AGREEMENT AND PLAN OF REORGANIZATION
EXHIBIT
23(4)
THIS
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of this 5th
day of June, 2006, by and between Unified Series Trust ("Unified"), an Ohio
business trust, with its principal place of business at 000 Xxxxx Xxxxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, with respect to the Monteagle Fixed Income
Fund, the Monteagle Value Fund, and the Monteagle Large Cap Growth Fund, each
a
separate series of Unified (each an "Transferring Fund" and, together, the
"Transferring Funds"), and Memorial Funds ("Memorial"), a Delaware business
trust, with its principal place of business at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx,
Xxxxx 00000, with respect to the Memorial Government Bond Fund, the Monteagle
Value Fund ("Memorial/Monteagle Value Fund") and the Monteagle Large Cap Growth
Fund ("Memorial/Monteagle Large Cap Growth Fund"), each a separate series of
Memorial (each an "Acquiring Fund" and, together, the "Acquiring Funds", and
collectively with the Transferring Funds, the "Funds).
This
Agreement is intended to be, and is adopted as, a Plan of Reorganization within
the meaning of Section 368(a) of the United States Internal Revenue Code of
1986, as amended (the "Code"). The reorganization will consist of: (i) the
transfer of all of the assets of each Transferring Fund in exchange for shares
of beneficial interest, no par value per share, of its respective Acquiring
Fund
("Acquiring Fund Shares") as set forth on Schedule A attached hereto; (ii)
the
assumption by each Acquiring Fund of all liabilities of each Transferring Fund;
and (iii) the distribution, after the Closing Date hereinafter referred to,
of
the Acquiring Fund Shares to the shareholders of each Transferring Fund and
the
termination of each Transferring Fund as provided herein, all upon the terms
and
conditions set forth in this Agreement (the "Reorganization"). Notwithstanding
anything to the contrary contained herein, the obligations, agreements,
representations and warranties with respect to each Fund shall be the
obligations, agreements, representations and warranties of that Fund only,
and
in no event shall any other Fund or the assets of any other Fund be held liable
with respect to the breach or other default by an obligated Fund of its
obligations, agreements, representations and warranties as set forth herein.
Simultaneously with the Reorganization, the Memorial Funds will be renamed
"Monteagle Funds" and the Memorial Government Bond Fund will be renamed
"Monteagle Fixed Income Fund".
WHEREAS,
each Acquiring Fund and each Transferring Fund is a separate series of Memorial
and Unified, respectively, and Memorial and Unified are open-end, registered
management investment companies and each Transferring Fund owns securities
that
generally are assets of the character in which its respective Acquiring Fund
is
permitted to invest;
WHEREAS,
each Fund is authorized to issue its shares of beneficial interest;
WHEREAS,
the Trustees of Unified have determined that the Reorganization, with respect
to
each Transferring Fund, is in the best interests of the Transferring Fund's
shareholders and that the interests of the existing shareholders of the
Transferring Fund will not be diluted as a result of the
Reorganization;
NOW,
THEREFORE, in consideration of the premises, covenants, and agreements
hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE
I
TRANSFER
OF ASSETS OF THE TRANSFERRING FUNDS IN EXCHANGE FOR ACQUIRING FUND SHARES AND
THE ASSUMPTION OF THE TRANSFERRING FUNDS' LIABILITIES AND TERMINATION OF THE
TRANSFERRING FUNDS
1.1 THE
EXCHANGE. Subject to the terms and conditions contained herein and on the basis
of the representations and warranties contained herein, each Transferring Fund
agrees to transfer all of its assets and liabilities, as set forth in paragraph
1.2, to its respective Acquiring Fund. In exchange, each Acquiring Fund agrees
(i) to deliver to its respective Transferring Fund the number of full and
fractional shares of the Acquiring Fund equal in value to the value of full
and
fractional shares of the Transferring Fund then outstanding and (ii) to assume
the liabilities of the Transferring Fund, as set forth in paragraph 1.3. Such
transactions shall take place at the closing date provided for in paragraph
3.1
("Closing Date").
1.2
ASSETS
TO
BE ACQUIRED. The assets of each Transferring Fund to be acquired by its
respective Acquiring Fund shall consist of all property, including, without
limitation, all cash, securities, commodities, interests in futures and
dividends or interest receivables, owned by the Transferring Fund and any
deferred or prepaid expenses shown as an asset on the books of such Transferring
Fund on the Closing Date.
Each
Transferring Fund has provided its respective Acquiring Fund with its most
recent audited financial statements, which contain a list of all of the
Transferring Fund's assets as of the date of such statements. Each Transferring
Fund hereby represents that as of the date of the execution of this Agreement,
there have been no changes in its financial position as reflected in such
financial statements other than those occurring in the ordinary course of
business in connection with the purchase and sale of securities and the payment
of normal operating expenses and the payment of dividends, capital gains
distributions and redemption proceeds to shareholders.
Each
Transferring Fund will, within a reasonable period of time prior to the Closing
Date, furnish its respective Acquiring Fund with a list of the Transferring
Fund's portfolio securities and other investments. Each Acquiring Fund will,
within a reasonable time prior to the Closing Date, furnish its respective
Transferring Fund with a list of the securities, if any, on the Transferring
Fund's list referred to above that do not conform to the Acquiring Fund's
investment objectives, policies, and restrictions.
1.3 LIABILITIES
TO BE ASSUMED. Each Transferring Fund will endeavor to discharge all of its
known liabilities and obligations to the extent possible prior to the Closing
Date. Each Acquiring Fund shall assume those liabilities, expenses, costs,
charges and reserves reflected on a Statement of Assets and Liabilities of
its
respective Transferring Fund prepared on behalf of the Transferring Fund, as
of
the Valuation Date (as defined in paragraph 2.1), in accordance with generally
accepted accounting principles consistently applied from the prior audited
period. Each Acquiring Fund shall assume all of the liabilities of its
respective Transferring Fund, whether accrued or contingent, known or unknown,
existing at the Valuation Date whether or not they are reflected on the
Statement of Assets and Liabilities.
