non-assessable and has full voting
rights and, except for any shares sold pursuant to the
private offering exemption for purposes of raising the
required initial capital, is fully transferable. The shares
of beneficial interest of the Xxxxxxx Fund to be issued
pursuant to Section 1 hereof will, upon their issuance, be
duly and validly issued and fully paid and non-assessable,
fully transferable and have full voting rights.
(c) At the Closing, each class of shares of
beneficial interest of the Xxxxxxx Fund to be issued
pursuant to this Agreement will be eligible for offering to
the public in those states of the United States and
jurisdictions in which the corresponding class of shares of
the PaineWebber Fund are presently eligible for offering to
the public, and there are an unlimited number of shares
registered under the 1933 Act such that there is a
sufficient number of such shares to permit the transfers
contemplated by this Agreement to be consummated.
(d) The statement of assets and liabilities of
the Xxxxxxx Fund to be furnished by the Trust as of the
Close of Business on the Valuation Date for the purpose of
determining the number of shares of beneficial interest of
the Xxxxxxx Fund to be issued pursuant to Section 1 hereof
will accurately reflect the net assets of the Xxxxxxx Fund
and outstanding shares of beneficial interest, as of such
date, in conformity with generally accepted accounting
principles applied on a consistent basis.
(e) At the Closing, the Trust will have good and
marketable title to all of the securities and other assets
shown on the statement of assets and liabilities referred to
in subsection (d) above, free and clear of all liens or
encumbrances of any nature whatsoever, except such
restrictions as might arise under the 1933 Act with respect
to privately placed or otherwise restricted securities that
it may have acquired in the ordinary course of business and
such imperfections of title or encumbrances as do not
materially detract from the value or use of the assets
subject thereto, or materially affect title thereto.
(f) The Trust has the necessary power and
authority to conduct its business and the business of the
Xxxxxxx Fund as such businesses are now being conducted.
(g) The Trust is not a party to or obligated
under any provision of its Agreement and Declaration of
Trust, By-laws, or any material contract or any other
material commitment or obligation, and is not subject to any
order or decree that would be violated by its execution of
or performance under this Agreement.
(h) The Trust has full power and authority to
enter into and perform its obligations under this Agreement.
The execution, delivery and performance of this Agreement
have been duly and validly authorized, executed and
delivered by it, and this Agreement constitutes its legal,
valid and binding obligation enforceable against it in
accordance with its terms, subject to enforcement to the
effect of bankruptcy, insolvency, reorganization,
arrangements among creditors, moratorium, fraudulent
transfer or conveyance, and other similar laws of general
applicability relating to or affecting creditors rights and
to general equity principles.
(i) Neither the Trust nor the Xxxxxxx Fund is
under the jurisdiction of a Court in a Title 11 or similar
case within the meaning of Section 368(a)(3)(A) of the Code.
(j) The books and records of the Xxxxxxx Fund
made available to the PaineWebber Trust and/or its counsel
are true and correct in all material respects and contain no
material omissions with respect to the business and
operations of the Xxxxxxx Fund.
(k) The Xxxxxxx Fund has since its inception
satisfied, will at the Closing satisfy, and consummation of
the transactions contemplated by this Agreement will not
cause it to fail to satisfy, for any period, the
requirements of Subchapter M of the Code relating to
qualification as a regulated investment company.
6. Representations and Warranties by the
PaineWebber Trust
and the Trust
The PaineWebber Trust and the Trust each
represents and warrants to the other that:
(a) There are no legal, administrative or other
proceedings or investigations against it, or, to its
knowledge, threatened against it, that would materially
affect its financial condition or its ability to consummate
the transactions contemplated by this Agreement. It is not
charged with, or to its knowledge, threatened with, any
violation or investigation of any possible violation of any
provisions of any federal, state or local law or regulation
or administrative ruling relating to any aspect of its
business.
(b) There are no known actual or proposed
deficiency assessments with respect to any taxes payable by
it.
