Exhibit 4
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement") is made as of
October 26, 2007, by and between Natixis Value Fund (the "Acquired Fund"), a
series of Natixis Funds Trust I, a Massachusetts business trust (the "Trust"),
and Xxxxxx Xxxxxx Value Fund (the "Acquiring Fund"), a series of Xxxxxx Xxxxxx
Funds II, a Massachusetts business trust (the "Xxxxxx Trust").
PLAN OF REORGANIZATION
(a) The Acquired Fund shall sell, assign, convey, transfer and deliver to
the Acquiring Fund on the Exchange Date (as defined in Section 6) all of its
properties and assets, subject to liabilities. In consideration therefor, the
Acquiring Fund shall, on the Exchange Date, assume all of the liabilities of
the Acquired Fund existing at the Valuation Time (as defined in Section 3(c))
and deliver to the Acquired Fund a number of full and fractional Class A, Class
B, Class C and Class Y shares of beneficial interest of the Acquiring Fund (the
"Merger Shares") having for each such class an aggregate net asset value equal
to the value of the assets of the Acquired Fund attributable to such class
transferred to the Acquiring Fund on such date less the value of the
liabilities of the Acquired Fund attributable to such class assumed by the
Acquiring Fund on that date. It is intended that the reorganization described
in this Agreement shall be a reorganization within the meaning of Section 368
of the Internal Revenue Code of 1986, as amended and in effect from time to
time (the "Code").
(b) Upon consummation of the transactions described in paragraph (a) of this
Plan of Reorganization, the Acquired Fund shall distribute the Merger Shares in
complete liquidation to its shareholders of record as of the Exchange Date,
each shareholder being entitled to receive that proportion of Merger Shares of
each class (consisting in the case of each shareholder of Merger Shares of the
same designated class as the shares of the Acquired Fund which that shareholder
holds) which the number of shares of that class of the Acquired Fund held by
such shareholder bears to the total number of shares of that class of the
Acquired Fund outstanding on such date. Certificates representing the Merger
Shares will not be issued. All issued and outstanding shares of the Acquired
Fund will simultaneously be cancelled on the books of the Acquired Fund.
(c) As soon as practicable following the liquidation of the Acquired Fund as
aforesaid, the Acquired Fund shall be dissolved pursuant to the provisions of
the Agreement and Declaration of Trust of the Trust, as amended, and applicable
law, and its legal existence terminated. Any reporting responsibility of the
Acquired Fund is and shall remain the responsibility of the Acquired Fund up to
and including the Exchange Date and, if applicable, such later date on which
the Acquired Fund is dissolved.
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AGREEMENT
The Xxxxxx Trust, on behalf of the Acquiring Fund, and the Trust, on behalf
of the Acquired Fund, agree as follows:
1. Representations, Warranties and Agreements of the Acquiring Fund. The Xxxxxx
Trust, and not the individual Trustees and officers thereof, on behalf of
the Acquiring Fund, represents and warrants to and agrees with the Acquired
Fund that:
a. The Acquiring Fund is a series of shares of the Xxxxxx Trust, a
Massachusetts business trust duly established and validly existing under
the laws of the Commonwealth of Massachusetts, and has power to own all
of its properties and assets and to carry out its obligations under this
Agreement. The Xxxxxx Trust is qualified as a foreign association in
every jurisdiction where required, except to the extent that failure to
so qualify would not have a material adverse effect on the Xxxxxx Trust.
Each of the Xxxxxx Trust and the Acquiring Fund has all necessary
federal, state and local authorizations to carry on its business as now
being conducted and to carry out this Agreement.
b. The Xxxxxx Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment
company, and such registration has not been revoked or rescinded and is
in full force and effect.
c. A statement of assets and liabilities, statement of operations,
statement of changes in net assets and a portfolio of investments
(indicating their market values) of the Acquiring Fund as of and for the
period ended March 31, 2007 have been furnished to the Acquired Fund
prior to the Exchange Date. Such statement of assets and liabilities and
schedule fairly present the financial position of the Acquiring Fund as
of such date and said statements of operations and changes in net assets
fairly reflect the results of its operations and changes in net assets
for the periods covered thereby in conformity with generally accepted
accounting principles.
d. Since March 31, 2007, there has not been any material adverse change in
the Acquiring Fund's financial condition, assets, liabilities or
business (other than changes occurring in the ordinary course of
business), or any incurrence by the Acquiring Fund of indebtedness. For
the purposes of this subparagraph (d), distributions of net investment
income and net realized capital gains, changes in portfolio securities,
changes in the market value of portfolio securities or net redemptions
shall be deemed to be in the ordinary course of business.
e. The Xxxxxx Trust is not in violation in any material respect of any
provisions of its First Amended and Restated Agreement and Declaration
of Trust or By-Laws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Xxxxxx Trust is a
party or by which the Acquiring Fund is bound, and the execution,
delivery and performance of this Agreement will not result in any such
violation.
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f. The prospectuses and statement of additional information of the
Acquiring Fund, each dated June 1, 2007, and each as from time to time
amended or supplemented (collectively, the "Acquiring Fund Prospectus"),
previously furnished to the Acquired Fund, (i) conform in all material
respects to the applicable requirements of the Securities Act of 1933,
as amended (the "1933 Act"), and (ii) did not as of such date and do not
contain, with respect to the Xxxxxx Trust or the Acquiring Fund, any
untrue statements of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
g. There are no material legal, administrative or other proceedings pending
or, to the knowledge of the Xxxxxx Trust or the Acquiring Fund,
threatened against the Xxxxxx Trust or the Acquiring Fund, which assert
liability on the part of the Xxxxxx Trust or the Acquiring Fund. Neither
the Xxxxxx Trust nor the Acquiring Fund knows of any 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.
h. The Acquiring Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that will be shown as
belonging to it on its statement of assets and liabilities as of
March 31, 2007, and those incurred in the ordinary course of business as
an investment company since such date. Prior to the Exchange Date, the
Acquiring Fund will quantify and reflect on its balance sheet all of its
material known liabilities and will advise the Acquired Fund of all
material liabilities, contingent or otherwise, incurred by it subsequent
to March 31, 2007, whether or not incurred in the ordinary course of
business.
i. As of the Exchange Date, the Acquiring Fund will have filed all federal
and other tax returns and reports (giving effect to extensions) which,
to the knowledge of the officers of the Xxxxxx Trust, are required to be
filed by the Acquiring Fund and has paid or will pay all federal and
other taxes shown to be due on said returns or on any assessments
received by the Acquiring Fund. All tax liabilities of the Acquiring
Fund have been adequately provided for on its books, and no tax
deficiency or liability of the Acquiring Fund has been asserted, and no
question with respect thereto has been raised or is under audit, by the
Internal Revenue Service or by any state, local or other tax authority
for taxes in excess of those already paid, except as previously
disclosed to the Acquired Fund.
j. 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 by this Agreement, except such as
may be required under the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), the 1940 Act and state securities or blue
sky laws (which term as used herein shall include the laws of the
District of Columbia and of Puerto Rico).