1.4 LIQUIDATION
AND DISTRIBUTION. On or as soon after the Closing Date as is conveniently
practicable (the "Liquidation Date"): (a) each Transferring Fund will make
a
liquidating distribution, pro rata to its shareholders of record (the
"Transferring Fund Shareholders"), determined as of the close of business on
the
Valuation Date (as defined in paragraph 2.1), of all of the Acquiring Fund
Shares received by the Transferring Fund pursuant to paragraph 1.1; and (b)
the
Transferring Fund will thereupon proceed to terminate as set forth in paragraph
1.9 below. Such distribution will be accomplished by the transfer of Acquiring
Fund Shares credited to the account of the Transferring Fund on the books of
the
Acquiring Fund to open accounts on the share records of the Acquiring Fund
in
the name of the Transferring Fund Shareholders, and representing the respective
pro
rata
number
of Acquiring Fund Shares due such shareholders. All issued and outstanding
shares of the Transferring Fund will simultaneously be canceled on the books
of
the Transferring Fund. The Acquiring Fund shall not issue certificates
representing Acquiring Fund Shares in connection with such transfer. Each
Transferring Fund Shareholder shall have the right to receive any unpaid
dividends or other distributions that were declared by the Transferring Fund
before the Effective Time (as defined in paragraph 3.1) with respect to
Transferring Fund shares that are held of record by a Transferring Fund
Shareholder at the Effective Time on the Closing Date.
1.5 OWNERSHIP
OF SHARES. Ownership of Acquiring Fund Shares will be shown on the books of
each
Acquiring Fund's transfer agent. Shares of each Acquiring Fund will be issued
simultaneously to its corresponding Transferring Fund, in an amount equal in
value to the NAV of each Transferring Fund's shares, to be distributed to
shareholders of each Transferring Fund.
1.6 TRANSFER
TAXES. Any transfer taxes payable upon the transfer of Acquiring Fund Shares
in
a name other than the registered holder of the Transferring Fund shares on
the
books of the Transferring Fund as of that time shall, as a condition of such
issuance and transfer, be paid by the person to whom such Acquiring Fund Shares
are to be transferred.
1.7 REPORTING
RESPONSIBILITY. Any reporting responsibility of each Transferring Fund is and
shall remain the responsibility of the Transferring Fund, up to and including
the Closing Date, and such later date on which the Transferring Fund is
terminated.
1.8 TERMINATION.
Each Transferring Fund shall be terminated promptly following the Closing Date
and the making of all distributions pursuant to paragraph 1.4.
1.9
The
Reorganization with respect to all of the Transferring Funds will not be
consummated upon the failure of one of the Transferring Funds to consummate
the
transactions contemplated hereby..
ARTICLE
II
VALUATION
2.1 VALUATION
OF ASSETS. The value of a Transferring Fund's assets to be acquired by its
respective Acquiring Fund hereunder shall be the value of such assets computed
as of the close of regular trading on the New York Stock Exchange ("NYSE")
on
the business day immediately prior to the Closing Date (such time and date
being
hereinafter called a "Valuation Date"), using the valuation procedures set
forth
in Unified's Declaration of Trust and each Transferring Fund's then current
prospectus and Statement of Additional Information or such other valuation
procedures as shall be mutually agreed upon by the parties. Each
Acquiring Fund and Transferring Fund agrees, however, to use all commercially
reasonable efforts to resolve any material pricing differences between the
prices of portfolio securities determined in accordance with the pricing
policies and procedures of an Acquiring Fund and those determined in accordance
with the pricing policies and procedures of its respective Transferring
Fund.
2.2 VALUATION
OF SHARES. The net asset value per share of Acquiring Fund Shares shall be
the
net asset value per share computed as of the close of normal trading on the
NYSE
on the Valuation Date, using the valuation procedures set forth in Memorial's
Instrument of Trust and each Acquiring Fund's then current prospectus and
Statement of Additional Information.
2.3 SHARES
TO
BE ISSUED. The number of each Acquiring Fund's shares to be issued (including
fractional shares) shall be equal in net asset value to the net asset value
of
each corresponding Transferring Fund's shares then outstanding. Upon the
Transferring Fund's liquidating distribution each holder of shares of the
Transferring Fund will receive shares of the corresponding Acquiring Fund equal
in net asset value to the net asset value of shares held by such holder
immediately prior to such liquidating distribution.
2.4 DETERMINATION
OF VALUE. Except with respect to a Transferring Fund's assets, which shall
be
valued by Unified Fund Services, Inc., all computations of value shall be made
by Citco Mutual Fund Services in accordance with its regular practice in pricing
the shares and assets of each Acquiring Fund.
ARTICLE
III
CLOSING
AND CLOSING DATE
3.1 CLOSING
DATE. The closing (the "Closing") will be on or about July [ ], 2006 or such
other date(s) as the parties may agree to in writing. All acts taking place
at
the Closing shall be deemed to take place immediately prior to the Closing
Date
unless otherwise provided. The Closing shall be held as of 9:00 a.m. Eastern
Standard Time (the "Effective Time") at the offices of Unified Fund Services,
Inc., 000 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, or at such
other time and/or place as the parties may agree.
3.2 CUSTODIAN'S
CERTIFICATE. The Huntington National Bank, as custodian for each Transferring
Fund, shall deliver at the Closing a certificate of an authorized officer
stating that: (a) each Transferring Fund's portfolio securities, cash, and
any
other assets shall have been delivered in proper form to its respective
Acquiring Fund on the Closing Date; and (b) all necessary taxes including all
applicable federal and state stock transfer stamps, if any, shall have been
paid, or provision for payment shall have been made, in conjunction with the
delivery of portfolio securities by the Transferring Fund.
3.3 EFFECT
OF
SUSPENSION IN TRADING. In the event that on the Valuation Date, either: (a)
the
NYSE or another primary exchange on which the portfolio securities of an
Acquiring Fund or a Transferring Fund are purchased or sold, shall be closed
to
trading or trading on such exchange shall be restricted; or (b) trading or
the
reporting of trading on the NYSE or elsewhere shall be disrupted so that
accurate appraisal of the value of the net assets of an Acquiring Fund or a
Transferring Fund is impracticable, the Valuation Date shall be postponed until
the first business day after the day when trading is fully resumed and reporting
is restored.
3.4 TRANSFER
AGENT'S CERTIFICATE. Unified Fund Services, Inc., as transfer agent for each
Transferring Fund as of the Closing Date, shall deliver at the Closing a
certificate of an authorized officer stating that its records contain the names
and addresses of Transferring Fund Shareholders, and the number and percentage
ownership of outstanding shares owned by each such shareholder immediately
prior
to the Closing. Each Acquiring Fund shall issue and deliver or cause Citco
Mutual Fund Services, its transfer agent, to issue and deliver a confirmation
evidencing Acquiring Fund Shares to be credited on the Closing Date to the
Secretary of Unified or provide evidence satisfactory to the Transferring Fund
that such Acquiring Fund Shares have been credited to the Transferring 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, receipts and other documents, if any, as such other party or
its
counsel may reasonably request.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
4.1 REPRESENTATIONS
OF THE TRANSFERRING FUNDS. Unified and each Transferring Fund represent and
warrant to Memorial and the respective Acquiring Fund as follows:
(a) The
Transferring Fund is a separate series of a business trust, duly organized,
validly existing and in good standing under the laws of the State of
Ohio.