(c) It has duly and timely filed, on behalf of
the PaineWebber Fund or the Xxxxxxx Fund, as appropriate,
all Tax (as defined below) returns and reports (including
information returns), which are required to be filed by such
PaineWebber Fund or Xxxxxxx Fund, and all such returns and
reports accurately state the amount of Tax owed for the
periods covered by the returns, or, in the case of
information returns, the amount and character of income
required to be reported by such PaineWebber Fund or Xxxxxxx
Fund. On behalf of the PaineWebber Fund or the Xxxxxxx
Fund, as appropriate, it has paid or made provision and
properly accounted for all Taxes (as defined below) due or
properly shown to be due on such returns and reports. The
amounts set up as provisions for Taxes in the books and
records of the PaineWebber Fund or Xxxxxxx Fund, as
appropriate, as of the Close of Business on the Valuation
Date will, to the extent required by generally accepted
accounting principles, be sufficient for the payment of all
Taxes of any kind, whether accrued, due, absolute,
contingent or otherwise, which were or which may be payable
by the PaineWebber Fund or Xxxxxxx Fund, as appropriate, for
any periods or fiscal years prior to and including the Close
of Business on the Valuation Date, including all Taxes
imposed before or after the Close of Business on the
Valuation Date that are attributable to any such period or
fiscal year. No return filed by it, on behalf of the
PaineWebber Fund or Xxxxxxx Fund, as appropriate, is
currently being audited by the Internal Revenue Service or
by any state or local taxing authority. As used in this
Agreement, "Tax" or "Taxes" means all federal, state,
local and foreign (whether imposed by a country or political
subdivision or authority thereunder) income, gross receipts,
excise, sales, use, value added, employment, franchise,
profits, property, ad valorem or other taxes, stamp taxes
and duties, fees, assessments or charges, whether payable
directly or by withholding, together with any interest and
any penalties, additions to tax or additional amounts
imposed by any taxing authority (foreign or domestic) with
respect thereto. To its knowledge, there are no levies,
liens or encumbrances relating to Taxes existing, threatened
or pending with respect to the assets of the PaineWebber
Fund or Xxxxxxx Fund, as appropriate.
(d) All information provided to the PaineWebber
Trust by the Trust, and by the PaineWebber Trust to the
Trust, for inclusion in, or transmittal with, the Combined
Proxy Statement and Prospectus with respect to this
Agreement pursuant to which approval of the PaineWebber Fund
shareholders will be sought, shall not contain any untrue
statement of a material fact, or omit to state a material
fact required to be stated in order to make the statements
made therein, in light of the circumstances under which they
were made, not misleading.
(e) Except in the case of the PaineWebber Trust
with respect to the approval of the PaineWebber Fund's
shareholders of the Agreement, no consent, approval,
authorization or order of any court or governmental
authority, or of any other person or entity, is required for
the consummation of the transactions contemplated by this
Agreement, except as may be required by the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934
Act"), the 1940 Act, or state securities laws or Delaware
or Massachusetts business trust laws (including, in the case
of each of the foregoing, the rules and regulations
thereunder).
7. Covenants of the PaineWebber Trust
(a) The PaineWebber Trust covenants to operate
the business of the PaineWebber Fund as presently conducted
between the date hereof and the Closing.
(b) The PaineWebber Trust undertakes that the
PaineWebber Fund will not acquire the shares of beneficial
interest of the Xxxxxxx Fund for the purpose of making
distributions thereof other than to the PaineWebber Fund's
shareholders.
(c) The PaineWebber Trust covenants that by the
Closing, all of the PaineWebber Fund's federal and other Tax
returns and reports required by law to be filed on or before
such date shall have been filed and all federal and other
Taxes shown as due on said returns shall have either been
paid or adequate liability reserves shall have been provided
for the payment of such Taxes.
(d) The PaineWebber Trust will at the Closing
provide the Trust with a copy of the shareholder ledger
accounts, including, without limitation, the name, address
and taxpayer identification number of each shareholder of
record, the number of shares held by each shareholder, the
dividend reinvestment elections applicable to each
shareholder, and the backup withholding and nonresident
alien withholding certifications, notices or records on file
with the PaineWebber Trust with respect to each shareholder,
for all shareholders of record of the PaineWebber Fund
shares as of the Close of Business on the Valuation Date,
who are to become shareholders of the Xxxxxxx Fund as a
result of the transfer of assets that is the subject of this
Agreement, certified by its transfer agent or its President
or its Vice President to the best of their knowledge and
belief.
(e) The PaineWebber Trust agrees to mail to each
shareholder of record entitled to vote at the meeting of
shareholders at which action on this Agreement is to be
considered, in sufficient time to comply with requirements
as to notice thereof, a Combined Proxy Statement and
Prospectus that complies in all material respects with the
applicable provisions of Section 14(a) of the 1934 Act, and
Section 20(a) of the 1940 Act, and the rules and
regulations, respectively, thereunder.