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k. There are no material contracts outstanding to which the Acquiring Fund
is a party, other than as are or will be disclosed in the Registration
Statement or the Acquired Fund Proxy Statement (each as defined in
Section l(r) herein) or the Acquiring Fund Prospectus.
l. To the best of its knowledge, all of the issued and outstanding shares
of beneficial interest of the Acquiring Fund have been offered for sale
and sold in conformity with all applicable federal and state securities
laws (including any applicable exemptions therefrom), except as
previously disclosed to the Acquired Fund, or the Acquiring Fund or its
investment adviser has taken any action necessary to remedy any prior
failure to have offered for sale and sold such shares in conformity with
such laws.
m. The Acquiring Fund qualifies and will at all times through the Exchange
Date qualify for taxation as a "regulated investment company" under
Subchapter M of the Code.
n. The issuance of the Merger Shares pursuant to this Agreement will be in
compliance with all applicable federal and state securities laws.
o. The Merger Shares to be issued to the Acquired Fund have been duly
authorized and, when issued and delivered pursuant to this Agreement,
will be legally and validly issued Class A, Class B, Class C and Class Y
shares of beneficial interest in the Acquiring Fund and will be fully
paid and, except as set forth in the Registration Statement,
nonassessable by the Acquiring Fund, and no shareholder of the Acquiring
Fund will have any preemptive right of subscription or purchase in
respect thereof.
p. All issued and outstanding shares of the Acquiring Fund are, and at the
Exchange Date will be, duly and validly issued and outstanding, fully
paid and, except as set forth in the Registration Statement,
nonassessable by the Acquiring Fund. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any of the Acquiring Fund shares, nor is there outstanding any
security convertible into any of the Acquiring Fund shares, except that
Class B shares of the Acquiring Fund are convertible into Class A shares
of the Acquiring Fund in the manner and on the terms described in the
Acquiring Fund Prospectus and the Registration Statement.
q. The Acquiring Fund's investment operations from inception to the date
hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the
Acquiring Fund Prospectus and the Registration Statement.
r. The registration statement on Form N-14 (the "Registration Statement")
filed with the Securities and Exchange Commission (the "Commission") by
the Xxxxxx Trust on behalf of the Acquiring Fund and relating to the
Merger Shares issuable hereunder, and the proxy statement of the
Acquired Fund relating to the meeting of the Acquired Fund's
shareholders referred to in Section 7 herein (together with the
documents incorporated therein by reference, the "Acquired Fund Proxy
Statement"), on the effective date of the Registration Statement
(i) complied in all material respects with the provisions of the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
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and at the time of the shareholders' meeting referred to in Section 7
and on the Exchange Date, the prospectus which is contained in the
Registration Statement, as amended or supplemented by any amendments or
supplements filed with the Commission by the Xxxxxx Trust, and the
Acquired Fund Proxy Statement did not and will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that none of the representations and
warranties in this subparagraph (r) shall apply to statements in or
omissions from the Registration Statement or the Acquired Fund Proxy
Statement made in reliance upon and in conformity with information
furnished by the Acquired Fund for use in the Registration Statement or
the Acquired Fund Proxy Statement.
2. Representations, Warranties and Agreements of the Acquired Fund. The Trust,
and not the individual Trustees and officers thereof, on behalf of the
Acquired Fund, represents and warrants to and agrees with the Acquiring Fund
that:
a. The Acquired Fund is a series of shares of the Trust, a Massachusetts
business trust duly established and validly existing under the laws of
the Commonwealth of Massachusetts, and has power to own all of its
properties and assets and to carry out this Agreement. The Trust is
qualified as a foreign association in every jurisdiction where required,
except to the extent that failure to so qualify would not have a
material adverse effect on the Trust. Each of the Trust and the Acquired
Fund has all necessary federal, state and local authorizations to own
all of its properties and assets and to carry on its business as now
being conducted and to carry out this Agreement.
b. The Trust is registered under the 1940 Act as an open-end management
investment company, and such registration has not been revoked or
rescinded and is in full force and effect.
c. A statement of assets and liabilities, statement of operations,
statement of changes in net assets and a schedule of investments
(indicating their market values) of the Acquired Fund as of and for the
period ended June 30, 2007 have been furnished to the Acquiring Fund
prior to the Exchange Date. Such statement of assets and liabilities and
schedule fairly present the financial position of the Acquired Fund as
of such date and said statements of operations and changes in net assets
fairly reflect the results of its operations and changes in net assets
for the periods covered thereby in conformity with generally accepted
accounting principles.
d. Since June 30, 2007, there has not been any material adverse change 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, except as disclosed
in writing to the Acquiring Fund. For the purposes of this subsection
(d) and of Section 9(a) of this Agreement, distributions of net
investment income and net realized capital gains, changes in portfolio
securities, changes in the market value of portfolio securities or net
redemptions shall be deemed to be in the ordinary course of business.
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e. The Trust is not in violation in any material respect of any provision
of its Third Amended and Restated Agreement and Declaration of Trust or
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which the Trust is a party or by which the Acquired
Fund is bound, and the execution, delivery and performance of this
Agreement will not result in any such violation.
f. The prospectuses and the statement of additional information of the
Acquired Fund, each dated May 1, 2007, and each as from time to time
amended or supplemented (collectively, the "Acquired Fund Prospectus"),
previously furnished to the Acquiring Fund (i) conform in all material
respects to the applicable requirements of the 1933 Act and (ii) did not
contain as of such date and do not contain, with respect to the Trust
and the Acquired Fund, any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
g. The Acquired Fund's investment operations from inception to the date
hereof have been in compliance in all material respects with the
investment policies and investment restrictions set forth in the
Acquired Fund Prospectus.
h. At the Exchange Date, the Trust, on behalf of the Acquired Fund, will
have good and marketable title to its assets to be transferred to the
Acquiring Fund pursuant to this Agreement and will have full right,
power and authority to sell, assign, transfer and deliver the
Investments (as defined below) and any other assets and liabilities of
the Acquired Fund to be transferred to the Acquiring Fund pursuant to
this Agreement. At the Exchange Date, subject only to the delivery of
the Investments and any such other assets and liabilities and payment
therefor as contemplated by this Agreement, the Acquiring Fund will
acquire good and marketable title thereto and will acquire the
Investments and any such other assets and liabilities subject to no
encumbrances, liens or security interests whatsoever and without any
restrictions upon the transfer thereof, except as previously disclosed
in writing to the Acquiring Fund.
