Sub-Item 77Q1(g)
AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is adopted as of this
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15/th/ day of October, 2013 by and among (i) AIM Equity Funds (Invesco Equity
Funds) an open-end registered investment company ("Target Entity"), on behalf
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of one of its series portfolios, Invesco Disciplined Equity Fund ("Target
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Fund"); (ii) The Advisors' Inner Circle Fund an open-end registered investment
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company ("Acquiring Entity"), on behalf of one of its series portfolios, AT
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Disciplined Equity Fund ("Acquiring Fund"); (iii) solely for the purposes of
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Sections 9.2 and 11.2 of this Agreement, Invesco Advisers, Inc., investment
adviser to the Target Fund ("IAI"); (iv) solely for the purposes of Section 9.2
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of this Agreement, CIBC; and (v) solely for the purposes of Section 11.1 of
this Agreement, Xxxxx Xxx Investment Counsel, Inc. ("SRIC"), investment adviser
of the Acquiring Fund. Other than the Target Fund and the Acquiring Fund, no
other series of either the Target Entity or the Acquiring Entity are parties to
this Agreement.
WHEREAS, Invesco, the parent company of IAI, entered into a definitive
agreement dated April 11, 2013 (the "Transaction Agreement") to sell its
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private wealth management business, operating under the Atlantic Trust and SRIC
brands, to CIBC, and, in connection therewith, the Target Fund's portfolio
management team will become employees of CIBC or its affiliate (referred to
herein as the "Invesco/CIBC Transaction");
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WHEREAS, the parties hereto intend for the Acquiring Fund and the Target
Fund to enter into a transaction pursuant to which: (i) the Acquiring Fund will
acquire all of the assets, property, and goodwill and assume all of the
liabilities of the Target Fund in exchange for shares of the Acquiring Fund of
equal value to the net assets of the Target Fund, and (ii) the Target Fund will
distribute such shares of the Acquiring Fund to shareholders of the Target
Fund, in connection with the liquidation of the Target Fund, all upon the terms
and conditions hereinafter set forth in this Agreement (the "Reorganization");
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WHEREAS, the Acquiring Fund is, and will be immediately prior to the
Closing (defined in Section 3.1), a shell series, without assets (other than
seed capital) or liabilities, created for the purpose of acquiring the assets
and liabilities of the Target Fund;
WHEREAS, the Target Entity and the Acquiring Entity each is an open-end,
investment company of the management type registered with the Securities and
Exchange Commission (the "Commission"); and
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WHEREAS, this Agreement is intended to be and is adopted as a plan of
reorganization with respect to the Reorganization within the meaning of
Section 368(a)(1)(F) of the United States Internal Revenue Code of 1986, as
amended (the "Code").
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NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, and intending to be legally bound, the
parties hereto covenant and agree as follows:
1. DESCRIPTION OF THE REORGANIZATION
1.1. Provided that all conditions precedent to the Reorganization set forth
herein have been satisfied as of the Closing Date (as defined in Section 3.1),
and based on the representations and warranties each party provides to the
others, the Target Entity and the Acquiring Entity agree to take the following
steps with respect to the Reorganization:
(a) The Target Fund shall transfer all of its Assets, as defined and set
forth in Section 1.1(b), to the Acquiring Fund, and the Acquiring Fund in
exchange therefor shall assume the Liabilities, as defined and set forth in
Section 1.1(c), and deliver to the Target Fund the number of full and
fractional Institutional Class shares of the Acquiring Fund determined in
the manner set forth in Section 2.
(b) The assets of the Target Fund to be transferred to the Acquiring Fund
shall consist of all assets, property, and goodwill including, without
limitation, all cash, securities, commodities and futures interests, claims
(whether absolute or contingent, known or unknown, accrued or unaccrued and
including, without limitation, any interest in pending or future legal
claims in connection with past or present portfolio holdings, whether in the
form of class action claims, opt-out or other direct litigation claims, or
regulator or government-established investor recovery fund claims, and any
and all resulting recoveries) and dividends or interest receivable that are
owned by the Target Fund and any deferred or prepaid expenses shown as an
asset on the books of the Target Fund on the Closing Date, except for cash
in an amount necessary to pay any distributions pursuant to Section 7.1(f)
(collectively, "Assets").
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(c) The Acquiring Fund shall assume all of the liabilities of the Target
Fund, whether accrued or contingent, known or unknown, existing at the
Closing Date (collectively, "Liabilities").