(f) The PaineWebber Trust shall supply to the
Trust, at the Closing, the statement of the assets and
liabilities described in Section 4(e) of this Agreement in
conformity with the requirements described in such Section.
8. Covenants of the Trust
(a) The Trust covenants that the shares of
beneficial interest of the Xxxxxxx Fund to be issued and
delivered to the PaineWebber Fund pursuant to the terms of
Section 1 hereof shall have been duly authorized as of the
Closing and, when so issued and delivered, shall be
registered under the 1933 Act, duly and validly issued, and
fully paid and non-assessable, and no shareholder of the
Xxxxxxx Fund shall have any statutory or contractual
preemptive right of subscription or purchase in respect
thereof.
(b) The Trust covenants to operate the business
of the Xxxxxxx Fund as presently conducted between the date
hereof and the Closing.
(c) The Trust covenants that by the Closing, all
of the Xxxxxxx Fund's federal and other tax returns and
reports required by law to be filed on or before such date
shall have been filed and all federal and other taxes shown
as due on said returns shall have either been paid or
adequate liability reserves shall have been provided for the
payment of such taxes.
(d) The Trust shall supply to the PaineWebber
Trust, at the Closing, the statement of assets and
liabilities described in Section 5(d) of this Agreement in
conformity with the requirements described in such Section.
(e) The Trust will file with the United States
Securities and Exchange Commission (the "Commission") a
Registration Statement on Form N-14 under the 1933 Act
("Registration Statement"), relating to the shares of
beneficial interest of the Xxxxxxx Fund issuable hereunder,
and will use its best efforts to provide that such
Registration Statement becomes effective as promptly as
practicable. At the time such Registration Statement
becomes effective, it (i) will comply in all material
respects with the applicable provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations
promulgated thereunder; and (ii) will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time the
Registration Statement becomes effective, at the time of the
PaineWebber Fund's shareholders' meeting, and at the
Closing, the prospectus and statement of additional
information included in the Registration Statement will not
contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
9. Conditions Precedent to be Fulfilled by the
PaineWebber Trust
and the Trust
The obligations of the PaineWebber Trust and the
Trust to effectuate this Agreement and the Plan of
Reorganization hereunder shall be subject to the following
respective conditions:
(a) That (1) all the representations and
warranties of the other party contained herein shall be true
and correct in all material respects as of the Closing with
the same effect as though made as of and at such date; (2)
the other party shall have performed all obligations
required by this Agreement to be performed by it at or prior
to the Closing; and (3) the other party shall have delivered
to such party a certificate signed by the President or Vice
President and by the Secretary or equivalent officer to the
foregoing effect.
(b) That the other party shall have delivered to
such party a copy of the resolutions approving this
Agreement adopted by the other party's Board of Trustees,
certified by the Secretary or equivalent officer.
(c) That the Commission shall not have issued an
unfavorable advisory report under Section 25(b) of the 1940
Act, nor instituted nor threatened to institute any
proceeding seeking to enjoin the consummation of the
reorganization contemplated hereby under Section 25(c) of
the 1940 Act, and no other legal, administrative or other
proceeding shall be instituted or threatened that would
materially and adversely affect the financial condition of
either party or would prohibit the transactions contemplated
hereby.
(d) That this Agreement and the Plan of
Reorganization and the transactions contemplated hereby
shall have been approved by the appropriate action of the
shareholders of the PaineWebber Fund at an annual or special
meeting or any adjournment thereof.
(e) That the PaineWebber Fund shall have declared
a distribution or distributions prior to the Valuation Date
that, together with all previous distributions, shall have
the effect of distributing to its shareholders (i) all of
its ordinary income and all of its capital gain net income,
if any, for the period from the close of its last fiscal
year to the Close of Business on the Valuation Date, and
(ii) any undistributed ordinary income and capital gain net
income from any prior period. Capital gain net income has
the meaning given such term by Section 1222(9) of the Code.
