AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"), is made as of
the 25/th/ day of May, 2016, by Mercer Funds, a Delaware statutory trust with
its principal place of business at 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
on behalf of each of its two separate investment series, the Mercer US
Small/Mid Cap Growth Equity Fund (the "Acquiring Fund") and the Xxxxxx US
Small/Mid Cap Value Equity Fund (the "Acquired Fund"), with respect to the
reorganization transaction described herein.
This Agreement is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368(a)(1) of the United States
Internal Revenue Code of 1986, as amended (the "Code"). The reorganization (the
"Reorganization") will consist of the transfer of all of the assets of the
Acquired Fund to the Acquiring Fund in exchange solely for Class Y-3 Shares of
the Acquiring Fund (the "Acquiring Fund Shares"), the assumption by the
Acquiring Fund of all of the liabilities of the Acquired Fund described in
paragraph 1.3, and the distribution of the Acquiring Fund Shares to the
shareholders of the Acquired Fund in complete liquidation of the Acquired Fund
as provided herein, all upon the terms and conditions hereinafter set forth in
this Agreement.
WHEREAS, the Acquired Fund and Acquiring Fund are each separate investment
series of an open-end, registered investment company of the management type and
the Acquired Fund owns securities that generally are assets of the character in
which the Acquiring Fund is permitted to invest; and
WHEREAS, the Board of Trustees of the Trust has determined, with respect to
the Acquiring Fund, that the exchange of all of the assets of the Acquired Fund
for the Acquiring Fund Shares and the assumption of all of the liabilities of
the Acquired Fund by the Acquiring Fund, as described in paragraph 1.3 herein,
is in the best interests of the Acquiring Fund and its shareholders and that
the interests of the existing shareholders of the Acquiring Fund would not be
diluted as a result of this transaction; and
WHEREAS, the Board of Trustees of the Trust has also determined, with
respect to the Acquired Fund, that the exchange of all of the assets of the
Acquired Fund for the Acquiring Fund Shares and the assumption of the
liabilities of the Acquired Fund by the Acquiring Fund, as described in
paragraph 1.3 herein, is in the best interests of the Acquired Fund and its
shareholders and that the interests of the existing shareholders of the
Acquired Fund would not be diluted as a result of this transaction;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the Trust, on behalf of each of the Acquiring
Fund and the Acquired Fund, respectively, hereby covenants and agrees as
follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND TO THE ACQUIRING FUND IN EXCHANGE
FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF THE LIABILITIES OF THE ACQUIRED
FUND AND THE LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to the requisite approvals and the other terms and conditions
herein set forth and on the basis of the representations and warranties
contained herein, the Acquired Fund agrees to transfer all of its respective
assets, as set forth in paragraph 1.2, to the Acquiring Fund, and the Acquiring
Fund agrees in exchange therefor: (i) to deliver to the Acquired Fund the
number of full and fractional Acquiring Fund Shares as of the time and date set
forth in paragraph 2.1 and (ii) to assume the liabilities of the Acquired Fund,
as set forth in paragraph 1.3. Such transactions shall take place at the
closing provided for in paragraph 3.1 (the "Closing").
1.2. The assets of the Acquired Fund to be acquired by the Acquiring Fund
shall consist of all assets and property, including, without limitation, all
cash, securities, commodities and futures interests, claims (whether absolute
or contingent, known or unknown, accrued or unaccrued) and dividends or
interest receivable that are owned by the Acquired Fund and any deferred or
prepaid expenses shown as an asset on the books of the Acquired Fund on the
closing date provided for in paragraph 3.1 (the "Closing Date") (collectively,
"Assets").
1.3. The Acquiring Fund shall assume all of the liabilities of the Acquired
Fund. The Acquired Fund shall deliver to the Acquiring Fund the Acquired Fund's
Statement of Assets and Liabilities as of the Closing Date pursuant to
paragraph 8.2 hereof.
1.4. On or as soon as practicable prior to the Closing Date, the Acquired
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.