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(d) As soon as reasonably practicable after the Closing, the Target Fund
will distribute to its shareholders of record ("Target Fund Shareholders")
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Institutional Class shares of the Acquiring Fund received by the Target Fund
pursuant to Section 1.1(a) on a pro rata basis, and the Target Fund will as
promptly as practicable thereafter completely liquidate and dissolve. Such
distribution and liquidation will be accomplished, with respect to the
Target Fund's shares, by the transfer of the Acquiring Fund shares then
credited to the account of the Target Fund on the books of the Acquiring
Fund to open accounts on the share records of the Acquiring Fund in the
names of the Target Fund Shareholders. At the Closing, any outstanding
certificates representing shares of the Target Fund will be cancelled. The
Acquiring Fund shall not issue certificates representing shares in
connection with such exchange, irrespective of whether Target Fund
shareholders hold their Target Fund shares in certificated form.
(e) Ownership of Acquiring Fund shares will be shown on its books, as
such are maintained by the Acquiring Fund's transfer agent.
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2. VALUATION
2.1. With respect to the Reorganization:
(a) The net value of the Target Fund's Assets to be acquired by the
Acquiring Fund hereunder shall be computed as of the Valuation Time (defined
below) by calculating the value of the Assets, which shall reflect the
declaration of any dividends, and subtracting therefrom the amount of the
Liabilities using the valuation procedures established by the Acquiring
Fund's Board of Trustees ("Acquiring Fund's Valuation Procedures").
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(b) The number of Institutional Class shares issued by the Acquiring Fund
(including fractional shares, if any, rounded to the nearest thousandth) in
exchange for the Target Fund's Assets shall equal the number of Class Y
shares of the Target Fund outstanding as of the Valuation Time.
(c) The net asset value per share of the Acquiring Fund's Institutional
Class shares issued in connection with the Reorganization shall be
determined to the nearest full cent as of the Valuation Time, by dividing
the net value of the Target Fund's Assets (described in Section 2.1(a)
hereof) by the number of Institutional Class shares issued by the Acquiring
Fund in connection with the Reorganization (described in Section 2.1(b)
hereof).
(d) All computations of value shall be made by the Acquiring Fund's
administrator using the Acquiring Fund's Valuation Procedures and shall be
subject to review by the Target Fund's recordkeeping agent and, if requested
by either the Target Entity or the Acquiring Entity, by the independent
registered public accountant of the requesting party.
(e) "Valuation Time" shall mean immediately after the close of regular
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trading on the New York Stock Exchange ("NYSE") on the Valuation Date.
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(f) "Valuation Date" shall mean the business day next preceding the
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Closing Date.
3. CLOSING AND CLOSING DATE
3.1. The Reorganization shall close on [November 1, 2013] or such other date
as the parties may agree (the "Closing Date"). All acts taking place at the
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closing of the Reorganization ("Closing") shall be deemed to take place
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simultaneously as of immediately prior to the opening of regular trading on the
NYSE on the Closing Date unless otherwise agreed to by the parties (the
"Closing Time"). The Closing of the Reorganization shall be held in person, by
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facsimile, email or such other communication means as the parties may agree.
3.2. With respect to the Reorganization:
(a) The Target Fund's portfolio securities, investments or other assets
that are represented by a certificate or other written instrument shall be
transferred and delivered
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by the Target Fund as of the Closing Date to the Acquiring Fund's custodian
(the "Acquiring Custodian") for the account of the Acquiring Fund duly
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endorsed in proper form for transfer and in such condition as to constitute
good delivery thereof. The Target Entity shall direct the Target Fund's
custodian (the "Target Custodian") to deliver to the Acquiring Custodian as
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of the Closing Date by book entry, in accordance with customary practices of
the Target Custodian and any securities depository (as defined in Rule 17f-4
under the Investment Company Act of 1940, as amended (the "1940 Act")), in
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which the Assets are deposited, the Target Fund's portfolio securities and
instruments so held. The cash to be transferred by the Target Fund shall be
delivered to the Acquiring Custodian by wire transfer of federal funds or
other appropriate means on the Closing Date. If the Target Fund is unable to
make such delivery on the Closing Date in the manner contemplated by this
Section for the reason that any of such securities or other investments
purchased prior to the Closing Date have not yet been delivered to the
Target Fund or its broker, then the Acquiring Fund may, in its sole
discretion, waive the delivery requirements of this Section with respect to
said undelivered securities or other investments if the Target Fund has, by
or on the Closing Date, delivered to the Acquiring Fund or the Acquiring
Custodian executed copies of an agreement of assignment and escrow and due
bills executed on behalf of said broker or brokers, together with such other
documents as may be required by the Acquiring Fund or the Acquiring
Custodian, such as brokers' confirmation slips.