(b) The
Transferring Fund is a separate series of an Ohio business trust that is
registered as an open-end management investment company, and such Ohio business
trust's registration with the U.S. Securities and Exchange Commission (the
"Commission") as an investment company under the Investment Company Act of
1940
(the "1940 Act") is in full force and effect.
(c) The
current prospectus and Statement of Additional Information of the Transferring
Fund conform in all material respects to the applicable requirements of the
Securities Act of 1933 (the "1933 Act") and the 1940 Act, and the rules and
regulations thereunder, and do not include any untrue statement of a material
fact or omit to state any material fact required to be stated or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
(d) The
Transferring Fund is not, and the execution, delivery, and performance of this
Agreement (subject to shareholder approval) will not result in the violation
of
any material provision of Unified's Declaration of Trust or By-Laws or of any
material agreement, indenture, instrument, contract, lease, or other undertaking
to which the Transferring Fund is a party or by which it is bound.
(e) The
Transferring Fund has no material contracts or other commitments (other than
this Agreement) that will be terminated with liability to it prior to the
Closing Date, except for liabilities, if any, to be discharged or reflected
in
the Statement of Assets and Liabilities as provided in paragraph 1.3
hereof.
(f) Except
as
otherwise disclosed in writing to and accepted by the Acquiring Fund, no
litigation, administrative proceeding, or investigation of or before any court
or governmental body is presently pending or to its knowledge threatened against
the Transferring Fund or any of its properties or assets, which, if adversely
determined, would materially and adversely affect its financial condition,
the
conduct of its business, or the ability of the Transferring Fund to carry out
the transactions contemplated by this Agreement. The Transferring Fund knows
of
no facts that might form the basis for the institution of such proceedings
and
are not a party to or subject to the provisions of any order, decree, or
judgment of any court or governmental body that materially and adversely affects
the Transferring Fund's business or its ability to consummate the transactions
contemplated herein.
(g) The
financial statements of the Transferring Fund are in accordance with generally
accepted accounting principles, and such statements (copies of which have been
furnished to the Acquiring Funds) fairly reflect the financial condition of
the
Transferring Fund as of August 31, 2005 in
all
material respects as of that date, and there are no known contingent liabilities
of the Transferring Fund as of that date not disclosed in such
statements.
(h) Since
August 31, 2005, there have been no material adverse changes in the Transferring
Fund's financial condition, assets, liabilities or business (other than changes
occurring in the ordinary course of business), or any incurrence by the
Transferring Fund of indebtedness maturing more than one year from the date
such
indebtedness was incurred, except as otherwise disclosed to and accepted by
the
Acquiring Fund. For the purposes of this subparagraph (h), a decline in the
net
asset value of the Transferring Fund shall not constitute a material adverse
change.
(i) At
the
Closing Date, all federal and other tax returns and reports of the Transferring
Fund required by law to be filed by such date, shall have been filed, and all
federal and other taxes shown due on such returns and reports shall have been
paid, or provision shall have been made for the payment thereof. To the best
of
the Transferring Fund's knowledge, no such return is currently under audit,
and
no assessment has been asserted with respect to such returns.
(j) All
issued and outstanding shares of the Transferring Fund are, and at the Closing
Date, will be duly and validly issued and outstanding, fully paid and
non-assessable by the Transferring Fund. All of the issued and outstanding
shares of the Transferring Fund will, at the time of the Closing Date, be held
by the persons and in the amounts set forth in the records of the Transferring
Fund's transfer agent as provided in paragraph 3.4. The Transferring Fund has
no
outstanding options, warrants, or other rights to subscribe for or purchase
any
of the Transferring Fund shares, and has no outstanding securities convertible
into any of the Transferring Fund shares.
(k) At
the
Closing Date, the Transferring Fund will have good and marketable title to
the
Transferring Fund's assets to be transferred to the Acquiring Fund pursuant
to
paragraph 1.2, and full right, power, and authority to sell, assign, transfer,
and deliver such assets hereunder, and, upon delivery and payment for such
assets. Upon delivery and payment for such assets, the Acquiring Fund will
acquire good and marketable title, subject to no restrictions on the full
transfer of such assets, including such restrictions as might arise under the
1933 Act, other than as disclosed to and accepted by the Acquiring
Fund.
(l) The
execution, delivery, and performance of this Agreement have been duly authorized
by all necessary action on the part of the Transferring Fund. Subject to
approval by the Transferring Fund Shareholders, this Agreement constitutes
a
valid and binding obligation of the Transferring Fund, enforceable in accordance
with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors'
rights and to general equity principles.
(m) The
information to be furnished by the Transferring Fund for use in no-action
letters, applications for orders, registration statements, proxy materials,
and
other documents that may be necessary in connection with the transactions
contemplated herein shall be accurate and complete in all material respects
and
shall comply in all material respects with federal securities laws and other
laws and regulations.
(n) From
the
effective date of the Registration Statement (as defined in paragraph 5.7),
through the time of the meeting of the Transferring Fund Shareholders and on
the
Closing Date, any written information furnished by the Transferring Fund with
respect to the Transferring Fund for use in the Prospectus/Proxy Statement
(as
defined in paragraph 5.7), the Registration Statement or any other materials
provided in connection with the Reorganization, does not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated or necessary to make the statements, in light of the
circumstances under which such statements were made, not materially
misleading.
(o) The
Transferring Fund has elected to qualify and has qualified as a "regulated
investment company" (a "RIC") under the Code as of and since its first taxable
period; has been a RIC under the Code at all times since the end of its first
taxable year when it so qualified; and qualifies and shall continue to qualify
as a RIC under the Code for its taxable year ending upon its
liquidation.
(p) No
governmental consents, approvals, authorizations or filings are required under
the 1933 Act, the Securities Exchange Act of 1934 (the "1934 Act"), the 1940
Act
or Ohio law for the execution of this Agreement by Unified, for itself and
on
behalf of each Transferring Fund, except for the effectiveness of the
Registration Statement and such other consents, approvals, authorizations and
filings as have been made or received, and such consents, approvals,
authorizations and filings as may be required subsequent to the Closing Date,
it
being understood, however, that this Agreement and the transactions contemplated
herein must be approved by the shareholders of the Transferring Fund as
described in paragraph 5.2.
4.2 REPRESENTATIONS
OF THE ACQUIRING FUNDS. Memorial and each Acquiring Fund represent and warrant
to Unified and the respective Transferring Fund as follows:
(a) The
Acquiring Fund is a separate series of a business trust, duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) The
Acquiring Fund is a separate series of a Delaware business trust that is
registered as an open-end management investment company, and such Delaware
business trust's registration with the Commission as an investment company
under
the 1940 Act is in full force and effect. The registration statement creating
the Acquiring Fund as a series of Memorial will be effective on or before the
Closing Date.