1.5. Immediately after the transfer of assets provided for in paragraph
1.1, the Acquired Fund will: (i) distribute to the Acquired Fund's shareholders
of record with respect to its Class Y-3 Shares, determined as of immediately
after the close of business on the Closing Date, on a pro rata basis, the Class
Y-3 Shares of the Acquiring Fund received by the Acquired Fund pursuant to
paragraph 1.1 and (ii) completely liquidate. Such distribution and liquidation
will be accomplished, with respect to the Acquired Fund's shares, by the
transfer of the Acquiring Fund Shares then credited to the account of the
Acquired Fund on the books of the Acquiring Fund to open accounts on the share
records of the Acquiring Fund in the names of the shareholders of record of the
Acquired Fund's shares, determined as of immediately after the close of
business on the Closing Date (the "Acquired Fund Shareholders"). The aggregate
net asset value of such Acquiring Fund Shares to be so credited to such
Acquired Fund Shareholders shall be equal to the aggregate net asset value of
the Investor Shares of the Acquired Fund owned by such shareholders on the
Closing Date. All issued and outstanding Class Y-3 Shares of the Acquired Fund
will simultaneously be canceled on the books of the Acquired Fund. The
Acquiring Fund shall not issue certificates representing such Acquiring Fund
Shares in connection with such exchange.
1.6. Ownership of Acquiring Fund Shares of the Acquiring Fund will be shown
on its books. Acquiring Fund Shares will be issued in the manner described in
the Acquiring Fund's current prospectus.
1.7. Any reporting responsibility of the Acquired Fund including, but not
limited to, the responsibility for filing of regulatory reports, tax returns,
or other documents with the U.S. 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 the Acquired Fund.
1.8. As soon as reasonably practicable after the Closing Date, the Acquired
Fund shall make all filings and take all steps as shall be necessary and proper
to effect its complete dissolution.
2. VALUATION
2.1. The value of the Assets shall be the value computed as of immediately
after the close of business of the New York Stock Exchange (and after the
declaration of any dividends) (such time and date being hereinafter called the
"Valuation Date"), using the valuation procedures set forth in the Trust's
Amended and Restated Agreement and Declaration of Trust and then-current
prospectus and statement of
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additional information with respect to the Acquiring Fund, and valuation
procedures established by the Trust's Board.
2.2. All computations of value shall be made by the Trust's accounting
agent and shall be subject to review by the Trust's independent registered
public accounting firm.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be June 24, 2016, or such other date as the
parties may agree to in writing. All acts taking place at the Closing shall be
deemed to take place simultaneously as of immediately after the close of
business on the Closing Date unless otherwise agreed to by the parties. The
close of business on the Closing Date shall be as of 4:00 p.m., Eastern Time.
The Closing shall be held at the offices of the Trust or at such other time
and/or place as the parties may agree.
3.2. The Trust shall direct State Street Bank and Trust Company, as
custodian for the Acquired Fund (the "Custodian"), to deliver at the Closing a
certificate of an authorized officer stating that: (i) the Assets shall have
been delivered in proper form to the Acquiring Fund within two business days
prior to or on the Closing Date; and (ii) 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. The Acquired Fund's portfolio securities represented by a certificate or
other written instrument shall be presented by the Custodian to those persons
at the Custodian who have primary responsibility for the safekeeping of the
Assets of the Acquiring Fund for examination no later than five business days
preceding the Closing Date, and shall be transferred and delivered by the
Acquired Fund as of the Closing Date for the account of the Acquiring Fund duly
endorsed in proper form for transfer in such condition as to constitute good
delivery thereof. The Trust on behalf of the Acquired Fund, shall direct the
Custodian to deliver as of the Closing Date by book entry, in accordance with
the customary practices of the Custodian and any securities depository (as
defined in Rule 17f-4 under the Investment Company Act of 1940, as amended (the
"1940 Act")) in which the Assets are deposited, the Acquired Fund's portfolio
securities and instruments deposited with such depositories. The cash to be
transferred by the Acquired Fund shall be delivered by wire transfer of federal
funds on the Closing Date.
3.3. The Trust shall direct State Street Bank and Trust Company, as
transfer agent for the Acquired Fund (the "Transfer Agent"), to deliver at the
Closing a certificate of an authorized officer stating that: (i) its records
contain the names and addresses of the Acquired Fund Shareholders, and (ii) the
number and percentage ownership of outstanding shares owned by each such
shareholder immediately prior to the Closing. The Acquiring Fund shall issue
and deliver a confirmation evidencing the Acquiring Fund Shares to be credited
on the Closing Date to the Secretary of the Acquired Fund, or provide evidence
satisfactory to the Acquired Fund that such Acquiring Fund Shares have been
credited to the Acquired Fund's account on the books of the 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.