(b) The Target Entity shall direct the Target Custodian to deliver, at
the Closing or promptly thereafter, a certificate of an authorized officer
stating that [except as permitted by Section 3.2(a),] the Assets have been
delivered in proper form to the Acquiring Fund no later than the Closing
Time on the Closing Date. The Target Entity shall be responsible for paying
all necessary taxes in connection with the delivery of the Assets, including
all applicable Federal, state and foreign stock transfer stamps, if any, and
shall deliver, at the Closing or promptly thereafter, a certificate of an
authorized officer of the Target Entity stating that all such taxes have
been paid or provision for payment has been made.
(c) At such time prior to the Closing Date as the parties mutually agree,
the Target Fund shall provide (i) instructions and related information to
the Acquiring Fund or its transfer agent with respect to the Target Fund
Shareholders, including names, addresses, dividend reinvestment elections
and tax withholding status of the Target Fund Shareholders as of the date
agreed upon (such information to be updated as of the Closing Date, as
necessary) and (ii) the information and documentation maintained by the
Target Fund or its agents relating to the identification and verification of
the Target Fund Shareholders under the USA PATRIOT ACT and other applicable
anti-money laundering laws, rules and regulations and such other information
as the Acquiring Fund may reasonably request.
(d) The Target Entity shall direct the transfer agent for the Target Fund
(the "Target Transfer Agent") to deliver to the Acquiring Fund at the
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Closing a certificate of an authorized officer stating that its records, as
provided to the Acquiring Entity, contain the names and addresses of the
Target Fund Shareholders and the number of outstanding shares owned by each
such shareholder immediately prior to the Closing. The Acquiring
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Fund shall issue and deliver to the Secretary of the Target Fund a
confirmation evidencing the Acquiring Fund shares to be credited on the
Closing Date, or provide other evidence reasonably satisfactory to the
Target Entity that such Acquiring Fund shares have been credited to the
Target Fund Shareholders' accounts on the books of the Acquiring Fund. At
the Closing, each party shall deliver to the other such bills of sale,
checks, assignments, certificates, if any, receipts or other documents as
such other party or its counsel may reasonably request.
(e) In the event that on the Valuation Date or the Closing Date (a) the
NYSE or another primary trading market for portfolio securities of the
Target Fund (each, an "Exchange") shall be closed to trading or trading
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thereupon shall be restricted, or (b) trading or the reporting of trading on
such Exchange or elsewhere shall be disrupted so that, in the judgment of
the Board of Trustees of the Acquiring Entity or the Target Entity or the
authorized officers of either of such entities, accurate appraisal of the
value of the net assets of the Target Fund is impracticable, the Closing
Date shall be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1. Target Entity, on behalf of itself or, where applicable, the Target
Fund, represents and warrants to the Acquiring Entity and the Acquiring Fund as
follows:
(a) The Target Fund is duly organized as a series of the Target Entity,
which is a statutory trust duly formed, validly existing, and in good
standing under the laws of the State of Delaware with power under its
Agreement and Declaration of Trust, as amended, and by-laws ("Governing
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Documents"), to own all of its Assets, to carry on its business as it is now
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being conducted and to enter into this Agreement and perform its obligations
hereunder;
(b) The Target Entity is a registered investment company classified as a
management company of the open-end type, and its registration with the
Commission as an investment company under the 1940 Act, and the registration
of the issued and outstanding shares of the Target Fund under the Securities
Act of 1933, as amended ("1933 Act"), are in full force and effect;
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(c) No consent, approval, authorization, or order of any court or
governmental authority or the Financial Industry Regulatory Authority
("FINRA") is required for the consummation by the Target Fund and the Target
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Entity of the transactions contemplated herein, except such as have been
obtained or will be obtained at or prior to the Closing Date under the 1933
Act, the Securities Exchange Act of 1934, as amended ("1934 Act"), the 1940
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Act and state securities laws;
(d) The current prospectus and statement of additional information of the
Target Fund and each prospectus and statement of additional information of
the Target Fund used at all times between the commencement of operations of
the Target Fund and the date of this Agreement conforms or conformed at the
time of its use in all material