(c) The
current prospectus and Statement of Additional Information of the Acquiring
Fund
conform in all material respects to the applicable requirements of the 1933
Act
and the 1940 Act and the rules and regulations thereunder, and do not include
any untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make such statements therein, in light
of
the circumstances under which they were made, not misleading.
(d) The
Acquiring Fund is not, and the execution, delivery and performance of this
Agreement will not result in a violation of any material provision of Memorial's
Instrument of Trust or of any material agreement, indenture, instrument,
contract, lease, or other undertaking to which the Acquiring Fund is a party
or
by which it is bound.
(e) Except
as
otherwise disclosed in writing to the Transferring Fund and accepted by the
Transferring Fund, no litigation, administrative proceeding or investigation
of
or before any court or governmental body is presently pending, or to its
knowledge, threatened against the Acquiring Fund or any of its properties or
assets, which, if adversely determined, would materially and adversely affect
its financial condition and the conduct of its business or the ability of the
Acquiring Fund to carry out the transactions contemplated by this Agreement.
The
Acquiring Fund knows of no facts that might form the basis for the institution
of such proceedings and it is not a party to or subject to the provisions of
any
order, decree, or judgment of any court or governmental body that materially
and
adversely affects its business or its ability to consummate the transaction
contemplated herein.
(f) The
financial statements of the Acquiring Fund (other than the Memorial/Monteagle
Value Fund and the Memorial/Monteagle Large Cap Growth Fund, which are not
yet
in operation and, therefore, do not have financial statements) are in accordance
with generally accepted accounting principles, and such statements (copies
of
which have been furnished to the Transferring Funds) fairly reflect the
financial condition of the Acquiring Fund as of December 31, 2005 in all
material respects as of that date, and there are no known contingent liabilities
of the Acquiring Fund as of that date not disclosed in such statements.
(g) Since
December 31, 2005, there have been no material adverse changes in the Acquiring
Fund's financial condition, assets, liabilities for business (other than changes
occurring in the ordinary course of business), or any incurrence by the
Acquiring Fund of indebtedness maturing more than one year from the date such
indebtedness was incurred, except as otherwise disclosed to and accepted by
the
Transferring Fund. For the purposes of this subparagraph (g), a decline in
the
net asset value of the Acquiring Fund shall not constitute a material adverse
change.
(h) At
the
Closing Date, all federal and other tax returns and reports of the Acquiring
Fund (other than the Memorial/Monteagle Value Fund and the Memorial/Monteagle
Large Cap Growth Fund, which are not yet in operation) required by law to be
filed by such date, shall have been filed, and all federal and other taxes
shown
due on such returns and reports shall have been paid, or provision shall have
been made for the payment thereof. 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.
(i) All
issued and outstanding Acquiring Fund Shares are, and at the Closing Date will
be, duly and validly issued and outstanding, fully paid and non-assessable
by
the Acquiring Fund. The Acquiring Fund has no outstanding options, warrants,
or
other rights to subscribe for or purchase any Acquiring Fund Shares, and there
are no outstanding securities convertible into any Acquiring Fund
Shares.
(j) The
execution, delivery, and performance of this Agreement have been duly authorized
by all necessary action on the part of the Acquiring Fund, and this Agreement
constitutes a valid and binding obligation of the Acquiring Fund, enforceable
in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors'
rights and to general equity principles.
(k) The
information to be furnished by the Acquiring Fund for use in no-action letters,
applications for orders, registration statements, proxy materials, and other
documents that may be necessary in connection with the transactions contemplated
herein shall be accurate and complete in all material respects and shall comply
in all material respects with federal securities laws and other laws and
regulations.
(l) From
the
effective date of the Registration Statement (as defined in paragraph 5.7),
through the time of the meeting of the Transferring Fund Shareholders and on
the
Closing Date, any written information furnished by Memorial with respect to
the
Acquiring Fund for use in the Prospectus/Proxy Statement (as defined paragraph
5.7), the Registration Statement or any other materials provided in connection
with the Reorganization, does not and will not contain any untrue statement
of a
material fact or omit to state a material fact required to be stated or
necessary to make the statements, in light of the circumstances under which
such
statements were made, not materially misleading.
(m) The
Acquiring Fund agrees to use all reasonable efforts to obtain the approvals
and
authorizations required by the 1933 Act, the 1940 Act, and any state blue sky
or
securities laws as it may deem appropriate in order to continue its operations
after the Closing Date.
(n) No
governmental consents, approvals, authorizations or filings are required under
the 1933 Act, the 1934 Act, the 1940 Act or Delaware law for the execution
of
this Agreement by Memorial, for itself and on behalf of the Acquiring Fund,
or
the performance of the Agreement by Memorial (except as provided in paragraph
4.3), for itself and on behalf of the Acquiring Fund, except for the
effectiveness of the Registration Statement and such other consents, approvals,
authorizations and filings as have been made or received, and except for such
consents, approvals, authorizations and filings as may be required subsequent
to
the Closing Date.
(o) The
Acquiring Fund intends to qualify as a RIC under the Code, and with respect
to
each Acquiring Fund that has conducted material investment operations prior
to
the Closing Date, the Acquiring Fund has elected to qualify and has qualified
as
a RIC under the Code as of and since its first taxable period; has been a RIC
under the Code at all times since the end of its first taxable year when it
so
qualified; and qualifies and shall continue to qualify as a RIC under the Code
for its current taxable year.
4.3 REPRESENTATIONS
OF MEMORIAL. Memorial represents and warrants to its as follows:
(a) Memorial
has filed a post-effective amendment to its registration statement on Form
N-1A
for the purpose of (i) changing the name of the Memorial Funds to "Monteagle
Funds", (ii) changing the name of the Memorial Government Bond Fund to
"Monteagle Fixed Income Fund", (iii) amending the Memorial Government Bond
Fund's investment objective, policies and strategies to be substantially similar
to those of the Monteagle Fixed Income Fund, (iv) creating two new series,
the
Memorial/Monteagle Value Fund and the Memorial/Monteagle Large Cap Growth Fund,
(v) disclosing the appointment of Nashville Capital Corporation as the
investment manager for the Memorial Government Bond Fund, the Memorial/Monteagle
Value Fund and the Memorial/Monteagle Large Cap Growth Fund, and (vi) disclosing
the appointment of Xxxx and Xxxxxxx, Inc., Xxxxxxxx Investment Group, Inc.
and
Northstar Capital Management, Inc. as sub-advisors to the Memorial Government
Bond Fund, the Memorial/Monteagle Value Fund and the Memorial/Monteagle Large
Cap Growth Fund, respectively. The post-effective amendment will be effective
on
or before the Closing Date.