3.4. In the event that on the Valuation Date: (a) the New York Stock
Exchange or another primary trading market for portfolio securities of the
Acquired Fund shall be closed to trading or trading thereupon 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 Board of the
Trust, accurate appraisal of the value of the net assets of the Acquired 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.
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4. REPRESENTATIONS AND WARRANTIES
4.1. The Trust, on behalf of the Acquired Fund, represents and warrants to
the Acquiring Fund as follows:
(a) The Acquired Fund is duly organized as a series of the Trust, which
is a statutory trust duly organized, validly existing and in good standing
under the laws of the State of Delaware, with power under the Trust's Amended
and Restated Agreement and Declaration of Trust and its Amended and Restated
By-Laws, to own all of its properties and assets and to carry on its business
as it is presently being conducted;
(b) The Trust is a registered investment company classified as a
management company of the open-end type, and its registration with the
Commission as an investment company under the 1940 Act, and the registration of
shares of the Acquired Fund under the Securities Act of 1933, as amended ("1933
Act"), is in full force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquired Fund of
the transactions contemplated herein, except such as have been obtained under
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 or blue sky
laws;
(d) The current prospectuses and statement of additional information of
the Acquired Fund and each prospectus and statement of additional information
of the Acquired Fund used during the three years previous to the date of this
Agreement conforms or conformed at the time of its use 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 does not, or did not at the
time of its use, 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;
(e) On the Closing Date, the Acquired Fund will have good and
marketable title to the Assets 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, the Acquiring Fund
will acquire good and marketable title thereto, subject to no restrictions on
the full transfer thereof, including such restrictions as might arise under the
1933 Act, other than as disclosed to the Acquiring Fund;
(f) The Acquiring Fund is not engaged currently, and the execution,
delivery and performance of this Agreement will not result, in: (i) a material
violation of the Trust's Amended and Restated Agreement and Declaration of
Trust or its Amended and Restated By-Laws, or of any agreement, indenture,
instrument, contract, lease or other undertaking to which the Trust, on behalf
of the Acquired Fund, is a party or by which it is bound, other than as
disclosed to the Acquiring Fund; or (ii) the acceleration of any obligation, or
the imposition of any penalty, under any agreement, indenture, instrument,
contract, lease, judgment or decree to which the Acquired Fund is a party or by
which it is bound, other than as disclosed to the Acquiring Fund;
(g) All material contracts or other commitments of the Acquired Fund
(other than this Agreement and certain investment contracts including options,
futures and forward contracts) will terminate without liability, or will be
continued with respect to the Acquired Fund as of the Closing Date;
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(h) Except as otherwise disclosed in writing by the Trust, on behalf of
the Acquiring Fund, no litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or, to the
best of its knowledge, threatened against the Trust, on behalf of the Acquired
Fund, or any of the its properties or assets that, if adversely determined,
would materially and adversely affect its financial condition or the conduct of
its business. Except as otherwise disclosed in writing by the Trust, on behalf
of the Acquiring Fund, the Trust knows of no facts which might form the basis
for the institution of such proceedings and is not a party to or subject to the
provisions of any order, decree or judgment of any court or governmental body
which materially and adversely affects its business or its ability to
consummate the transactions herein contemplated;
(i) The Statement of Assets and Liabilities and Schedule of Investments
of the Acquired Fund as of March 31, 2015, and the related Statement of
Operations, Statement of Changes in Net Assets and Financial Highlights for the
periods then ended, have been audited by Deloitte & Touche LLP, the Trust's
independent registered public accounting firm, included in its report dated May
28, 2015, and are in accordance with generally accepted accounting principles
("U.S. GAAP") consistently applied, and such statements (copies of which have
been furnished to the Acquiring Fund) present fairly, in all material respects,
the financial condition of the Acquired Fund as of such date, and the results
of its operations and the changes in its net assets for the year then ended, in
accordance with U.S. GAAP, and there are no known material contingent
liabilities of the Acquired Fund required to be reflected on a statement of
assets and liabilities (including the notes thereto) in accordance with U.S.