(f) That prior to or at the Closing, the
PaineWebber Trust and the Trust shall receive an opinion
from Xxxxxxxx, Ronon, Xxxxxxx & Xxxxx, LLP ("Xxxxxxxx
Ronon") to the effect that, provided the acquisition
contemplated hereby is carried out in accordance with this
Agreement, the laws of the State of Delaware and the
Commonwealth of Massachusetts, and in accordance with
customary representations provided by the PaineWebber Trust
and the Trust in certificates delivered to Stradley Ronon:
(1) The acquisition by the Xxxxxxx Fund of
substantially all of the assets and the assumption of
the liabilities of the PaineWebber Fund in exchange
solely for the Xxxxxxx Fund shares to be issued
pursuant to Section 1 hereof, followed by the
distribution by the PaineWebber Fund to its
shareholders of the Xxxxxxx Fund shares in complete
liquidation of the PaineWebber Fund, will qualify as a
reorganization within the meaning of Section 368(a)(1)
of the Code, and the Xxxxxxx Fund and the PaineWebber
Fund will each be a "party to the reorganization"
within the meaning of Section 368(b) of the Code;
(2) No gain or loss will be recognized by
the PaineWebber Fund upon the transfer of substantially
all of its assets to and the assumption of the
liabilities by the Xxxxxxx Fund in exchange solely for
the voting shares of the Xxxxxxx Fund (to be issued in
accordance with Section 1 hereof) under Section 361(a)
and Section 357(a) of the Code;
(3) No gain or loss will be recognized by
the Xxxxxxx Fund upon the receipt by it of
substantially all of the assets and the assumption of
the liabilities of the PaineWebber Fund in exchange
solely for the voting shares of the Xxxxxxx Fund (to be
issued in accordance with Section 1 hereof) under
Section 1032(a) of the Code;
(4) No gain or loss will be recognized by
the PaineWebber Fund upon the distribution of the
Xxxxxxx Fund shares to the PaineWebber Fund
shareholders in accordance with Section 1 hereof in
liquidation of the PaineWebber Fund under Section
361(c)(1) of the Code;
(5) The basis of the assets of the
PaineWebber Fund received by the Xxxxxxx Fund will be
the same as the basis of such assets to the PaineWebber
Fund immediately prior to the exchange under Section
362(b) of the Code;
(6) The holding period of the assets of the
PaineWebber Fund received by the Xxxxxxx Fund will
include the period during which such assets were held
by the PaineWebber Fund under Section 1223(2) of the
Code;
(7) No gain or loss will be recognized by
the shareholders of the PaineWebber Fund upon the
exchange of their shares in the PaineWebber Fund for
the voting shares (including fractional shares to which
they may be entitled) of the Xxxxxxx Fund (to be issued
in accordance with Section 1 hereof) under Section
354(a) of the Code;
(8) The basis of the Xxxxxxx Fund shares
received by the PaineWebber Fund shareholders in
accordance with Section 1 hereof (including fractional
shares to which they may be entitled) will be the same
as the basis of the shares of the PaineWebber Fund
exchanged therefor under Section 358(a)(1) of the Code;
(9) The holding period of the Xxxxxxx Fund
shares received by the PaineWebber Fund's shareholders
in accordance with Section 1 hereof (including
fractional shares to which they may be entitled) will
include the holding period of the PaineWebber Fund's
shares surrendered in exchange therefor, provided that
the PaineWebber Fund shares were held as a capital
asset on the date of the Reorganization under Section
1223(l) of the Code; and
(10) The Xxxxxxx Fund will succeed to and
take into account as of the date of the transfer (as
defined in Section 1.381(b)-1(b) of the regulations
issued by the United States Treasury (the "Treasury
Regulations")) the items of the PaineWebber Fund
described in Section 381(c) of the Code, subject to the
conditions and limitations specified in Sections 381,
382, 383 and 384 of the Code, and the Treasury
Regulations.