(b) On
or
before the Closing Date, shareholders of the Memorial Government Bond shall
have
approved (i) amendments to the Memorial Government Bond Fund's investment
objective, policies and strategies so that they are substantially similar to
those of the Monteagle Fixed Income Fund, (ii) an investment management
agreement with Nashville Capital Corporation and (iii) a sub-advisory agreement
with Xxxx & Xxxxxxx, Inc.
ARTICLE
V
COVENANTS
OF EACH ACQUIRING FUND AND EACH TRANSFERRING FUND
5.1 OPERATION
IN ORDINARY COURSE. Subject to paragraphs 4.3 and 8.5, each Acquiring Fund
and
Transferring Fund will operate its respective business in the ordinary course
between the date of this Agreement and the Closing Date, it being understood
that such ordinary course of business will include customary dividends and
distributions and shareholder redemptions.
5.2
APPROVAL
OF SHAREHOLDERS. Unified will call a special meeting of Transferring Fund
Shareholders to consider and act upon this Agreement and to take all other
action necessary to obtain approval of the transactions contemplated
herein.
5.3 INVESTMENT
REPRESENTATION. Each Transferring Fund covenants that the Acquiring Fund Shares
to be issued pursuant to this Agreement are not being acquired for the purpose
of making any distribution, other than in connection with the Reorganization
and
in accordance with the terms of this Agreement.
5.4
ADDITIONAL
INFORMATION. Each Transferring Fund will assist its respective Acquiring Fund
in
obtaining such information as the Acquiring Fund reasonably requests concerning
the beneficial ownership of the Transferring Fund's shares.
5.5
FURTHER
ACTION. Subject to the provisions of this Agreement, each Acquiring Fund and
its
respective Transferring Fund will each take or cause to be taken, all action,
and do or cause to be done, all things reasonably necessary, proper or advisable
to consummate and make effective the transactions contemplated by this
Agreement, including any actions required to be taken after the Closing
Date.
5.6 STATEMENT
OF EARNINGS AND PROFITS. As promptly as practicable, but in any case within
sixty days after the applicable Closing Date, each Transferring Fund shall
furnish its respective Acquiring Fund, in such form as is reasonably
satisfactory to the Acquiring Fund, a statement of the earnings and profits
of
the Transferring Fund for federal income tax purposes that will be carried
over
by the Acquiring Fund as a result of Section 381 of the Code, and which will
be
reviewed by Xxxxx XxXxxxx, Ltd. and certified by the Unified's
Treasurer.
5.7 PREPARATION
OF FORM N-14 REGISTRATION STATEMENT. Memorial will prepare and file with the
Commission a registration statement on Form N-14 (the "Registration Statement"),
under the 1933 Act, relating to the Acquiring Fund Shares, which, without
limitation, shall include a proxy statement of each Transferring Fund and the
prospectus of each Acquiring Fund relating to the transaction contemplated
by
this Agreement (the "Prospectus/Proxy Statement"). The Registration Statement
shall be in compliance with the 1933 Act, the 1934 Act and the 1940 Act. Each
Transferring Fund will provide its respective Acquiring Fund with the materials
and information necessary to prepare the Prospectus/Proxy Statement for
inclusion in the Registration Statement in connection with the meeting of the
Transferring Funds Shareholders to consider the approval of this Agreement
and
the transactions contemplated herein.
5.8
INDEMNIFICATION.
(a) Memorial
will assume all liabilities and obligations of Unified relating to any
obligation of Unified to indemnify its current and former Trustees and officers,
acting in their capacities as such, to the fullest extent permitted by law
and
Unified's Declaration of Trust, as in effect as of the date of this Agreement.
Without limiting the foregoing, Memorial agrees that all rights to
indemnification and all limitations of liability existing in favor of the
current and former Trustees and officers, acting in their capacities as such,
under the Unified's Declaration of Trust as in effect as of the date of this
Agreement shall survive the Reorganization and shall continue in full force
and
effect, without any amendment thereto, and shall constitute rights that may
be
asserted against Memorial, its successors or assigns.
(b) Each
Acquiring Fund agrees to indemnify and hold harmless its respective Transferring
Fund and each of the Transferring Fund's Trustees and officers from and against
any and all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Transferring Fund or any of its Trustees or officers
may become subject, insofar as any such loss, claim, damage, liability or
expense (or actions with respect thereto) arises out of or is based on any
breach by the Acquiring Fund of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
(c) Each
Transferring Fund agrees to indemnify and hold harmless its respective Acquiring
Fund and each of the Acquiring Fund's Trustees and officers from and against
any
and all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquiring Fund or any of its Trustees or officers
may become subject, insofar as any such loss, claim damage liability or expense
(or actions with respect thereto) arises out of or is based on any breach by
the
Transferring Fund of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF EACH TRANSFERRING FUND
The
obligations of each Transferring Fund to consummate the transactions provided
for herein shall be subject, at its election, to the performance by its
respective Acquiring Fund of all the obligations to be performed by it pursuant
to this Agreement on or before the Closing Date, and, in addition, subject
to
the following conditions:
6.1 All
representations, covenants, and warranties of the Acquiring Fund contained
in
this Agreement shall be true and correct in all material respects as of the
date
hereof and as of the Closing Date, with the same force and effect as if made
on
and as of that Closing Date. Each Acquiring Fund shall have delivered to its
respective Transferring Fund a certificate executed in the Acquiring Fund's
name
by Memorial's President or Vice President and its Treasurer or Assistant
Treasurer, in form and substance satisfactory to the Transferring Fund and
dated
as of the Closing Date, to such effect and as to such other matters as the
Transferring Fund shall reasonably request.
6.2 The
Transferring Funds shall have received on the Closing Date an opinion from
Xxxxxxx X. Xxxxxx, Xx., counsel to Memorial, dated as of such Closing Date,
in a
form reasonably satisfactory to the Transferring Funds, covering the following
points:
(a) Memorial
is a business trust duly organized, validly existing and in good standing under
the laws of the State of Delaware, and, to such counsel's knowledge, has the
power to own all of its properties and assets and to carry on its business
as
presently conducted.
(b) Memorial
is registered as an investment company under the 1940 Act, and, to such
counsel's knowledge, such registration with the Commission is in full force
and
effect.
(c) This
Agreement has been duly authorized, executed, and delivered by Memorial on
behalf of each Acquiring Fund and, assuming due authorization, execution and
delivery of this Agreement by the Transferring Funds, is a valid and binding
obligation of the Acquiring Funds enforceable against each Acquiring Fund in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and other laws relating to
or
affecting creditors' rights generally and to general equity
principles.