i. There are no material legal, administrative or other proceedings pending
or, to the knowledge of the Trust or the Acquired Fund, threatened
against the Trust or the Acquired Fund, which assert liability on the
part of the Trust or the Acquired Fund. The Acquired 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.
j. There are no material contracts outstanding to which the Acquired Fund
is a party, other than as are or will be disclosed in Acquired Fund
Prospectus, the registration statement on Form N-1A of the Acquired Fund
(the "Acquired Fund Registration Statement") or the Acquired Fund Proxy
Statement.
k. The Acquired Fund has no known liabilities of a material nature,
contingent or otherwise, other than those that are shown on the Acquired
Fund's statement of assets and liabilities as of June 30, 2007, referred
to above and those incurred in the ordinary course of its business as an
investment company since such date. Prior to the Exchange Date, the
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Acquired Fund will quantify and reflect on its balance sheet all of its
material known liabilities and will advise the Acquiring Fund of all
material liabilities, contingent or otherwise, incurred by it subsequent
to June 30, 2007, whether or not incurred in the ordinary course of
business.
l. As of the Exchange Date, the Acquired Fund will have filed all required
federal and other tax returns and reports (giving effect to extensions)
which, to the knowledge of the Trust's officers, are required to have
been filed by the Acquired Fund by such date and has paid or will pay
all federal and other taxes shown to be due on said returns or on any
assessments received by the Acquired Fund. All tax liabilities of the
Acquired Fund have been adequately provided for on its books, and no tax
deficiency or liability of the Acquired Fund has been asserted, and no
question with respect thereto has been raised or is under audit, by the
Internal Revenue Service or by any state, local or other tax authority
for taxes in excess of those already paid.
m. The Trust has and, at the Exchange Date, the Trust, on behalf of the
Acquired Fund, will have, full right, power and authority to sell,
assign, transfer and deliver the Investments (as defined below) and any
other assets and liabilities of the Acquired Fund to be transferred to
the Acquiring Fund pursuant to this Agreement. At the Exchange Date,
subject only to the delivery of the Investments and any such other
assets and liabilities as contemplated by this Agreement, the Acquiring
Fund will acquire the Investments and any such other assets and
liabilities subject to no encumbrances, liens or security interests
whatsoever and without any restrictions upon the transfer thereof. As
used in this Agreement, the term "Investments" shall mean the Acquired
Fund's investments shown on the schedule of its investments as of
June 30, 2007, referred to in Section 2(c) hereof, as modified by such
changes in the portfolio as the Acquired Fund shall make, and changes
resulting from stock dividends, stock split-ups, mergers and similar
corporate actions through the Exchange Date.
n. No registration under the 1933 Act of any of the Investments would be
required if they were, as of the time of such transfer, the subject of a
public distribution by either of the Acquiring Fund or the Acquired
Fund, except as previously disclosed to the Acquiring Fund by the
Acquired Fund.
o. 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 by this Agreement, except such as
may be required under the 1933 Act, 1934 Act, the 1940 Act or state
securities or blue sky laws.
p. The Acquired Fund qualifies and will at all times through the Exchange
Date qualify for taxation as a "regulated investment company" under
Subchapter M of the Code.
q. At the Exchange Date, the Acquired Fund will have sold such of its
assets, if any, as are necessary to assure that, after giving effect to
the acquisition of the assets of the Acquired Fund pursuant to this
Agreement, the Acquiring Fund will remain a "diversified company" within
the meaning of Section 5(b)(1) of the 1940 Act and in compliance with
such other mandatory investment restrictions as are set forth in the
Acquired Fund Prospectus, as amended through the Exchange Date.
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r. To the best of its knowledge, all of the issued and outstanding shares
of beneficial interest of the Acquired Fund have been offered for sale
and sold in conformity with all applicable federal and state securities
laws (including any applicable exemptions therefrom), except as
previously disclosed to the Acquiring Fund, or the Acquired Fund or its
investment adviser has taken any action necessary to remedy any prior
failure to have offered for sale and sold such shares in conformity with
such laws.
s. All issued and outstanding shares of the Acquired Fund are, and at the
Exchange Date will be, duly and validly issued and outstanding, fully
paid and, except as set forth in the registration statement of the
Trust, non-assessable by the Acquired Fund. The Acquired Fund does not
have outstanding any options, warrants or other rights to subscribe for
or purchase any of the Acquired Fund shares, nor is there outstanding
any security convertible into any of the Acquired Fund shares except
that Class B shares of the Acquired Fund are convertible into Class A
shares of the Acquired Fund in the manner and on the terms described in
the Acquired Fund Prospectus.
t. The Acquired Fund Proxy Statement, on the date of its filing
(i) complied in all material respects with the provisions of the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder and (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and at the time
of the shareholders' meeting referred to in Section 7 and on the
Exchange Date, the Acquired Fund Proxy Statement did not and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to
statements in or omissions from the Acquired Fund Proxy Statement made
in reliance upon and in conformity with information furnished by the
Acquiring Fund for use in the Acquired Fund Proxy Statement.
u. The Trust has no material contracts or other commitments (other than
this Agreement and such other contracts as may be entered into in the
ordinary course of its business) which if terminated may result in
material liability to the Acquired Fund (or to the Acquiring Fund as a
result of the transactions contemplated by this Agreement) or under
which (whether or not terminated) any material payments for periods
subsequent to the Exchange Date will be due from the Acquired Fund (or
from the Acquiring Fund as a result of the transactions contemplated by
this Agreement).
v. The information provided by the Acquired Fund for use in the
Registration Statement and Proxy Statement was accurate and complete in
all material respects when supplied and as of July 3, 2007 was accurate
and complete in all material respects and complied with federal
securities and other laws and regulations applicable thereto in all
material respects.