GAAP as of such date not disclosed therein;
(j) The Trust, on behalf of the Acquiring Fund, has been furnished with
an unaudited Statement of Assets and Liabilities and Schedule of Investments of
the Acquired Fund as of September 30, 2015, and related unaudited Statement of
Operations, Statement of Changes in Net Assets and Financial Highlights for the
six-month period then ended. These statements are in accordance with U.S. GAAP
and present fairly, in all material respects, the financial position of the
Acquired Fund as of such date in accordance with U.S. GAAP, and there are no
known material contingent liabilities of the Acquired Fund as of such date not
disclosed therein;
(k) Since March 31, 2015, there have not been any material adverse
changes in the Acquired Fund's financial condition, assets, liabilities or
business, other than changes occurring in the ordinary course of business, or
any incurrence by the Acquired Fund of indebtedness maturing more than one year
from the date such indebtedness was incurred, in each case except as otherwise
disclosed to the Acquiring Fund (for the purposes of this subparagraph (k), a
decline in net asset value per share of the Acquired Fund due to declines in
market values of securities in the Acquired Fund's portfolio, the discharge of
the Acquired Fund's liabilities, or the redemption of Acquired Fund shares by
shareholders of the Acquired Fund shall not constitute a material adverse
change);
(l) On the Closing Date, all Federal and other tax returns, dividend
reporting forms, and other tax-related reports of the Acquired Fund required by
law to have been filed by such date (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 the Acquired Fund's knowledge, no such return is
currently under audit and no assessment has been asserted with respect to such
returns;
(m) For each taxable year of its operation (including the taxable year
ending on the Closing Date), the Acquired Fund has met (or will meet) 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, and has
been (or will be) eligible to and has computed (or will compute) its federal
income tax under
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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 will have
accrued through the Closing Date;
(n) All issued and outstanding shares of the Acquired Fund are, and on
the Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by the Trust, and have been offered and sold in compliance
in all material respects with applicable registration requirements of the 1933
Act and state securities laws. All of the issued and outstanding shares of the
Acquired Fund will, at the time of Closing, be held by the persons and in the
amounts set forth in the records of the Transfer Agent, on behalf of the
Acquired Fund, as provided in paragraph 3.3 of this Agreement. The Acquired
Fund does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the shares of the Acquired Fund, nor is there
outstanding any security convertible into the Acquired Fund shares;
(o) 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 of the Trust, on behalf of the Acquired Fund, and this
Agreement will constitute a valid and binding obligation of the Acquired Fund,
enforceable against the Acquired Fund in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights and to general equity
principles; and
(p) The information to be furnished by the Acquired Fund for use in the
registration statement and other documents filed or to be filed by the Trust
with any federal, state or local regulatory authority which may be necessary in
connection with the transactions contemplated hereby shall be accurate and
complete in all material respect.
4.2. The Trust, on behalf of the Acquiring Fund, represents and warrants to
the Acquired Trust as follows:
(a) The Acquiring Fund is duly organized as a series of the Trust,
which is a statutory trust duly organized, validly existing and in good
standing under the laws of the State of Delaware, with power under the Trust's
Amended and Restated Agreement and Declaration of Trust and its Amended and
Restated By-Laws to own all of its properties and assets and to carry on its
business as it is presently being conducted;
(b) The Trust is a registered investment company classified as a
management company of the open-end type, and its registration with the
Commission as an investment company under the 1940 Act and the registration of
the shares of the Acquiring Fund under the 1933 Act, is, or will be as of the
Closing Date, in full force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the 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;
(d) The current prospectuses and statement of additional information of
the Acquiring Fund conforms 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 does 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;
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(e) The Acquiring Fund is not engaged currently, and the execution,
delivery and performance of this Agreement will not result, in: (i) a material
violation of the Trust's Amended and Restated Agreement and Declaration of
Trust or its Amended and Restated By-Laws or of any agreement, indenture,
instrument, contract, lease or other undertaking to which the Trust, on behalf