(d) Assuming
that a consideration of not less than the net asset value of Acquiring Fund
Shares has been paid, Acquiring Fund Shares to be issued and delivered to each
Transferring Fund on behalf of the Transferring Fund Shareholders, as provided
by this Agreement, are duly authorized and upon such delivery will be legally
issued and outstanding and fully paid and non-assessable, and no shareholder
of
an Acquiring Fund has any preemptive rights with respect to Acquiring Fund
Shares.
(e) The
Registration Statement has been declared effective by the Commission and to
such
counsel's knowledge, no stop order under the 1933 Act pertaining thereto has
been issued, and to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the United
States or the State of Delaware is required for consummation by the Acquiring
Funds of the transactions contemplated herein, except as have been obtained
under the 1933 Act, the 1934 Act and the 1940 Act, and as may be required under
state securities laws.
(f) The
execution and delivery of this Agreement did not, and the consummation of the
transactions contemplated herein will not, result in a violation of Memorial's
Instrument of Trust or any provision of any material agreement, indenture,
instrument, contract, lease or other undertaking (in each case known to such
counsel) to which an Acquiring Fund is a party or by which an Acquiring Fund
or
any of its properties may be bound or, to the knowledge of such counsel, result
in the acceleration of any obligation or the imposition of any penalty, under
any agreement, judgment, or decree to which an Acquiring Fund is a party or
by
which it is bound.
(g) In
the
ordinary course of such counsel's representation of the Acquiring Funds, and
without having made any investigation, such counsel does not know of any legal
or governmental proceedings (only insofar as they relate to an Acquiring Fund)
existing on or before the effective date of the Registration Statement or the
Closing Date that are required to be described in the Registration Statement
or
to be filed as exhibits to the Registration Statement that are not described
or
filed as required.
(h) 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 for consummation by an Acquiring Fund of the transactions contemplated
herein, except as have been obtained under the 1933 Act, the 1934 Act and the
1940 Act, and as may be required under state securities laws.
(i) In
the
ordinary course of such counsel's representation of the Acquiring Funds, and
without having made any investigation, and except as otherwise disclosed, such
counsel is not aware of any litigation or administrative proceeding of or before
any court or governmental body that is presently pending or threatened as to
an
Acquiring Fund or any of its properties or assets. In the ordinary course of
such counsel's representation of the Acquiring Funds, and without having made
any investigation, to the knowledge of such counsel, the Acquiring Funds are
not
a party to or subject to the provisions of any order, decree or judgment of
any
court or governmental body that materially and adversely affects the Acquiring
Funds' business, other than as previously disclosed in the Registration
Statement.
In
this
paragraph 6.2, references to the Prospectus/Proxy Statement include and relate
to only the text of such Prospectus/Proxy Statement and not to any exhibits
or
attachments thereto or to any documents incorporated by reference
therein.
6.3 (a)
The
post-effective amendment on Form N-1A filed by Memorial with the SEC to (i)
change the name of the Memorial Funds to "Monteagle Funds", (ii) change the
name
of the Memorial Government Bond Fund to "Monteagle Fixed Income Fund", (iii)
amend the Memorial Government Bond Fund's investment objective, policies and
strategies to be substantially similar to those of the Monteagle Fixed Income
Fund, (iv) create two new series, the Memorial/Monteagle Value Fund and the
Memorial/Monteagle Large Cap Growth Fund, (v) disclose the appointment of
Nashville Capital Corporation as the investment manager for the Memorial
Government Bond Fund, the Memorial/Monteagle Value Fund and the
Memorial/Monteagle Large Cap Growth Fund, and (vi) disclose the appointment
of
Xxxx and Xxxxxxx, Inc., Xxxxxxxx Investment Group, Inc. and Northstar Capital
Management, Inc. as sub-advisors to the Memorial Government Bond Fund, the
Memorial/Monteagle Value Fund and the Memorial/Monteagle Large Cap Growth Fund,
respectively, has been declared effective by the Commission.
(b) Shareholders
of the Memorial Government Bond Fund have approved (i) amendments to the
Memorial Government Bond Fund's investment objective, policies and strategies
so
that they are substantially similar to those of the Monteagle Fixed Income
Fund,
(ii) an investment management agreement with Nashville Capital Corporation
and
(iii) a sub-advisory agreement with Xxxx & Xxxxxxx, Inc.
6.4 Subject
to paragraph 6.3, as of the Closing Date with respect to the Reorganization
of
the Transferring Fund, there shall have been no material change in the
investment objective, policies and restrictions nor any material change in
the
investment management fees, fee levels payable pursuant to the 12b-1 plan of
distribution, other fees payable for services provided to each Acquiring Fund,
fee waiver or expense reimbursement undertakings, or sales loads of the
Acquiring Funds from those fee amounts, undertakings and sales load amounts
of
the Acquiring Fund described in the Prospectus/Proxy Statement.
6.5 For
the
period beginning at the Closing Date and ending not less than three years
thereafter, Memorial, its successor or assigns shall provide, or cause to be
provided, liability coverage at least as comparable to the liability coverage
currently applicable to both former and current Trustees and officers of
Unified, covering the actions of such Trustees and officers of Unified for
the
period they served as such.
6.6 Unified
shall have received a letter of indemnification from the Nashville Capital
Corporation stating that it agrees to indemnify Unified, its employees, agents,
trustees and officers (each, an “Indemnified Party”) against and from any and
all claims, demands, actions, suits, judgments, liabilities, losses, damages,
costs, charges, reasonable counsel fees and other direct (but not indirect,
special or consequential) expenses arising out of any shareholder litigation,
SEC staff inquiries, investigations or SEC disciplinary action taken with
respect to any of the Transferring Funds, except to the extent that such claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, fees and expenses are a result of breach of the Agreement by an
Indemnified Party.
ARTICLE
VII
CONDITIONS
PRECEDENT TO OBLIGATIONS OF EACH ACQUIRING FUND
The
obligations of each Acquiring Fund to consummate the transactions provided
for
herein shall be subject, at their election, to the performance by each
corresponding Transferring Fund of all the obligations to be performed by the
Transferring Fund pursuant to this Agreement, on or before the Closing Date
and,
in addition, shall be subject to the following conditions:
7.1
All
representations, covenants, and warranties of a Transferring Fund contained
in
this Agreement shall be true and correct in all material respects as of the
date
hereof and as of the Closing Date, with the same force and effect as if made
on
and as of such Closing Date. Each Transferring Fund shall have delivered to
its
respective Acquiring Fund on such Closing Date a certificate executed in the
Transferring Fund's name by Unified's President or Vice President and the
Treasurer or Assistant Treasurer, in form and substance satisfactory to the
Acquiring Fund and dated as of such Closing Date, to such effect and as to
such
other matters as the Acquiring Fund shall reasonably request.