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3. Reorganization.
a. Subject to the requisite approval of the shareholders of the Acquired
Fund and to the other terms and conditions contained herein (including
the Acquired Fund's obligation (if any) to distribute to its
shareholders all of its investment company taxable income and net
capital gain as described in Section 8(j) hereof), the Acquired Fund
agrees to sell, assign, convey, transfer and deliver to the Acquiring
Fund, and the Acquiring Fund agrees to acquire from the Acquired Fund,
on the Exchange Date all of the Investments and all of the cash and
other properties and assets of the Acquired Fund, whether accrued or
contingent (including cash received by the Acquired Fund upon the
liquidation of the Acquired Fund of any Acquired Fund investments
designated by the Acquiring Fund as being unsuitable for it to acquire
pursuant to the investment restrictions of the Acquiring Fund set forth
in the Acquiring Fund Prospectus and the Registration Statement), in
exchange for that number of shares of beneficial interest of the
Acquiring Fund provided for in Section 4 and the assumption by the
Acquiring Fund of all of the liabilities of the Acquired Fund, whether
accrued or contingent, existing at the Valuation Time except for the
Acquired Fund's liabilities, if any, arising in connection with this
Agreement. The Acquired Fund will, as soon as practicable after the
Exchange Date, distribute in complete liquidation all of the Merger
Shares received by it to the shareholders of the Acquired Fund in
exchange for their shares of the Acquired Fund.
b. The Acquired Fund will pay or cause to be paid to the Acquiring Fund any
interest, cash or such dividends, rights and other payments received by
it on or after the Exchange Date with respect to the Investments and
other properties and assets of the Acquired Fund, whether accrued or
contingent, received by it on or after the Exchange Date. Any such
distribution shall be deemed included in the assets transferred to the
Acquiring Fund at the Exchange Date and shall not be separately valued
unless the securities in respect of which such distribution is made
shall have gone "ex" such distribution prior to the Valuation Time, in
which case any such distribution which remains unpaid at the Exchange
Date shall be included in the determination of the value of the assets
of the Acquired Fund acquired by the Acquiring Fund.
c. The Valuation Time shall be 4:00 p.m. Eastern time on the Exchange Date
or such other time as may be mutually agreed upon in writing by the
parties hereto (the "Valuation Time").
4. Exchange Date; Valuation Time. On the Exchange Date, the Acquiring Fund will
deliver to the Acquired Fund a number of full and fractional Merger Shares
having an aggregate net asset value equal, in the case of each such class of
Merger Shares, to the value of the assets of the Acquired Fund attributable
to the same class of shares of the Acquired Fund on such date less the value
of the liabilities attributable to the same class of shares of the Acquired
Fund assumed by the Acquiring Fund on that date, determined as hereinafter
provided in this Section 4.
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a. The net asset value of the Merger Shares to be delivered to the Acquired
Fund, the value of the assets attributable to the shares of the Acquired
Fund, and the value of the liabilities of the Acquired Fund to be
assumed by the Acquiring Fund, shall in each case be determined as of
the Valuation Time.
b. The net asset value of the Merger Shares shall be computed in the manner
set forth in the Acquiring Fund Prospectus. The value of the assets and
liabilities of the Acquired Fund shall be determined by the Acquiring
Fund, in cooperation with the Acquired Fund, pursuant to procedures
which the Acquiring Fund would use in determining the fair market value
of the Acquiring Fund's assets and liabilities.
c. No adjustment shall be made in the net asset value of either the
Acquired Fund or the Acquiring Fund to take into account differences in
realized and unrealized gains and losses.
d. The Acquiring Fund shall issue the Merger Shares to the Acquired Fund.
The Acquired Fund shall promptly distribute the Merger Shares to the
shareholders of the Acquired Fund by establishing open accounts for each
Acquired Fund shareholder on the transfer records of the Acquiring Fund.
Certificates representing Merger Shares will not be issued to Acquired
Fund shareholders.
e. The Acquiring Fund shall assume all liabilities of the Acquired Fund,
whether accrued or contingent, in connection with the acquisition of
assets and subsequent liquidation and dissolution of the Acquired Fund
or otherwise, except for the Acquired Fund's liabilities, if any,
arising pursuant to this Agreement.
5. Expenses, Fees, etc.
a. Except as otherwise provided in this Section 5, Natixis Asset Management
Advisors, L.P., by countersigning this Agreement, agrees that it will
bear any and all costs and expenses of the transaction incurred by the
Acquiring Fund and the Acquired Fund; provided, however, that the
Acquiring Fund and the Acquired Fund will each pay any brokerage
commissions, dealer xxxx-ups and similar expenses ("Portfolio Expenses")
that it may incur in connection with the purchases or sale of portfolio
securities; and provided further that, the Acquiring Fund will pay all
governmental fees required in connection with the registration or
qualification of the Merger Shares under applicable state and federal
laws.
b. In the event the transactions contemplated by this Agreement are not
consummated, then Natixis Asset Management Advisors, L.P. agrees that it
shall bear all of the costs and expenses (other than Portfolio Expenses)
incurred by both the Acquiring Fund and the Acquired Fund in connection
with such transactions.
c. Notwithstanding any other provisions of this Agreement, if for any
reason the transactions contemplated by this Agreement are not
consummated, neither the Acquiring Fund nor the Acquired Fund shall be
liable to the other for any damages resulting therefrom, including,
without limitation, consequential damages, except as specifically set
forth above.
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d. Notwithstanding any of the foregoing, costs and expenses will in any
event be paid by the party directly incurring them if and to the extent
that the payment by another party of such costs and expenses would
result in the disqualification of such party as a "regulated investment
company" within the meaning of Subchapter M of the Code.
6. Exchange Date. Delivery of the assets of the Acquired Fund to be
transferred, assumption of the liabilities of the Acquired Fund to be
assumed, and delivery of the Merger Shares to be issued shall be made at the
offices of Natixis Asset Management Advisors, L.P., 000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, as of the close of business on October 26, 2007, or at
such other time and date agreed to by the Acquiring Fund and the Acquired
Fund, the date and time upon which such delivery is to take place being
referred to herein as the "Exchange Date."
7. Meeting of Shareholders; Dissolution.
a. The Trust, on behalf of the Acquired Fund, shall call a meeting of the
Acquired Fund's shareholders to take place after the effective date of
the Registration Statement for the purpose of considering the approval
of this Agreement.
b. The Acquired Fund agrees that the liquidation and dissolution of the
Acquired Fund will be effected in the manner provided in the Third
Amended and Restated Agreement and Declaration of Trust of the Trust in
accordance with applicable law and that, after the Exchange Date, the
Acquired Fund shall not conduct any business except in connection with
its liquidation and dissolution.
c. The Acquiring Fund shall, after the preparation and delivery to the
Acquiring Fund by the Acquired Fund of a preliminary version of the
Acquired Fund Proxy Statement information, which shall be satisfactory
to the Acquiring Fund and to Ropes & Xxxx LLP for inclusion in the
Registration Statement, file the Registration Statement with the
Commission. Each of the Acquired Fund and the Acquiring Fund shall
cooperate with the other, and each will furnish to the other the
information relating to itself required by the 1933 Act, the 1934 Act
and the 1940 Act and the rules and regulations thereunder to be set
forth in the Registration Statement.