of the Acquiring Fund, is a party or by which it is bound, other than as
disclosed to the Acquired Fund; or (ii) the acceleration of any obligation, or
the imposition of any penalty, under any agreement, indenture, instrument,
contract, lease, judgment or decree to which the Trust, on behalf of the
Acquiring Fund, is a party or by which it is bound, other than as disclosed to
the Acquired Fund;
(f) No material litigation or administrative proceeding or
investigation of or before any court or governmental body is presently pending
or, to the best of its knowledge, threatened against the Trust, on behalf of
the Acquiring Fund, or any of its properties or assets that, if adversely
determined, would materially and adversely affect its financial condition or
the conduct of its business. The Trust, on behalf of the Acquiring Fund, knows
of no facts which might form the basis for the institution of such proceedings
and is not a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially and adversely
affects its business or its ability to consummate the transactions herein
contemplated;
(g) All issued and outstanding shares of the Acquiring Fund are, and on
the Closing Date will be duly and validly issued and outstanding, fully paid
and non-assessable by the Trust and will be offered and sold in compliance in
all material respects with applicable registration requirements of the 1933 Act
and state securities laws. The Acquiring Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase any Acquiring
Fund Shares, nor is there outstanding any security convertible into any
Acquiring Fund Shares;
(h) The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action, if any,
on the part of the Board of the Trust, on behalf of the Acquiring Fund, and
this Agreement will constitute a valid and binding obligation of the Acquiring
Fund, enforceable against the Acquiring Fund in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights and to
general equity principles;
(i) The Acquiring Fund Shares to be issued and delivered to the
Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant to
the terms of this Agreement, will, on the Closing Date, have been duly
authorized and, when so issued and delivered, will be duly and validly issued
Acquiring Fund Shares, and will be fully paid and non-assessable;
(j) The Trust is not under the jurisdiction of a Court in a Title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the Code;
(k) The Acquiring Fund does not have any unamortized or unpaid
organizational fees or expenses;
(l) On the Closing Date, all Federal and other tax returns, dividend
reporting forms, and other tax-related reports of the Acquiring Fund required
by law to have been filed by such date (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 the Acquiring Fund's knowledge, no such return is
currently under audit and no assessment has been asserted with respect to such
returns; and
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(m) For each taxable year of its operation, the Acquiring Fund has met
the requirements of Subchapter M of the Code for qualification 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
be eligible to do so and will do so for the taxable year including the Closing
Date.
5. COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND
5.1. The Acquiring Fund and the Acquired Fund each will operate its
business in the ordinary course between the date hereof and the Closing Date,
it being understood that such ordinary course of business will include, without
limitation, purchases and sales of portfolio securities, sales and redemptions
of Acquired Fund shares, and the declaration and payment of customary dividends
and distributions, and any other distribution that may be advisable.
5.2. The Acquired Fund covenants that the 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.
5.3. The Acquired Fund will assist the Acquiring Fund in obtaining such
information as the Acquiring Fund reasonably requests concerning the beneficial
ownership of the Acquired Fund shares.
5.4. Subject to the provisions of this Agreement, the Acquiring Fund and
the Acquired Fund will take, or cause to be taken, all action, and do or cause
to be done, all things reasonably necessary, proper or advisable to consummate
and make effective the transactions contemplated by this Agreement.
5.5. As soon as is reasonably practicable after the Closing, the Acquired
Fund will make a liquidating distribution to its shareholders consisting of the
Acquiring Fund Shares received at the Closing.
5.6. The Acquiring Fund and the Acquired Fund shall each use commercially
reasonable efforts to fulfill or obtain the fulfillment of the conditions
precedent to effect the transactions contemplated by this Agreement as promptly
as reasonably practicable.
5.7. The Trust, on behalf of the Acquired Fund, covenants that it will,
from time to time after the Closing, as and when reasonably requested by the
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 the Trust, on behalf of the Acquiring Fund, may reasonably
deem necessary or desirable in order to vest in and confirm: (a) the Trust's,
on behalf of the Acquired Fund's, title to and possession of the Acquiring
Fund's Shares to be delivered hereunder, and (b) the Trust's, on behalf of the
Acquiring Fund's, title to and possession of all the Assets.