7.2 The
Transferring Fund shall have delivered to its respective Acquiring Fund a
statement of the Transferring Fund's assets and liabilities, together with
a
list of the selling Fund's portfolio securities showing the tax costs of such
securities by lot and the holding periods of such securities, as of the Closing
Date, certified by the Treasurer of Unified.
ARTICLE
VIII
FURTHER
CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH
ACQUIRING
FUND AND TRANSFERRING FUND
If
any of
the conditions set forth below do not exist on or before the Closing Date with
respect to each Transferring Fund or its respective Acquiring Fund, the other
party to this Agreement shall, at its option, not be required to consummate
the
transactions contemplated by this Agreement:
8.1 This
Agreement and the transactions contemplated herein, with respect to each
Transferring Fund, shall have been approved by the requisite vote of the holders
of the outstanding shares of the respective Transferring Fund in accordance
with
Ohio law and the provisions of Unified's Declaration of Trust and By-Laws.
Certified copies of the resolutions evidencing such approval shall have been
delivered to the respective Acquiring Fund. Notwithstanding anything herein
to
the contrary, neither an Acquiring Fund nor a Transferring Fund may waive the
conditions set forth in this paragraph 8.1.
8.2 On
the
Closing Date, the Commission shall not have issued an unfavorable report under
Section 25(b) of the 1940 Act, or instituted any proceeding seeking to enjoin
the consummation of the transactions contemplated by this Agreement under
Section 25(c) of the 1940 Act. Furthermore, no action, suit or other proceeding
shall be threatened or pending before any court or governmental agency in which
it is sought to restrain or prohibit, or obtain damages or other relief in
connection with this Agreement or the transactions contemplated
herein.
8.3 All
required consents of other parties and all other consents, orders, and permits
of federal, state and local regulatory authorities (including those of the
Commission and of state blue sky securities authorities, including any necessary
"no-action" positions and exemptive orders from such federal and state
authorities) to permit consummation of the transactions contemplated herein
shall have been obtained, except where failure to obtain any such consent,
order, or permit would not involve a risk of a material adverse effect on the
assets or properties of an Acquiring Fund or a Transferring Fund, provided
that
either party hereto may waive any such conditions for itself.
8.4 The
Registration Statement shall have become effective under the 1933 Act and no
stop orders suspending the effectiveness thereof shall have been issued. To
the
best knowledge of the parties to this Agreement, no investigation or proceeding
for that purpose shall have been instituted or be pending, threatened or
contemplated under the 1933 Act. In addition, each of the following events
shall
have occurred:
(a) The
registration statement on Form N-1A for Memorial, including the post effective
amendment to (i) change the name of the Memorial Funds to "Monteagle Funds",
(ii) change the name of the Memorial Government Bond Fund to "Monteagle Fixed
Income Fund", (iii) amend the Memorial Government Bond Fund's investment
objective, policies and strategies to be substantially similar to those of
the
Monteagle Fixed Income Fund, (iv) create two new series, the Memorial/Monteagle
Value Fund and the Memorial/Monteagle Large Cap Growth Fund, (v) disclose the
appointment of Nashville Capital Corporation as the investment manager for
the
Memorial Government Bond Fund, the Memorial/Monteagle Value Fund and the
Memorial/Monteagle Large Cap Growth Fund, and (vi) disclose the appointment
of
Xxxx and Rusling, Inc., Xxxxxxxx Investment Group, Inc. and Northstar Capital
Management, Inc. as sub-advisors to the Memorial Government Bond Fund, the
Memorial/Monteagle Value Fund and the Memorial/Monteagle Large Cap Growth Fund,
respectively,
(b) Shareholders
of the Memorial Government Bond Fund have approved (i) amendments to the
Memorial Government Bond Fund's investment objective, policies and strategies
so
that they are substantially similar to those of the Monteagle Fixed Income
Fund,
(ii) an investment management agreement with Nashville Capital Corporation
and
(iii) a sub-advisory agreement with Xxxx & Rusling, Inc.
8.5 Each
Transferring Fund shall have declared and paid a dividend or dividends, which,
together with all previous such dividends, shall have the effect of distributing
to its shareholders all of the Transferring Fund's net investment company
taxable income for all taxable periods ending on or prior to the Closing Date
(computed without regard to any deduction for dividends paid) and all of its
net
capital gains realized in all taxable periods ending on or prior to such Closing
Date (after reduction for any capital loss carry forward).
8.6 The
parties shall have received a favorable opinion of Rabil, Ropka, Kingett &
Xxxxxxx, L.L. addressed to each Acquiring Fund and Transferring Fund
substantially to the effect that for federal income tax purposes with respect
to
each Transferring Fund:
(a) The
transfer of all of the Transferring Fund's assets in exchange for Acquiring
Fund
Shares and the assumption by the Acquiring Fund of the liabilities of the
Transferring Fund (followed by the distribution of Acquiring Fund Shares to
the
Transferring Fund Shareholders and the termination of the Transferring Fund)
will constitute a "reorganization" within the meaning of Section 368(a) of
the
Code and the Acquiring Fund and the Transferring Fund will each be a "party
to a
reorganization" within the meaning of Section 368(b) of the Code.
(b) No
gain
or loss will be recognized by the Acquiring Fund upon the receipt of the assets
of the Transferring Fund solely in exchange for Acquiring Fund Shares and the
assumption by the Acquiring Fund of the liabilities of the Transferring
Fund.
(c) No
gain
or loss will be recognized by the Transferring Fund upon the transfer of the
Transferring Fund's assets to the Acquiring Fund in exchange for Acquiring
Fund
Shares and the assumption by the Acquiring Fund of the liabilities of the
Transferring Fund or upon the distribution (whether actual or constructive)
of
Acquiring Fund Shares to Transferring Fund Shareholders in exchange for such
shareholders' shares of the Transferring Fund.
(d) No
gain
or loss will be recognized by the Transferring Fund Shareholders upon the
exchange of their Transferring Fund shares for Acquiring Fund Shares in the
Reorganization.
(e) The
aggregate tax basis for Acquiring Fund Shares received by each Transferring
Fund
Shareholder pursuant to the Reorganization will be the same as the aggregate
tax
basis of the Transferring Fund shares exchanged therefor by such shareholder.
The holding period of Acquiring Fund Shares to be received by each Transferring
Fund Shareholder will include the period during which the Transferring Fund
shares exchanged therefore were held by such shareholder, provided the
Transferring Fund shares are held as capital assets at the time of the
Reorganization.