(g) That the Trust shall have received an opinion
in form and substance reasonably satisfactory to it from
Xxxxxxxxxxx & Xxxxxxxx, LLP ("Xxxxxxxxxxx & Xxxxxxxx"),
counsel to the PaineWebber Trust, to the effect that,
subject in all respects to the effects of bankruptcy,
insolvency, arrangement among creditors, moratorium,
fraudulent transfer or conveyance, and other similar laws of
general applicability relating to or affecting creditor's
rights and to general equity principles:
(1) The PaineWebber Trust was created as a
business trust under the laws of the Commonwealth of
Massachusetts on November 21, 1986, and is validly
existing and in good standing under the laws of the
Commonwealth of Massachusetts;
(2) The PaineWebber Trust is authorized to
issue an unlimited number of shares of beneficial
interest, $0.001 par value, of the PaineWebber Trust
and of the PaineWebber Fund. Assuming that the initial
shares of beneficial interest of the PaineWebber Fund
were issued in accordance with the 1940 Act, and the
Amended and Restated Declaration of Trust and Revised
By-laws of the PaineWebber Trust, and that all other
such outstanding shares of the PaineWebber Fund were
sold, issued and paid for in accordance with the terms
of the PaineWebber Fund prospectus in effect at the
time of such sales, each such outstanding share is duly
and validly issued, fully paid, non-assessable, and
except for any shares sold pursuant to the private
offering exemption for purposes of raising the required
initial capital, is fully transferable and has full
voting rights;
(3) The PaineWebber Trust is an open-end
investment company of the management type registered as
such under the 1940 Act;
(4) Except as disclosed in the PaineWebber
Fund's currently effective prospectus, such counsel
does not know of any material suit, action, or legal or
administrative proceeding pending or threatened against
the PaineWebber Trust, the unfavorable outcome of which
would materially and adversely affect the PaineWebber
Trust or the PaineWebber Fund;
(5) To such counsel's knowledge, no consent,
approval, authorization or order of any court,
governmental authority or agency is required for the
consummation by the PaineWebber Trust of the
transactions contemplated by this Agreement, except
such as have been obtained under the 1933 Act, the 1934
Act, the 1940 Act, and Massachusetts laws (including,
in the case of each of the foregoing, the rules and
regulations thereunder) and such as may be required
under state securities laws;
(6) Neither the execution, delivery nor
performance of this Agreement by the PaineWebber Trust
violates any provision of its Amended and Restated
Declaration of Trust, its Revised By-laws, or the
provisions of any agreement or other instrument, known
to such counsel to which the PaineWebber Trust is a
party or by which the PaineWebber Trust is otherwise
bound; and
(7) This Agreement has been duly and validly
authorized, executed and delivered by the PaineWebber
Trust and represents the legal, valid and binding
obligation of the PaineWebber Trust and is enforceable
against the PaineWebber Trust in accordance with its
terms.
In giving the opinions set forth above,
Xxxxxxxxxxx & Xxxxxxxx may state that it is relying on
certificates of the officers of the PaineWebber Trust with
regard to matters of fact and certain certifications and
written statements of governmental officials with respect to
the good standing of the PaineWebber Trust.
(h) That the PaineWebber Trust shall have
received an opinion in form and substance reasonably
satisfactory to it from Stradley Ronon, counsel to the
Trust, to the effect that, subject in all respects to the
effects of bankruptcy, insolvency, arrangement among
creditors, moratorium, fraudulent transfer or conveyance,
and other similar laws of general applicability relating to
or affecting creditor's rights and to general equity
principles:
(1) The Trust was created as a business
trust under the laws of the State of Delaware on
December 1, 1993, and is validly existing and in good
standing under the laws of the State of Delaware;
(2) The Trust is authorized to issue an
unlimited number of shares of beneficial interest,
$0.001 par value. Assuming that the initial shares of
beneficial interest of the Xxxxxxx Fund were issued in
accordance with the 1940 Act and the Trust's Agreement
and Declaration of Trust and By-laws, and that all
other such outstanding shares of the Xxxxxxx Fund were
sold, issued and paid for in accordance with the terms
of the Xxxxxxx Fund's prospectus in effect at the time
of such sales, each such outstanding share is duly and
validly issued, fully paid, non-assessable, freely
transferable and has full voting rights;
(3) The Trust is an open-end investment
company of the management type registered as such under
the 1940 Act;
(4) Except as disclosed in the Xxxxxxx
Fund's currently effective prospectus, such counsel
does not know of any material suit, action, or legal or
administrative proceeding pending or threatened against
the Trust, the unfavorable outcome of which would
materially and adversely affect the Trust or the
Xxxxxxx Fund;
(5) The shares of beneficial interest of the
Xxxxxxx Fund to be issued pursuant to the terms of
Section 1 hereof have been duly authorized and, when
issued and delivered as provided in this Agreement,
will have been duly and validly issued and fully paid
and will be non-assessable by the Trust or the Xxxxxxx
Fund, and to such counsel's knowledge, no shareholder
has any preemptive right to subscription or purchase in
respect thereof;
(6) To such counsel's knowledge, no consent,
approval, authorization or order of any court,
governmental authority or agency is required for the
consummation by the Trust of the transactions
contemplated by this Agreement, except such as have
been obtained under the 1933 Act, the 1934 Act, the
1940 Act, and Delaware laws (including, in the case of
each of the foregoing, the rules and regulations
thereunder and such as may be required under state
securities laws);
(7) Neither the execution, delivery nor
performance of this Agreement by the Trust violates any
provision of its Agreement and Declaration of Trust,
its By-laws, or the provisions of any agreement or
other instrument, known to such counsel to which the
Trust is a party or by which the Trust is otherwise
bound; and
(8) This Agreement has been duly and validly
authorized, executed and delivered by the Trust and
represents the legal, valid and binding obligation of
the Trust and is enforceable against the Trust in
accordance with its terms.