5.8. The Acquiring Fund will use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and such of
the state blue sky or securities laws as may be necessary in order to continue
its operations after the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Trust, on behalf of the Acquired Fund, to consummate
the transactions provided for herein shall be subject, at the Trust's election,
to the performance by the Trust, on behalf of the 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:
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6.1. All representations and warranties of the Trust, on behalf of the
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;
6.2. The Trust, on behalf of the Acquiring Fund, shall have delivered to
the Acquired Fund a certificate executed in its name by its President or a Vice
President and its Treasurer or Assistant Treasurer, in a form reasonably
satisfactory to the Trust and dated as of the Closing Date, to the effect that
the representations and warranties of the Trust, on behalf of the Acquiring
Fund, made in this Agreement are true and correct in all material respects at
and as of the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement;
6.3. The Trust, on behalf of the 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 the Trust, on behalf of the
Acquiring Fund, on or before the Closing Date;
6.4. The Acquired Fund and the Acquiring Fund shall have agreed on the
number of full and fractional Acquiring Fund Shares to be issued in connection
with the Reorganization after such number has been calculated in accordance
with paragraph 1.1 of this Agreement; and
6.5. The Trust, on behalf of the Acquired Fund, shall have received on the
Closing Date the opinion of Dechert LLP, counsel to the Trust (which may
reasonably rely as to matters governed by the laws of the State of Delaware on
an opinion of Delaware counsel and/or certificates of officers or Trustees of
the Acquiring Trust), dated as of the Closing Date, covering the following
points:
(a) The Trust is a statutory trust duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the
power to own all of the Acquiring Fund's properties and assets and to
carry on its business, including that of the Acquiring Fund, as a
registered investment company, and the Acquiring Fund has all necessary
federal, state and local authorizations to carry on its business as now
being conducted;
(b) The Agreement has been duly authorized, executed and delivered by
the Trust, on behalf of the Acquiring Fund, and, assuming due
authorization, execution and delivery of the Agreement by the Trust, is
a valid and binding obligation of the Trust, on behalf of the Acquiring
Fund, enforceable against the Trust in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and to general equity principles;
(c) The Acquiring Fund Shares to be issued to the Acquired Fund
Shareholders as provided by this Agreement are duly authorized, upon
such delivery will be validly issued and outstanding, and are fully paid
and non-assessable by the Trust, and no shareholder of the Acquiring
Fund has any preemptive rights to subscription or purchase in respect
thereof;
(d) The execution and delivery of the Agreement did not, and the
consummation of the transactions contemplated hereby will not, result in
a material violation of the Trust's Amended and Restated Agreement and
Declaration of Trust or its Amended and Restated By-Laws or any
provision of any agreement (known to such counsel) to which the Trust is
a party or by which it is bound or, to the knowledge of such counsel,
result in the
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acceleration of any obligation or the imposition of any penalty under
any agreement, judgment or decree to which the Trust is a party or by
which it is bound;
(e) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the
United States or the State of Delaware is required to be obtained by the
Trust in order to consummate the transactions contemplated herein,
except such as have been obtained under the 1933 Act, the 1934 Act and
the 1940 Act, and such as may be required under state securities laws;
(f) The Trust is a registered investment company classified as a
management company of the open-end type with respect to each series of
shares it offers, including those of the Acquiring Fund, under the 1940
Act; its registration with the Commission as an investment company under
the 1940 Act is in full force and effect; and the Acquiring Fund is a
separate series of the Trust duly constituted in accordance with the
applicable provisions of the 1940 Act and the Amended and Restated
Agreement and Declaration of Trust and Amended and Restated Bylaws of
the Trust and applicable law; and
(g) To the knowledge of such counsel, no litigation or administrative
proceeding or investigation of or before any court or governmental body
is presently pending or threatened as to the Trust or the Acquiring Fund
or any of their respective properties or assets and neither the Trust
nor the Acquiring Fund are 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.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Trust, on behalf of the Acquiring Fund, to complete
the transactions provided for herein shall be subject, at the Trust's election,
to the performance by the Trust, on behalf of the Acquired Fund, of all of the
obligations to be performed by it hereunder on or before the Closing Date and,
in addition thereto, the following conditions:
7.1. All representations and warranties of the Trust, on behalf of the
Acquired 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;
7.2. The Trust, on behalf of the Acquired Fund, shall have delivered to the
Acquiring Fund a statement of the Acquired Fund's assets and liabilities,
together with a list of portfolio securities of the Acquired Fund showing the
tax costs of such securities by lot and the holding periods of such securities,
as of the Closing Date, certified by the Treasurer of the Trust;
7.3. The Trust, on behalf of the Acquired Fund, shall have delivered to the
Acquiring Fund on the Closing Date a certificate executed in its name by its
President or a Vice President and its Treasurer or Assistant Treasurer, in form
and substance satisfactory to the Trust and dated as of the Closing Date, to
the effect that the representations and warranties of the Trust, on behalf of
the Acquired Fund, made in this Agreement are, in all material respects, true
and correct at and as of the Closing Date, except as they may be affected by
the transactions contemplated by this Agreement;
7.4. The Trust, on behalf of the Acquired 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 the Trust, on behalf of the
Acquired Fund, on or before the Closing Date;
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7.5. The Acquired Fund and the Acquiring Fund shall have agreed on the
number of full and fractional Acquiring Fund Shares to be issued in connection
with the Reorganization after such number has been calculated in accordance
with paragraph 1.1 of this Agreement; and
7.6. The Trust, on behalf of the Acquiring Fund, shall have received on the
Closing Date the opinion of Dechert LLP, counsel to the Trust (which may rely
as to matters governed by the laws of the State of Delaware on an opinion of
Delaware counsel and/or certificates of officers or Trustees of the Acquired
Trust), covering the following points:
(a) The Trust is a statutory trust duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the
power to own all of the Acquired Fund's properties and assets, and to
carry on its business, including that of the Acquired Fund, as presently
conducted;
(b) The Agreement has been duly authorized, executed and delivered by
the Trust, on behalf of the Acquired Fund, and, assuming due
authorization, execution and delivery of the Agreement by the Trust, is
a valid and binding obligation of the Trust, on behalf of the Acquired
Fund, enforceable against the Trust in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and to general equity principles;
(c) The execution and delivery of the Agreement did not, and the
consummation of the transactions contemplated hereby will not, result in
a material violation of the Trust's Amended and Restated Agreement and
Declaration of Trust or its Amended and Restated By-Laws or any
provision of any agreement (known to such counsel) to which the Trust is
a party or by which it is bound or, to the knowledge of such counsel,
result in the acceleration of any obligation or the imposition of any
penalty under any agreement not disclosed to the Trust, judgment or
decree to which the Trust is a party or by which it is bound;
(d) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the
United States or the State of Delaware is required to be obtained by the
Trust in order to consummate the transactions contemplated herein,
except such as have been obtained under the 1933 Act, the 1934 Act and
the 1940 Act, and such as may be required under state securities or blue
sky laws (other than those of the State of Delaware);
(e) The Trust is a registered investment company classified as a
management company of the open-end type with respect to each series of
shares it offers, including those of the Acquired Fund, under the 1940
Act and its registration with the Commission as an investment company
under the 1940 Act is in full force and effect;
(f) The outstanding shares of the Acquired Fund are registered under
the 1933 Act, and such registration is in full force and effect; and
(g) To the knowledge of such counsel, no litigation or administrative
proceeding or investigation of or before any court or governmental body
is presently pending or threatened as to the Trust or the Acquired Fund
or any of their respective properties or assets, and neither the Trust
nor the Acquired Fund are a party to or subject to the
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provisions of any order, decree or judgment of any court or governmental
body which materially and adversely affects its business.
7.7. Prior to the Closing Date, the Acquired Fund shall have declared and
paid a dividend or dividends which, together with all previous dividends, shall
have the effect of distributing: (i) all of the Acquired Fund's investment
company taxable income (plus the excess, if any, of its interest income
excludible from gross income under Section 103(a) of the Code over its
deductions disallowed under Sections 265 and 171(a)(2) of the Code) and all of
its net realized capital gains for the taxable year ending on the Closing Date
(computed without regard to any deduction for dividends paid); and (ii) any
undistributed investment company taxable income (plus the excess, if any, of
its interest income excludible from gross income under Section 103(a) of the
Code over its deductions disallowed under Sections 265 and 171(a)(2) of the
Code) and net realized capital gains from any prior period to the extent not
otherwise already distributed.