8. Conditions to the Acquiring Fund's Obligations. The obligations of the
Acquiring Fund hereunder shall be subject to the following conditions:
a. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement of the Acquired Fund's assets and liabilities, with values
determined as provided in Section 4 of this Agreement, together with a
list of Investments with their respective tax costs, all as of the
Valuation Time, certified on the Acquired Fund's behalf by the President
(or any Vice President) and Treasurer (or any Assistant Treasurer) of
the Trust, and a certificate of both such officers, dated the Exchange
Date, that there has been no material adverse change in the financial
position of the Acquired Fund since June 30, 2007, other than changes in
the Investments and other assets and properties since that date or
changes in the market value of the Investments and other assets of the
Acquired Fund, or changes due to dividends paid, and a certificate of
both such officers representing and warranting
11
that there are no known liabilities, contingent or otherwise, of the
Acquired Fund required to be reflected on a balance sheet (including
notes thereto) in accordance with generally accepted accounting
principles as of June 30, 2007 and in the Acquired Fund's statement of
assets and liabilities as of the Valuation Time.
b. That the Acquired Fund shall have furnished to the Acquiring Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of the Trust
certifying that as of the Exchange Date all representations and
warranties of the Acquired Fund made in this Agreement are true and
correct in all material respects as if made at and as of such date and
the Acquired Fund has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
such date.
c. That the Acquired Fund shall have delivered to the Acquiring Fund a
letter from the independent registered public accounting firm of the
Trust, dated the Exchange Date, stating that such firm has employed
certain procedures whereby it has obtained schedules of the tax
provisions and qualifying tests for regulated investment companies and
that, in the course of such procedures, nothing came to their attention
which caused them to believe that the Acquired Fund (i) would not
qualify as a regulated investment company for federal, state, local or
other income tax purposes or (ii) would owe any federal, state or local
income tax or excise tax, in each case for both the taxable year ended
December 31, 2006, and for any taxable year or period beginning on
January 1, 2007 and ending on or prior to the Exchange Date (the latter
period being based on unaudited data).
d. That there shall not be any material litigation pending with respect to
the matters contemplated by this Agreement.
e. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP, counsel to the Acquired Fund, dated the Exchange Date, to the
effect that (i) the Trust is a Massachusetts business trust duly formed
and validly existing under the laws of the Commonwealth of
Massachusetts, and the Acquired Fund is a separate series thereof duly
constituted in accordance with the applicable provisions of the 1940 Act
and the Third Amended and Restated Agreement and Declaration of Trust
and By-Laws of the Trust; (ii) this Agreement has been duly authorized,
executed and delivered by the Trust on behalf of the Acquired Fund and,
assuming that the Registration Statement, the Acquired Fund Prospectus
and the Acquired Fund Proxy Statement comply with the 1933 Act, the 1934
Act and the 1940 Act and assuming due authorization, execution and
delivery of this Agreement by the Xxxxxx Trust on behalf of the
Acquiring Fund, is a valid and binding obligation of the Trust and the
Acquired Fund enforceable against the Trust and the Acquired Fund in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and other equitable
principles; (iii) the Trust, on behalf of the Acquired Fund, has power
to sell, assign, convey, transfer and deliver the assets contemplated
hereby and, upon consummation of the transactions contemplated hereby in
accordance with the terms of this Agreement, the Acquired Fund will have
duly sold, assigned, conveyed, transferred and delivered such assets to
the Acquiring Fund; (iv) the execution and delivery of this Agreement
did not, and the consummation of the transactions
12
contemplated hereby will not, violate the Third Amended and Restated
Agreement and Declaration of Trust or By-Laws of the Trust, or any
provision of any agreement known to such counsel to which the Trust or
the Acquired Fund is a party or by which it is bound or, to the
knowledge of such counsel, result in the acceleration of any penalty
under any agreement, judgment or decree to which the Trust or the
Acquired Fund is party or by which either of them is bound, it being
understood that with respect to investment restrictions contained in the
Third Amended and Restated Agreement and Declaration of Trust, By-Laws
or then-current prospectuses or statement of additional information of
the Trust, such counsel may rely upon a certificate of an officer of the
Trust; (v) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by the Trust on behalf of the Acquired
Fund of the transactions contemplated hereby, 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; (vi) the
Trust is registered with the Commission as an investment company under
the 1940 Act; and (vii) 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 properties or assets that challenges
or seeks to prohibit, restrain or enjoin the transactions contemplated
by this Agreement. Such opinion may state that such counsel does not
express any opinion or belief as to the financial statements or other
financial data, or as to the information relating to the Acquired Fund,
the Acquired Fund Proxy Statement, or the Registration Statement, and
that such opinion is solely for the benefit of the Acquiring Fund, its
Trustees, and its officers.
f. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP, dated the Exchange Date (which opinion would be based upon
certain factual representations and subject to certain qualifications),
to the effect that, on the basis of the existing provisions of the Code,
current administrative rules and court decisions, for federal income tax
purposes: (i) the transactions contemplated by this Agreement will
constitute a reorganization within the meaning of Section 368(a) of the
Code, and the Acquiring Fund and the Acquired Fund will each be "a party
to the reorganization" within the meaning of Section 368(b) of the Code;
(ii) under Section 1032 of the Code, no gain or loss will be recognized
by the Acquiring Fund upon receipt of the Investments transferred to the
Acquiring Fund pursuant to this Agreement in exchange for the Merger
Shares and the assumption by the Acquiring Fund of the liabilities of
the Acquired Fund as contemplated in Section 3 hereof; (iii) under
Section 362(b) of the Code, the basis to the Acquiring Fund of the
Investments will be the same as the basis of the Investments in the
hands of the Acquired Fund immediately prior to such exchange;
(iv) under Section 1223(2) of the Code, the Acquiring Fund's holding
periods with respect to the Investments will include the respective
periods for which the Investments were held by the Acquired Fund; and
(v) the Acquiring Fund will succeed to and take into account the items
of the Acquired Fund described in Section 381(c) of the Code, subject to
the conditions and limitations specified in Sections 381, 382, 383 and
384 of the Code and the regulations thereunder.