In giving the opinions set forth above, Stradley
Ronon may state that it is relying on certificates of the
officers of the Trust with regard to matters of fact and
certain certifications and written statements of
governmental officials with respect to the good standing of
the Trust.
(i) That the Trust's Registration Statement with
respect to the shares of beneficial interest of the Xxxxxxx
Fund to be delivered to the PaineWebber Fund's shareholders
in accordance with Section 1 hereof shall have become
effective, and no stop order suspending the effectiveness of
the Registration Statement or any amendment or supplement
thereto, shall have been issued prior to the Closing or
shall be in effect at the Closing, and no proceedings for
the issuance of such an order shall be pending or threatened
on that date.
(j) That the shares of beneficial interest of the
Xxxxxxx Fund to be delivered in accordance with Section 1
hereof shall be eligible for sale by the Trust with each
state commission or agency with which such eligibility is
required in order to permit the shares lawfully to be
delivered to each PaineWebber Fund shareholder.
(k) That at the Closing, the PaineWebber Trust,
on behalf of the PaineWebber Fund, transfers to the Xxxxxxx
Fund aggregate Net Assets of the PaineWebber Fund comprising
at least 90% in fair market value of the total net assets
and 70% in fair market value of the total gross assets
recorded on the books of the PaineWebber Fund at the Close
of Business on the Valuation Date.
10. Brokerage Fees and Expenses; Other Agreements
(a) The PaineWebber Trust and the Trust each
represents and warrants to the other that there are no
broker or finders' fees payable by it in connection with the
transaction provided for herein.
(b) The expenses of entering into and carrying
out the provisions of this Agreement, whether or not
consummated, shall be borne by Xxxxxxx Advisors, Inc.
(c) Any other provision of this Agreement to the
contrary notwithstanding, any liability of the PaineWebber
Trust under this Agreement with respect to any series of the
PaineWebber Trust, or in connection with the transactions
contemplated herein with respect to any series of the
PaineWebber Trust, shall be discharged only out of the
assets of that series of the PaineWebber Trust, and no other
series of the PaineWebber Trust shall be liable with respect
thereto.
(d) Any other provision of this Agreement to the
contrary notwithstanding, any liability of the Trust under
this Agreement with respect to any series of the Trust, or
in connection with the transactions contemplated herein with
respect to any series of the Trust, shall be discharged only
out of the assets of that series of the Trust, and no other
series of the Trust shall be liable with respect thereto.
11. Indemnification by the PaineWebber Trust and
the PaineWebber Fund
The PaineWebber Trust and the PaineWebber Fund
hereby agree to indemnify and hold the Trust and the Xxxxxxx
Fund and each of them harmless from all loss, liability and
expense (including reasonable counsel fees and expenses in
connection with the contest of any claim) which the Trust or
the Xxxxxxx Fund may incur or sustain by reason of the fact
that (i) the Trust or the Xxxxxxx Fund shall be required to
pay any obligation of the PaineWebber Trust or the
PaineWebber Fund, whether consisting of Tax deficiencies or
otherwise, based upon a claim or claims against the
PaineWebber Trust or the PaineWebber Fund which were omitted
or not fully reflected in the financial statements to be
delivered to the Trust in connection with the Closing; (ii)
any representations or warranties made by the PaineWebber
Trust in Sections 4 or 6 hereof should prove to be false or
erroneous in any material respect; (iii) any covenant has
been breached in any material respect; or (iv) any claim is
made alleging that (a) the Combined Proxy Statement and
Prospectus delivered to the shareholders of the PaineWebber
Fund in connection with this transaction, or (b) the
Registration Statement on Form N-14 of which such Combined
Proxy Statement and Prospectus forms a part, included any
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except insofar as such claim is based on written
information furnished to the PaineWebber Trust by the Trust,
its investment adviser or distributor.