7.8. The Trust, on behalf of the Acquired Fund, shall have furnished to the
Acquiring Fund, a certificate, signed by the President or any Vice President
and the Treasurer or any Assistant Treasurer of the Trust, as to the adjusted
tax basis in the hands of the Acquired Fund of the securities delivered to the
Acquiring Fund pursuant to this Agreement computed in accordance with
applicable sections of the Code and, with respect to securities, showing a
breakdown by purchase lot.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND THE
ACQUIRED FUND
If any of the conditions set forth below have not been satisfied on or
before the Closing Date with respect to the Acquired Fund, or with respect to
the Acquiring Fund, respectively, the other party to this Agreement shall, at
its option, not be required to consummate the transactions contemplated by this
Agreement:
8.1. 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 damages or
other relief in connection with, this Agreement or the transactions
contemplated herein;
8.2. All consents of other parties and all other consents, orders and
permits of Federal, state and local regulatory authorities deemed necessary by
the Trust 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 the Acquiring Fund or Acquired
Fund, provided that either party hereto may for itself waive any of such
conditions;
8.3. The Registration Statement on Form N-14 filed by the Trust on behalf
of the Acquiring Fund 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; and
8.4. The parties shall have received the opinion of Dechert LLP, counsel to
the Acquiring Fund and the Acquired Fund, substantially to the effect that,
based upon certain facts, assumptions, and representations, the transaction
contemplated by this Plan shall constitute a tax-free reorganization for
Federal income tax purposes. The delivery of such opinion is conditioned upon
receipt by Dechert LLP of
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representations it shall request of the Acquiring Fund and the Acquired Fund.
Notwithstanding anything herein to the contrary, the parties may not waive the
condition set forth in this paragraph 8.4.
9. INDEMNIFICATION
9.1. The Trust, out of the Acquiring Fund's assets and property, agrees to
indemnify and hold harmless the Acquired Fund from and against any and all
losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquired Fund may become subject, insofar as such
loss, claim, damage, liability or expense (or actions with respect thereto)
arises out of or is based on any breach by the Acquiring Fund of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
9.2. The Trust agrees, out of the Acquired Fund's assets and property,
agrees to indemnify and hold harmless the Acquiring Fund from and against any
and all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquiring Fund may become subject, insofar as such
loss, claim, damage, liability or expense (or actions with respect thereto)
arises out of or is based on any breach by the Acquired Fund of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
10.BROKERAGE FEES AND EXPENSES
10.1. The Trust, on behalf of both the Acquiring Fund and the Acquired
Fund, represents and warrants that there are no brokers or finders entitled to
receive any payments in connection with the transactions provided for herein.
10.2. The expenses relating to the Reorganization will be borne by Xxxxxx
Investment Management, Inc. The costs of the Reorganization shall include, but
not be limited to, costs associated with obtaining any necessary order of
exemption from the 1940 Act, legal fees and accounting fees with respect to the
Reorganization, and all necessary taxes in connection with the delivery of the
Assets, including all applicable federal and state stock transfer
stamps. Notwithstanding any of the foregoing, expenses will in any event be
paid by the party directly incurring such expenses if and to the extent that
the payment by another person of such expenses would result in the
disqualification of such party as a "regulated investment company" within the
meaning of Section 851 of the Code.
11.ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. The Trust agrees that it has not made any representation, warranty or
covenant, on behalf of either the Acquiring Fund or the Acquired Fund, not set
forth herein and that this Agreement constitutes the entire agreement between
the parties.
11.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder. The covenants to be performed after the Closing shall survive the
Closing.
12.TERMINATION
This Agreement may be terminated and the transactions contemplated hereby
may be abandoned by resolution of the Trust's Board, on behalf of either the
Acquiring Fund or the Acquired Fund, at any
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time prior to the Closing Date, if circumstances should develop that, in the
opinion of the Board, make proceeding with the Agreement inadvisable.
13.AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as
may be deemed necessary or advisable by the authorized officers of the Trust,
on behalf of either the Acquiring Fund or the Acquired Fund.
14.NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
facsimile, personal service or prepaid or certified mail addressed to the Funds
at:
Mercer Funds
00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Vice President and Secretary
With a copy to:
---------------
Dechert LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X.X. Xxxxxx, Esq.
15.HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
15.1. The Article and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.2. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
15.3. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its principles of conflicts
of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
MERCER FUNDS,
on behalf of the Xxxxxx US Small/Mid Cap Growth Equity Fund
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: Vice President
--------------------------
MERCER FUNDS,
on behalf of the Xxxxxx US Small/Mid Cap Value Equity Fund
By: /s/ Xxxx Xxxxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxxxx
--------------------------
Title: Vice President
--------------------------
XXXXXX INVESTMENT MANAGEMENT, INC.
(solely with respect to Section 10.2)
By: /s/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
--------------------------
Title: Vice President
--------------------------
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