13
g. That the assets of the Acquired Fund to be acquired by the Acquiring
Fund will include no assets which the Acquiring Fund, by reason of
charter limitations or of investment restrictions disclosed in the
Acquiring Fund Prospectus or the Registration Statement as in effect on
the Exchange Date, may not properly acquire.
h. That the Trust shall have received from the Commission and any relevant
state securities administrator such order or orders as are reasonably
necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act
and any applicable state securities or blue sky laws in connection with
the transactions contemplated hereby, and that all such orders shall be
in full force and effect.
i. That all actions taken by the Trust on behalf of the Acquired Fund in
connection with the transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in form and substance
to the Acquiring Fund and Ropes & Xxxx LLP.
j. That, prior to the Exchange Date, the Acquired Fund shall have declared
a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to the shareholders of
the Acquired Fund (i) all of the excess of (x) the Acquired Fund's
investment income excludable from gross income under Section 103 of the
Code over (y) the Acquired Fund's deductions disallowed under Sections
265 and 171 of the Code, (ii) all of the Acquired Fund's investment
company taxable income as defined in Section 852 of the Code, computed
in each case without regard to any deduction for dividends paid, and
(iii) all of the Acquired Fund's net capital gain realized (after
reduction for any capital loss carryover), in each case for both the
taxable year ended on December 31, 2006, and for any taxable year or
period beginning on January 1, 2007 and ending on or prior to the
Exchange Date.
k. That 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 tax cost
to the Acquired Fund of the securities delivered to the Acquiring Fund
pursuant to this Agreement, together with any such other evidence as to
such tax cost as the Acquiring Fund may reasonably request.
l. That the Acquired Fund's custodian shall have delivered to the Acquiring
Fund a certificate identifying all of the assets of the Acquired Fund
held or maintained by such custodian as of the Valuation Time.
m. That the Acquired Fund's transfer agent shall have provided to the
Acquiring Fund (i) the originals or true copies of all of the records of
the Acquired Fund in the possession of such transfer agent as of the
Exchange Date, (ii) a certificate setting forth the number of shares of
the Acquired Fund outstanding as of the Valuation Time, and (iii) the
name and address of each holder of record of any shares and the number
of shares held of record by each such shareholder.
14
n. That all of the issued and outstanding shares of beneficial interest of
the Acquired Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue sky laws
(including any applicable exemptions therefrom) and, to the extent that
any audit of the records of the Acquired Fund or its transfer agent by
the Acquiring Fund or its agents shall have revealed otherwise, either
(i) the Acquired Fund shall have taken all actions that in the opinion
of the Acquiring Fund or Ropes & Xxxx LLP are necessary to remedy any
prior failure on the part of the Acquired Fund to have offered for sale
and sold such shares in conformity with such laws or (ii) the Acquired
Fund shall have furnished (or caused to be furnished) surety, or
deposited (or caused to be deposited) assets in escrow, for the benefit
of the Acquiring Fund in amounts sufficient and upon terms satisfactory,
in the opinion of the Acquiring Fund or Ropes & Xxxx LLP, to indemnify
the Acquiring Fund against any expense, loss, claim, damage or liability
whatsoever that may be asserted or threatened by reason of such failure
on the part of the Acquired Fund to have offered and sold such shares in
conformity with such laws.
o. That the Acquiring Fund shall have received from the independent
registered public accounting firm of the Trust a letter addressed to the
Acquiring Fund, dated as of the Exchange Date, satisfactory in form and
substance to the Acquiring Fund with respect to the performance of
limited procedures agreed upon by the Acquiring Fund and described in
such letter (but not an examination in accordance with generally
accepted auditing standards), as of the Valuation Time.
p. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of
the holders of the outstanding shares of beneficial interest of the
Acquired Fund entitled to vote.
q. That the Acquiring Fund shall have received an opinion of Ropes &
Xxxx LLP with respect to the matters specified in Section 9(f) of this
Agreement, and such other matters as the Acquiring Fund may reasonably
deem necessary or desirable.
r. That the Registration Statement shall have become effective under the
1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the Xxxxxx Trust or the
Acquiring Fund, threatened by the Commission.
9. Conditions to the Acquired Fund's Obligations. The obligations of the
Acquired Fund hereunder shall be subject to the following conditions:
a. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement of the Acquiring Fund's net assets, together with a list of
portfolio holdings with values determined as provided in Section 4, all
as of the Valuation Time, certified on the Acquiring Fund's behalf by
the President (or any Vice President) and Treasurer (or any Assistant
Treasurer) of the Xxxxxx Trust, and a certificate of both such officers,
dated the Exchange Date, to the effect that as of the Valuation Time and
as of the Exchange Date there has been no material adverse change in the
financial position of the Acquiring Fund since March 31, 2007, other
than changes occurring in the ordinary course of business.
15
b. That the Xxxxxx Trust, on behalf of the Acquiring Fund, shall have
executed and delivered to the Acquired Fund an Assumption of Liabilities
dated as of the Exchange Date, pursuant to which the Acquiring Fund
will, in connection with the transactions contemplated by this
Agreement, assume all of the liabilities of the Acquired Fund existing
as of the Valuation Time, other than liabilities arising pursuant to
this Agreement.
c. That the Acquiring Fund shall have furnished to the Acquired Fund a
statement, dated the Exchange Date, signed by the President (or any Vice
President) and Treasurer (or any Assistant Treasurer) of the Xxxxxx
Trust certifying that as of the Exchange Date all representations and
warranties of the Acquiring Fund made in this Agreement are true and
correct in all material respects as if made at and as of such date, and
that the Acquiring Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
at or prior to such date.
d. That there shall not be any material litigation pending or threatened
with respect to the matters contemplated by this Agreement.
e. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx LLP, counsel to the Acquiring Fund, dated the Exchange Date, to the
effect that (i) the Xxxxxx Trust is a Massachusetts business trust duly
formed and validly existing under the laws of the Commonwealth of
Massachusetts, and the Acquiring Fund is a separate series thereof duly
constituted in accordance with the applicable provisions of the 1940 Act
and the First Amended and Restated Agreement and Declaration of Trust
and By-Laws of the Xxxxxx Trust; (ii) the Merger Shares to be delivered
to the Acquired Fund as provided for by this Agreement are duly
authorized and upon such delivery will be validly issued and will be
fully paid and, except as set forth in the Registration Statement,
nonassessable by Xxxxxx Trust and the Acquiring Fund and no shareholder
of the Acquiring Fund has any preemptive right to subscription or
purchase in respect thereof; (iii) this Agreement has been duly
authorized, executed and delivered by the Xxxxxx Trust on behalf of the
Acquiring Fund and, assuming that the Acquiring Fund Prospectus, the
Registration Statement and the Acquired Fund Proxy Statement comply with
the 1933 Act, the 1934 Act and the 1940 Act and assuming due
authorization, execution and delivery of this Agreement by the Trust on
behalf of the Acquired Fund, is a valid and binding obligation of the
Xxxxxx Trust and the Acquiring Fund enforceable against the Xxxxxx Trust
and the Acquiring Fund in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally
and other equitable principles; (iv) the execution and delivery of this
Agreement did not, and the consummation of the transactions contemplated
hereby will not, violate the First Amended and Restated Agreement and
Declaration of Trust or By-Laws of the Xxxxxx Trust, or any provision of
any agreement known to such counsel to which the Xxxxxx Trust or the
Acquiring Fund 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, judgment or decree to
which the Xxxxxx Trust or the Acquiring Fund is party or by which either
of them is bound, it being understood that with respect to investment
restrictions as contained in the First Amended and Restated Agreement
and Declaration of Trust, By-Laws or then-current prospectuses
16
or statement of additional information of the Xxxxxx Trust, such counsel
may rely upon a certificate of an officer of the Xxxxxx Trust; (v) to
the knowledge of such counsel, no consent, approval, authorization or
order of any court or governmental authority is required for the
consummation by the Xxxxxx Trust on behalf of 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 under state securities or "Blue Sky" laws; (vi) the Xxxxxx
Trust is registered with the Commission as an investment company under
the 1940 Act; and (vii) 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 Xxxxxx
Trust or the Acquiring Fund or any of their properties or assets that
challenges or seeks to prohibit, restrain or enjoin the transactions
contemplated by this Agreement. Such opinion may state that such counsel
does not express any opinion or belief as to the financial statements or
other financial data, or as to the information relating to the Acquired
Fund, contained in the Acquired Fund Proxy Statement or the Registration
Statement, and that such opinion is solely for the benefit of the
Acquired Fund, its Trustees and its officers.