12. Indemnification by the Trust and the Xxxxxxx
Fund
The Trust and the Xxxxxxx Fund hereby agree to
indemnify and hold the Trustees of the PaineWebber Trust and
the PaineWebber Fund harmless from all loss, liability and
expenses (including reasonable counsel fees and expenses in
connection with the contest of any claim) which the
PaineWebber Trust or the PaineWebber Fund may incur or
sustain by reason of the fact that (i) any representations
or warranties made by the Trust in Sections 5 or 6 hereof
should prove false or erroneous in any material respect;
(ii) any covenant has been breached by the Trust or the
Xxxxxxx Fund in any material respect; or (iii) any claim is
made alleging that (a) the Combined Proxy Statement and
Prospectus delivered to the shareholders of the PaineWebber
Fund in connection with this transaction or (b) the
Registration Statement on Form N-14 of which such Combined
Proxy Statement and Prospectus forms a part, included any
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except insofar as such claim is based on written
information furnished to the Trust by the PaineWebber Trust,
its investment adviser or distributor.
13. Notice of Claim of Indemnification
In the event that any claim is made against the
Trust or the Xxxxxxx Fund in respect of which indemnity may
be sought by the Trust or the Xxxxxxx Fund from the
PaineWebber Trust, the PaineWebber Fund or the shareholders
of the PaineWebber Fund under Section 11 of this Agreement,
or, in the event that any claim is made against the
PaineWebber Trust or the PaineWebber Fund in respect of
which indemnity may be sought by the PaineWebber Trust or
the PaineWebber Fund from the Trust or the Xxxxxxx Fund
under Section 12 of this Agreement, the party seeking
indemnification (the "Indemnified Party") shall, with
reasonable promptness and before payment of such claim, give
written notice of such claim to the other party (the
"Indemnifying Party"). If no objection as to the validity
of the claim is made in writing to the Indemnified Party by
the Indemnifying Party within thirty (30) days after giving
notice hereunder, then, the Indemnified Party may pay such
claim and shall be entitled to reimbursement therefor,
pursuant to this Agreement. If, prior to the termination of
such thirty-day period, objection in writing as to the
validity of such claim is made to the Indemnified Party, the
Indemnified Party shall withhold payment thereof until the
validity of the claim is established (i) to the satisfaction
of the Indemnifying Party; or (ii) by a final determination
of a court of competent jurisdiction, whereupon the
Indemnified Party may pay such claim and shall be entitled
to reimbursement thereof, pursuant to this Agreement and
Plan of Reorganization; or (iii) with respect to any Tax
claims, within seven (7) calendar days following the earlier
of (A) an agreement between the PaineWebber Trust and the
Trust that an indemnity amount is payable, (B) an assessment
of a Tax by a taxing authority, or (C) a "determination"
as defined in Section 1313(a) of the Code. For purposes of
this Section 13, the term "assessment" shall have the same
meaning as used in Chapter 63 of the Code and Treasury
Regulations thereunder, or any comparable provision under
the laws of the appropriate taxing authority. In the event
of any objection by the Indemnifying Party, the Indemnifying
Party shall promptly investigate the claim, and if it is not
satisfied with the validity thereof, the Indemnifying Party
shall conduct the defense against such claim. All costs and
expenses incurred by the Indemnifying Party in connection
with such investigation and defense of such claim shall be
borne by it. These indemnification provisions are in
addition to, and not in limitation of, any other rights the
parties may have under applicable law.
14. Termination; Waiver; Order
(a) Anything contained in this Agreement to the
contrary notwithstanding, this Agreement may be terminated
and the Plan of Reorganization abandoned at any time
(whether before or after adoption thereof by the
shareholders of the PaineWebber Fund) prior to the Closing
as follows:
(1) by mutual consent of the PaineWebber
Trust and the Trust in writing;
(2) by the Trust if any condition precedent
to its obligations set forth in Section 9 has not been
fulfilled or waived by the Trust in writing; or
(3) by the PaineWebber Trust if any
condition precedent to its obligations set forth in
Section 9 has not been fulfilled or waived by the
PaineWebber Trust in writing.
(b) If the transactions contemplated by this
Agreement have not been consummated by December 31, 2001,
this Agreement shall automatically terminate on that date,
unless a later date is agreed to in writing by both the
PaineWebber Trust and the Trust.
(c) In the event of termination of this Agreement
pursuant to the provisions hereof, the same shall become
void and have no further effect, and there shall not be any
liability on the part of either the PaineWebber Trust or the
Trust or persons who are their trustees, officers, agents or
shareholders in respect of this Agreement.