(f) The
tax
basis of the Transferring Fund's assets acquired by the Acquiring Fund will
be
the same as the tax basis of such assets to the Transferring Fund immediately
prior to the Reorganization. The holding period of the assets of the
Transferring Fund in the hands of the Acquiring Fund will include the period
during which those assets were held by the Transferring Fund.
(g) The
Acquiring Fund will succeed to and take into account the items of the
Transferring 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 applicable regulations thereunder.
Such
opinion shall be based on customary assumptions and such representations as
Rabil, Ropka, Kingett & Xxxxxxx, L.L. may reasonably request, and each
Transferring Fund and Acquiring Fund will cooperate to make and certify the
accuracy of such representations. Notwithstanding anything herein to the
contrary, neither an Acquiring Fund nor a Transferring Fund may waive the
conditions set forth in this paragraph 8.6.
ARTICLE
IX
EXPENSES
9.1 Except
as
otherwise provided for herein, Nashville Capital Corporation, or an affiliate
thereof, shall bear all expenses of the transactions contemplated by this
Agreement. Such expenses include, without limitation: (a) expenses associated
with the preparation and filing of the Registration Statement/Proxy Statement
on
Form N-14 under the 1933 Act covering Acquiring Fund Shares to be issued
pursuant to the provisions of this Agreement; (b) postage; (c) printing; (d)
accounting fees; (e) legal and audit fees; (f) solicitation costs of the
transactions, (g) the cost of winding up and liquidating the Transferring Funds,
and (h) all fees listed on the closing/merger schedule provided by United Fund
Services. Nashville Capital Corporation, or an affiliate thereof, shall remain
liable for expenses in the event this Agreement is terminated pursuant to
paragraph 11.1.
ARTICLE
X
ENTIRE
AGREEMENT; SURVIVAL
10.1 Memorial,
on behalf of each Acquiring Fund, and Unified, on behalf of each Transferring
Fund, agrees that neither party has made to the other party any representation,
warranty and/or covenant not set forth herein and that this Agreement
constitutes the entire agreement between the parties.
10.2 The
representation, warranties, and covenants contained in this Agreement or in
any
document delivered pursuant to or in connection with this Agreement, shall
survive the consummation of the transactions contemplated hereunder. The
covenants to be performed after the Closing Date, and the obligations of each
of
the Acquiring Funds, shall continue in effect beyond the consummation of the
transactions contemplated hereunder.
ARTICLE
XI
TERMINATION
11.1 This
Agreement may be terminated by the mutual agreement of Memorial and Unified.
In
addition, either Memorial or Unified may at its option terminate this Agreement
at or prior to either Closing Date due to:
(a) a
breach
by the other of any representation, warranty, or agreement contained herein
to
be performed at or prior to the Closing Date, if not cured within 30
days;
(b) a
condition herein expressed to be precedent to the obligations of the terminating
party that has not been met and it reasonably appears that it will not or cannot
be met; or
(c) a
determination by the party’s Board of Trustees, as appropriate, that the
consummation of the transactions contemplated herein is not in the best interest
of the party, and to give notice to the other party hereto.
11.2
In
the
event of any such termination, in the absence of willful default, there shall
be
no liability for damages on the part of either an Acquiring Fund, a Transferring
Fund, Memorial, Unified, the respective Trustees or officers, to the other
party
or its Trustees or officers, but paragraph 9.1 shall continue to
apply.
ARTICLE
XII
AMENDMENTS
12.1 This
Agreement may be amended, modified, or supplemented in such manner as may be
mutually agreed upon in writing by the authorized officers of each Transferring
Fund and Acquiring Fund; provided, however, that following the meeting of the
Transferring Fund Shareholders called by a Transferring Fund pursuant to
paragraph 5.2 of this Agreement, no such amendment may have the effect of
changing the provisions to the detriment of such shareholders.
ARTICLE
XIII
HEADINGS;
COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION
OF LIABILITY
13.1 The
Article and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
13.2 This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original.
13.3
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Ohio, without giving effect to the conflicts of laws provisions
thereof.
13.4 This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns, but, except as provided in this paragraph,
no
assignment or transfer hereof or of any rights or obligations hereunder shall
be
made by any party without the written consent of the other party. Nothing herein
expressed or implied is intended or shall be construed to confer upon or give
any person, firm, or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason
of
this Agreement.
13.5 It
is
expressly agreed that the obligations of each Acquiring Fund hereunder shall
not
be binding upon any of the Trustees, shareholders, nominees, officers, agents,
or employees of Memorial personally, but shall bind only the trust property
of
the Acquiring Fund, as provided in the Agreement and Declaration of Trust of
Memorial. The execution and delivery of this Agreement have been authorized
by
the Trustees of Memorial on behalf of each Acquiring Fund and signed by
authorized officers of Memorial, acting as such. Such authorization by such
Trustees and such execution and delivery by such officers shall not be deemed
to
have been made by any of them individually or to impose any liability on any
of
them personally, but shall bind only the trust property of each Acquiring Fund
as provided in Memorial's Agreement and Declaration of Trust.
13.6 It
is
expressly agreed that the obligations of each Acquired Fund hereunder shall
not
be binding upon any of the Trustees, shareholders, nominees, officers, agents,
or employees of Unified personally, but shall bind only the trust property
of
the Acquired Fund, as provided in the Agreement and Declaration of Trust of
Unified. The execution and delivery of this Agreement have been authorized
by
the Trustees of Unified on behalf of each Acquired Fund and signed by authorized
officers of Unified, acting as such. Such authorization by such Trustees and
such execution and delivery by such officers shall not be deemed to have been
made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of each Acquiring Fund as
provided in Unified's Agreement and Declaration of Trust.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement, all as of the
date first written above.
MEMORIAL
FUNDS on behalf of the Acquiring
Funds
By:___________________________
Name: Xxxx
Xxxxxxx Xxxxxxxx
Title: President
UNIFIED
SERIES TRUST, on behalf of the Transferring
Funds
By:___________________________
Name: Xxxxxxx
X. Xxxxxxx
Title: President
NASHVILLE
CAPITAL CORPORATION, with respect
to Paragraph 9.1 only
By:____________________________
Name: Xxxxx
Xxxxxx Xxxxxxx
Title: President
Schedule
A
Shareholders
of each Transferring Fund will receive shares of the corresponding Acquiring
Fund
|
Unified
Fund (Transferring Fund)
|
Memorial
Fund (Acquiring Fund)
|
|
Monteagle
Fixed Income Fund
|
Memorial
Government Bond Fund
|
|
Monteagle
Value Fund
|
Memorial/Monteagle
Value Fund*
|
|
Monteagle
Large Cap Growth Fund
|
Memorial/Monteagle
Large Cap Growth Fund*
|
*
The
Acquiring Fund is a newly created series of Memorial Funds.