f. That the Acquired Fund shall have received an opinion of Ropes &
Xxxx LLP, dated the Exchange Date (which opinion would be based upon
certain factual representations and subject to certain qualifications),
in form satisfactory to the Acquired Fund to the effect that, on the
basis of the existing provisions of the Code, current administrative
rules and court decisions, for federal income tax purposes: (i) the
transactions contemplated by this Agreement will constitute a
reorganization within the meaning of Section 368(a) of the Code, and the
Acquiring Fund and the Acquired Fund will each be "a party to the
reorganization" within the meaning of Section 368(b) of the Code;
(ii) under Section 361 of the Code, no gain or loss will be recognized
by the Acquired Fund (x) upon the transfer of its assets to the
Acquiring Fund in exchange for the Merger Shares and the assumption by
the Acquiring Fund of the liabilities of the Acquired Fund as
contemplated in Section 3 hereof or (y) upon the distribution of the
Merger Shares to the shareholders of the Acquired Fund as contemplated
in Section 3 hereof; (iii) under Section 354 of the Code, no gain or
loss will be recognized by shareholders of the Acquired Fund on the
distribution of Merger Shares to them in exchange for their shares of
the Acquired Fund; (iv) under Section 358 of the Code, the aggregate tax
basis of the Merger Shares that the Acquired Fund's shareholders receive
in place of their Acquired Fund shares will be the same as the aggregate
tax basis of the Acquired Fund shares surrendered in exchange therefor;
and (v) under Section 1223(1) of the Code, an Acquired Fund's
shareholder's holding period for the Merger Shares received pursuant to
the Agreement will be determined by including the holding period for the
Acquired Fund shares exchanged for the Merger Shares, provided that the
shareholder held the Acquired Fund shares as a capital asset.
g. That all actions taken by the Xxxxxx Trust on behalf of the Acquiring
Fund in connection with the transactions contemplated by this Agreement
and all documents incidental thereto shall be satisfactory in form and
substance to the Acquired Fund and Ropes & Xxxx LLP.
17
h. That the Xxxxxx Trust shall have received from the Commission and any
relevant state securities administrator such order or orders as are
reasonably necessary or desirable under the 1933 Act, the 1934 Act, the
1940 Act and any applicable state securities or blue sky laws in
connection with the transactions contemplated hereby, and that all such
orders shall be in full force and effect.
i. That this Agreement shall have been adopted and the transactions
contemplated hereby shall have been approved by the requisite votes of
the holders of the outstanding shares of beneficial interest of the
Acquired Fund entitled to vote.
j. That the Registration Statement on Form N-1A of the Xxxxxx Trust, with
respect to the Acquiring Fund, shall have become effective under the
1933 Act, and no stop order suspending such effectiveness shall have
been instituted or, to the knowledge of the Xxxxxx Trust or the
Acquiring Fund, threatened by the Commission.
10. Indemnification.
a. The Acquired Fund shall indemnify and hold harmless, out of the assets
of the Acquired Fund but no other assets, the Xxxxxx Trust and the
Trustees and officers of the Xxxxxx Trust (for purposes of this
Section 10(a), the "Xxxxxx Trust Indemnified Parties") against any and
all expenses, losses, claims, damages and liabilities at any time
imposed upon or reasonably incurred by any one or more of the Xxxxxx
Trust Indemnified Parties in connection with, arising out of or
resulting from any claim, action, suit or proceeding in which any one or
more of the Xxxxxx Trust Indemnified Parties may be involved or with
which any one or more of the Xxxxxx Trust Indemnified Parties may be
threatened by reason of any untrue statement or alleged untrue statement
of a material fact relating to the Trust or the Acquired Fund contained
in this Agreement, the Registration Statement, the Acquired Fund
Prospectus or the Acquired Fund Proxy Statement or any amendment or
supplement to any of the foregoing, or arising out of or based upon the
omission or alleged omission to state in any of the foregoing a material
fact relating to the Trust or the Acquired Fund required to be stated
therein or necessary to make the statements relating to the Trust or the
Acquired Fund therein not misleading, including, without limitation, any
amounts paid by any one or more of the Xxxxxx Trust Indemnified Parties
in a reasonable compromise or settlement of any such claim, action, suit
or proceeding, or threatened claim, action, suit or proceeding made with
the consent of the Trust or the Acquired Fund. The Xxxxxx Trust
Indemnified Parties will notify the Trust and the Acquired Fund in
writing within ten days after the receipt by any one or more of the
Xxxxxx Trust Indemnified Parties of any notice of legal process or any
suit brought against or claim made against such Xxxxxx Trust Indemnified
Party as to any matters covered by this Section 10(a). The Acquired Fund
shall be entitled to participate at its own expense in the defense of
any claim, action, suit or proceeding covered by this Section 10(a), or,
if it so elects, to assume at its expense by counsel satisfactory to the
Xxxxxx Trust Indemnified Parties the defense of any such claim, action,
suit or proceeding, and if the Acquired Fund elects to assume such
defense, the Xxxxxx Trust Indemnified Parties shall be entitled to
participate in the defense of any such claim, action, suit or proceeding
at their expense. The Acquired Fund's obligation under this
Section 10(a) to indemnify and hold harmless the Xxxxxx Trust
Indemnified Parties shall
18
constitute a guarantee of payment so that the Acquired Fund will pay in
the first instance any expenses, losses, claims, damages and liabilities
required to be paid by it under this Section 10(a) without the necessity
of the Xxxxxx Trust Indemnified Parties' first paying the same.