(d) At any time prior to the Closing, any of the
terms or conditions of this Agreement may be waived by
either the PaineWebber Trust or the Trust, respectively
(whichever is entitled to the benefit thereof).
(e) The respective representations, warranties
and covenants contained in Sections 4-8 hereof shall expire
with, and be terminated by, the consummation of the Plan of
Reorganization.
(f) If any order or orders of the Commission with
respect to this Agreement shall be issued prior to the
Closing and shall impose any terms or conditions that are
determined by action of the Board of Trustees of the
PaineWebber Trust or the Board of Trustees of the Trust to
be acceptable, such terms and conditions shall be binding as
if a part of this Agreement without further vote or approval
of the shareholders of the PaineWebber Fund, unless such
further vote is required by applicable law, or by mutual
consent of the parties.
15. Final Tax Returns and Forms 1099 of the
PaineWebber Fund
(a) After the Closing, the PaineWebber Trust
shall or shall cause its agents to prepare any federal,
state or local Tax returns, including any Forms 1099,
required to be filed by the PaineWebber Trust with respect
to the PaineWebber Fund's final taxable year ending with its
complete liquidation and for any prior periods or taxable
years and shall further cause such Tax returns and Forms
1099 to be duly filed with the appropriate taxing
authorities.
(b) Notwithstanding the provisions of Section 1
hereof, any expenses incurred by the PaineWebber Trust or
the PaineWebber Fund (other than for payment of Taxes) in
connection with the preparation and filing of said Tax
returns and Forms 1099 after the Closing, shall be borne by
the PaineWebber Fund to the extent such expenses have been
or should have been accrued by the PaineWebber Fund in the
ordinary course without regard to the Plan of Reorganization
contemplated by this Agreement.
16. Cooperation and Exchange of Information
The Trust and the PaineWebber Trust will provide
each other and their respective representatives with such
cooperation and information as either of them reasonably may
request of the other in filing any Tax returns, amended
return or claim for refund, determining a liability for
Taxes or a right to a refund of Taxes or participating in or
conducting any audit or other proceeding in respect of
Taxes. Each party or their respective agents will retain
for a period of six (6) years following the Closing all
returns, schedules and work papers and all material records
or other documents relating to Tax matters of the
PaineWebber Fund and Xxxxxxx Fund for its taxable period
first ending after the Closing and for all prior taxable
periods.
17. Entire Agreement and Amendments
This Agreement embodies the entire Agreement
between the parties and there are no agreements,
understandings, restrictions, or warranties between the
parties other than those set forth herein or herein provided
for. This Agreement may be amended only by mutual consent
of the parties in writing. Neither this Agreement nor any
interest herein may be assigned without the prior written
consent of the other party.
18. Counterparts
This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an
original, but all such counterparts together shall
constitute but one instrument.
19. Notices
Any notice, report, or demand required or
permitted by any provision of this Agreement shall be in
writing and shall be deemed to have been given if delivered
or mailed, first class postage prepaid, addressed to the
Trust at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-
0000, Attention: Secretary, or to the PaineWebber Trust at
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Secretary.
20. Governing Law
This Agreement shall be governed by and carried
out in accordance with the laws of the State of Delaware.
21. Effect of Facsimile Signature
A facsimile signature of an authorized officer of
a party hereto on this Agreement and/or any transfer
document shall have the same effect as if executed in the
original by such officer.
IN WITNESS WHEREOF, the Trust and PaineWebber
Trust have each caused this Agreement and Plan of
Reorganization to be executed on its behalf by its duly
authorized officers, all as of the day and year first-above
written.
THE XXXXXXX FUNDS, ON BEHALF
OF THE HIGH YIELD FUND
Attest:
Xxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxxxxx
By: Xxxx X. Xxxxxxxx
By: Xxx X. Xxxxxxxx
Title: Treasurer and Principal
Title: Vice President and
Secretary
Accounting Officer
XXXXXXX MANAGED INVESTMENTS
TRUST, ON BEHALF
OF THE PAINEWEBBER HIGH
INCOME FUND
Attest:
/s/ Xxxx X. Xxxxxxxx
Xxx X. Xxxxxxxx
By: Xxxx X. Xxxxxxxx
By: Xxx X. Xxxxxxxx
Title: Vice President and
Treasurer
Title: Vice President and
Secretary