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respects to the applicable requirements of the 1933 Act and the 1940 Act and
the rules and regulations of the Commission thereunder and does not or did
not at the time of its use include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not materially misleading;
(e) The Target Fund is in compliance in all material respects with the
applicable investment policies and restrictions set forth in the Target
Fund's prospectus and statement of additional information;
(f) Except as otherwise disclosed to and accepted by or on behalf of the
Acquiring Fund, the Target Fund will on the Closing Date have good title to
the Assets and full right, power, and authority to sell, assign, transfer
and deliver such Assets free of adverse claims, including any liens or other
encumbrances, and upon delivery and payment for such Assets, the Acquiring
Fund will acquire good title thereto, free of adverse claims and subject to
no restrictions on the full transfer thereof, including, without limitation,
such restrictions as might arise under the 1933 Act, provided that, if
disclosed in writing to the Acquiring Fund, the Acquiring Fund will acquire
Assets that are segregated as collateral for the Target Fund's derivative
positions, if any, including without limitation, as collateral for swap
positions and as margin for futures positions, if any, subject to such
segregation and liens that apply to such Assets;
(g) The Target Fund is not engaged currently, and the execution, delivery
and performance of this Agreement will not result, in (i) a violation of the
Target Entity's Governing Documents or a material violation of any material
agreement, indenture, instrument, contract, lease or other undertaking to
which the Target Fund or the Target Entity is a party or by which it is
bound, or (ii) the acceleration of any material obligation, or the
imposition of any material lien, encumbrance, penalty, or additional fee
under any agreement, indenture, instrument, contract, lease, judgment or
decree to which the Target Fund or the Target Entity is a party or by which
it is bound;
(h) Except as otherwise disclosed in writing to and accepted by or on
behalf of the Acquiring Fund, no litigation or administrative proceeding or
investigation of or before any court, tribunal, arbitrator, governmental
body or FINRA is presently pending or, to the Target Entity's or the Target
Fund's knowledge, threatened against the Target Entity or the Target Fund
that, if adversely determined, would materially and adversely affect the
Target Entity's or the Target Fund's financial condition, the conduct of its
business or its ability to consummate the transactions contemplated by this
Agreement. The Target Fund and the Target Entity, without any special
investigation or inquiry, know of no facts that might form the basis for the
institution of such proceedings or investigations, and neither the Target
Entity nor the Target Fund is a party to or subject to the provisions of any
order, decree or judgment of any court, tribunal, arbitrator, governmental
body or FINRA that materially and adversely affects its business or its
ability to consummate the transactions herein contemplated;
(i) The financial statements of the Target Fund for the Target Fund's
most recently completed fiscal year have been audited by the independent
registered public
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accounting firm identified in the Target Fund's prospectus or statement of
additional information included in the Target Fund's registration statement
on Form N-1A (the "Prospectus" and "Statement of Additional Information").
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Such statements, as well as the unaudited, semi-annual financial statements
for the semi-annual period next succeeding the Target Fund's most recently
completed fiscal year, if any, were prepared in accordance with accounting
principles generally accepted in the United States of America ("GAAP")
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consistently applied, and such statements present fairly, in all material
respects, the financial condition of the Target Fund as of such date in
accordance with GAAP, and there are no known contingent liabilities of the
Target Fund required to be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of such date not disclosed therein;
(j) Since the last day of the Target Fund's most recently completed
fiscal year, there has not been any material adverse change in the Target
Fund's financial condition, assets, liabilities or business, other than
changes occurring in the ordinary course of business. For purposes of this
paragraph, a decline in net asset value due to declines in market value of
securities held by the Target Fund, the redemption of Target Fund shares
held by shareholders of the Target Fund or the discharge of the Target
Fund's ordinary course liabilities shall not constitute a material adverse
change;
(k) On the Closing Date, all Returns (as defined below) of the Target
Fund required by law to have been filed by such date (including any
extensions) shall have been filed and are or will be true, correct and
complete in all material respects, and all Taxes (as defined below) shown as
due or claimed to be due by any government entity shall have been paid or