b. The Acquiring Fund shall indemnify and hold harmless, out of the assets
of the Acquiring Fund but no other assets, the Trust and the Trustees
and officers of the Trust (for purposes of this Section 10(b), the
"Trust Indemnified Parties") against any and all expenses, losses,
claims, damages and liabilities at any time imposed upon or reasonably
incurred by any one or more of the Trust Indemnified Parties in
connection with, arising out of, or resulting from any claim, action,
suit or proceeding in which any one or more of the Trust Indemnified
Parties may be involved or with which any one or more of the Trust
Indemnified Parties may be threatened by reason of any untrue statement
or alleged untrue statement of a material fact relating to the Acquiring
Fund contained in this Agreement, the Registration Statement, the
Acquiring Fund Prospectus or the Acquired Fund Proxy Statement or any
amendment or supplement to any thereof, or arising out of, or based
upon, the omission or alleged omission to state in any of the foregoing
a material fact relating to the Xxxxxx Trust or the Acquiring Fund
required to be stated therein or necessary to make the statements
relating to the Xxxxxx Trust or the Acquiring Fund therein not
misleading, including, without limitation, any amounts paid by any one
or more of the Trust Indemnified Parties in a reasonable compromise or
settlement of any such claim, action, suit or proceeding, or threatened
claim, action, suit or proceeding made with the consent of the Xxxxxx
Trust or the Acquiring Fund. The Trust Indemnified Parties will notify
the Xxxxxx Trust and the Acquiring Fund in writing within ten days after
the receipt by any one or more of the Trust Indemnified Parties of any
notice of legal process or any suit brought against or claim made
against such Trust Indemnified Party as to any matters covered by this
Section 10(b). The Acquiring Fund shall be entitled to participate at
its own expense in the defense of any claim, action, suit or proceeding
covered by this Section 10(b), or, if it so elects, to assume at its
expense by counsel satisfactory to the Trust Indemnified Parties the
defense of any such claim, action, suit or proceeding, and, if the
Acquiring Fund elects to assume such defense, the Trust Indemnified
Parties shall be entitled to participate in the defense of any such
claim, action, suit or proceeding at their own expense. The Acquiring
Fund's obligation under this Section 10(b) to indemnify and hold
harmless the Trust Indemnified Parties shall constitute a guarantee of
payment so that the Acquiring Fund will pay in the first instance any
expenses, losses, claims, damages and liabilities required to be paid by
it under this Section 10(b) without the necessity of the Trust
Indemnified Parties' first paying the same.
11. No Broker, etc. Each of the Acquired Fund and the Acquiring Fund represents
that there is no person who has dealt with it or the Trust or the Xxxxxx
Trust, respectively, who, by reason of such dealings, is entitled to any
broker's or finder's or other similar fee or commission arising out of the
transactions contemplated by this Agreement.
19
12. Termination. The Acquired Fund and the Acquiring Fund may, by mutual
consent of the trustees on behalf of each Fund, terminate this Agreement,
and the Acquired Fund or the Acquiring Fund, after consultation with
counsel and by consent of its Trustees or an officer authorized by such
Trustees, may waive any condition to its respective obligations hereunder.
If the transactions contemplated by this Agreement have not been
substantially completed by December 31, 2007, this Agreement shall
automatically terminate on that date unless a later date is agreed to by
the Acquired Fund and the Acquiring Fund.
13. Covenants, etc. Deemed Material. All covenants, agreements, representations
and warranties made under this Agreement and any certificates delivered
pursuant to this Agreement shall be deemed to have been material and relied
upon by each of the parties, notwithstanding any investigation made by them
or on their behalf.
14. Rule 145. Pursuant to Rule 145 under the 1933 Act, the Acquiring Fund will,
in connection with the issuance of any Merger Shares to any person who at
the time of the transaction contemplated hereby is deemed to be an
affiliate of a party to the transaction pursuant to Rule 145(c), cause to
be affixed upon the certificates issued to such person (if any) a legend as
follows:
"THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT TO XXXXXX
XXXXXX VALUE FUND OR ITS PRINCIPAL UNDERWRITER UNLESS (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (ii) IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE FUND SUCH REGISTRATION IS NOT REQUIRED."
and, further, the Acquiring Fund will issue stop transfer instructions to
the Acquiring Fund's transfer agent with respect to such shares. The
Acquired Fund will provide the Acquiring Fund on the Exchange Date with the
name of any Acquired Fund shareholder who is to the knowledge of the
Acquired Fund an affiliate of the Acquired Fund on such date.
15. Sole Agreement; Amendments; Governing Law. This Agreement supersedes all
previous correspondence and oral communications between the parties
regarding the subject matter hereof, constitutes the only understanding
with respect to such subject matter, may not be changed except by a letter
of agreement signed by each party hereto, and shall be construed in
accordance with and governed by the laws of the Commonwealth of
Massachusetts.
16. Declaration of Trust.
a. A copy of the First Amended and Restated Agreement and Declaration of
Trust of the Xxxxxx Trust is on file with the Secretary of the
Commonwealth of Massachusetts, and notice is hereby given that this
instrument is executed on behalf of the Trustees of the Xxxxxx Trust on
behalf of the Acquiring Fund as trustees and not individually, and that
the obligations of this instrument are not binding upon any of the
trustees, officers or shareholders of the Xxxxxx Trust individually but
are binding only upon the assets and property of the Acquiring Fund.
20
b. A copy of the Third Amended and Restated Agreement and Declaration of
Trust of the Trust is on file with the Secretary of the Commonwealth of
Massachusetts, and notice is hereby given that this instrument is
executed on behalf of the Trustees of the Trust on behalf of the
Acquired Fund as trustees and not individually, and that the obligations
of this instrument are not binding upon any of the trustees, officers or
shareholders of the Trust individually but are binding only upon the
assets and property of the Acquired Fund.
* * * *
21
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as a sealed instrument as of the day and year first above written.
NATIXIS FUNDS TRUST I,
on behalf of its Natixis Value Fund
By: /s/ Xxxxxx Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxx Xxxxxxx
Title: Secretary
XXXXXX XXXXXX FUNDS II,
on behalf of its Xxxxxx Xxxxxx Value Fund
By: /s/ Xxxxxx Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxx Xxxxxxx
Title: Secretary
Agreed and accepted as to Section 5 only:
NATIXIS ASSET MANAGEMENT ADVISORS,L.P.
By: Natixis Distribution Corporation,
its general partner
By: /s/ Xxxxxx Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxx Xxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