provision has been made for the payment thereof. To the Target Fund's
knowledge, no such Return is currently under audit by any Federal, state,
local or foreign Tax authority; no assessment has been asserted with respect
to such Returns; there are no levies, liens or other encumbrances on the
Target Fund or its assets resulting from the non-payment of any Taxes; no
waivers of the time to assess any such Taxes are outstanding nor are any
written requests for such waivers pending; and adequate provision has been
made in the Target Fund financial statements for all Taxes in respect of all
periods ended on or before the date of such financial statements. As used in
this Agreement, "Tax" or "Taxes" means any tax, governmental fee or other
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like assessment or charge of any kind whatsoever (including, but not limited
to, withholding on amounts paid to or by any person), together with any
interest, penalty, addition to tax or additional amount imposed by any
governmental authority (domestic or foreign) responsible for the imposition
of any such tax. "Return" means reports, returns, information returns,
elections, agreements, declarations, or other documents of any nature or
kind (including any attached schedules, supplements and additional or
supporting material) filed or required to be filed with respect to Taxes,
including any claim for refund, amended return or declaration of estimated
Taxes (and including any amendments with respect thereto);
(l) The Target Fund has elected to be a regulated investment company
under Subchapter M of the Code and is a fund that is treated as a separate
corporation under Section 851(g) of the Code. The Target Fund has qualified
for treatment as a regulated investment company for each taxable year since
inception that has ended prior to the Closing Date and will have satisfied
the requirements of Part I of Subchapter M of the
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Code to maintain such qualification for the period beginning on the first
day of its current taxable year and ending on the Closing Date. The Target
Fund has no earnings or profits accumulated in any taxable year in which the
provisions of Subchapter M of the Code did not apply to it;
(m) All issued and outstanding shares of the Target Fund are, and on the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by the Target Entity and, in every state where offered or
sold, such offers and sales have been in compliance in all material respects
with applicable registration and/or notice requirements of the 1933 Act and
state and District of Columbia securities laws;
(n) The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action, if
any, on the part of the Board of Trustees of the Target Entity, on behalf of
the Target Fund, and subject to the approval of the shareholders of the
Target Fund and the due authorization, execution and delivery of this
Agreement by the other parties hereto, this Agreement will constitute a
valid and binding obligation of the Target 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;
(o) Within a timeframe mutually agreeable to the parties, the Target Fund
will provide the Acquiring Fund with such information relating to the Target
Fund as is reasonably necessary for the preparation of the N-14 Registration
Statement in connection with the meeting of shareholders of the Target Fund
to approve this Agreement and such information, as of the date provided
through the date of the meeting of shareholders of the Target Fund, 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, in light of the circumstances under which such statements were
made, not misleading, provided, however, that the representations and
warranties in this paragraph shall not apply to statements in or omissions
from the N-14 Registration Statement made in reliance upon and in conformity
with information that was furnished by the Acquiring Entity for use therein;
(p) The books and records of the Target Fund are true and correct in all
material respects and contain no material omissions with respect to
information required to be maintained under the laws, rules and regulations
applicable to the Target Fund;
(q) The Target Fund is not under the jurisdiction of a court in a Title
11 or similar case within the meaning of Section 368(a)(3)(A) of the Code;
and
(r) The Target Fund has no unamortized or unpaid organizational fees or
expenses.
(s) Except as otherwise disclosed in writing to and accepted by or on
behalf of the Acquired Fund, the Target 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.
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(t) The Target Fund is in compliance in all material respects with
applicable regulations of the Internal Revenue Service pertaining to the
reporting of dividends and other distributions on and redemptions of its
shares of beneficial interest, including but not limited to those related to
shareholder cost basis reporting pursuant to Sections 1012, 6045, 6045A and
6045B of the Code and related Treasury regulations, and has withheld in
respect of dividends and other distributions and paid to the proper taxing
authorities all taxes required to be withheld, and is not liable for any
penalties which could be imposed thereunder.
4.2. The Acquiring Entity, on behalf of the Acquiring Fund, represents and
warrants to the Target Entity and the Target Fund as follows:
(a) The Acquiring Fund is duly organized as a series of the Acquiring
Entity, which is a business trust duly formed and validly existing, and in
good standing under the laws of the Commonwealth of Massachusetts, with
power under its Governing Documents, to own all of its properties and assets
and to carry on its business as it is now being, and as it is contemplated
to be, conducted, and to enter into this Agreement and perform its
obligations hereunder. As used in this Agreement, the term "good standing
under the laws of the Commonwealth of Massachusetts" means (i) having filed
a copy of the Acquiring Entity's declaration of trust pursuant to Chapter
182 of the General Laws of the Commonwealth of Massachusetts ("Chapter
182"), (ii) having filed the necessary certificates required to be filed
under Chapter 182, (iii) having paid the necessary fees due thereon and
(iv) being authorized to exercise in the Commonwealth of Massachusetts all
of the powers recited in the Acquiring Entity's declaration of trust and to
transact business in the Commonwealth of Massachusetts;
(b) The Acquiring Entity is a registered investment company classified as
a management company of the open-end type, and its registration with the
Commission as an investment company under the 1940 Act is in full force and
effect;
(c) Prior to the Closing, the registration of the class shares of the
Acquiring Fund to be issued in the Reorganization under the 1933 Act will be
in full force and effect;
(d) No consent, approval, authorization, or order of any court,
governmental authority or FINRA is required for the consummation by the
Acquiring Fund and the Acquiring Entity of the transactions contemplated
herein, except such as have been or will be obtained (at or prior to the
Closing Date) under the 1933 Act, the 1934 Act, the 1940 Act and state
securities laws;
(e) The prospectuses and statements of additional information of the
Acquiring Fund, including supplements thereto, to be used in connection with
the Reorganization will conform at the time of their use in all material
respects to the applicable requirements of the 1933 Act and the 1940 Act and
the rules and regulations of the Commission thereunder and will not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
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statements therein, in light of the circumstances under which they were
made, not materially misleading;
(f) On the Closing Date, the Acquiring Fund will have no assets other
than nominal seed capital contributed by the initial shareholder of the
Acquiring Fund;
(g) The Acquiring Fund is not engaged currently, and the execution,
delivery and performance of this Agreement will not result, in (i) a
violation of the Acquiring Entity's Governing Documents or a material
violation of any material agreement, indenture, instrument, contract, lease
or other undertaking to which the Acquiring Fund or the Acquiring Entity is
a party or by which it is bound, or (ii) the acceleration of any material
obligation, or the imposition of any material lien, encumbrance, penalty, or
additional fee under any agreement, indenture, instrument, contract, lease,
judgment or decree to which the Acquiring Fund or the Acquiring Entity is a
party or by which it is bound;
(h) Except as otherwise disclosed in writing to and accepted by or on
behalf of the Target Fund, no litigation or administrative proceeding or
investigation of or before any court, tribunal, arbitrator, governmental
body or FINRA is presently pending or, to the Acquiring Entity's knowledge,
threatened against the Acquiring Entity or the Acquiring Fund that, if
adversely determined, would materially and adversely affect the Acquiring
Entity's or the Acquiring Fund's financial condition, the conduct of its
business or its ability to consummate the transactions contemplated by this
Agreement. The Acquiring Fund and the Acquiring Entity, without any special
investigation or inquiry, know of no facts that might form the basis for the
institution of such proceedings and neither the Acquiring Entity nor the
Acquiring Fund is a party to or subject to the provisions of any order,
decree or judgment of any court, governmental body or FINRA that materially
and adversely affects its business or its ability to consummate the
transactions herein contemplated;
(i) The Acquiring Fund is, and will be at the time of Closing, a new
series portfolio of the Acquiring Entity created within the last 12 months,
without assets (other than nominal seed capital) or liabilities, formed for
the purpose of receiving the Assets and assuming the Liabilities of the
Target Fund in connection with the Reorganization and, accordingly, the
Acquiring Fund has not commenced operations, prepared books of account and
related records or financial statements or issued any shares except those
issued in a private placement to the initial shareholder of the Acquiring
Fund to secure any required initial shareholder approvals;
(j) By the Closing, the Acquiring Entity's board of trustees and officers
shall have taken all actions as are necessary under the 1933 Act, 1934 Act,
1940 Act and any applicable state securities laws for the Acquiring Fund to
commence operations as a registered open-end management investment company,
including, without limitation, approving and executing investment advisory
contracts in the manner required by the 1940 Act and approving and executing
such other contracts as are necessary for the operation of the Acquiring
Fund;
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(k) On the Closing Date, all Returns of the Acquiring Fund required by
law to have been filed by such date (including any extensions), if any,
shall have been filed and are or will be true, correct and complete in all
material respects, and all Taxes shown as due or claimed to be due by any
government entity shall have been paid or provision has been made for the
payment thereof. To the Acquiring Fund's knowledge, no such Return is
currently under audit by any Federal, state, local or foreign Tax authority;
no assessment has been asserted with respect to such Returns; there are no
levies, liens or other encumbrances on the Acquiring Fund or its assets
resulting from the non-payment of any Taxes; and no waivers of the time to
assess any such Taxes are outstanding nor are any written requests for such
waivers pending; and adequate provision has been made in the Acquiring Fund
financial statements for all Taxes in respect of all periods ended on or
before the date of such financial statements;
(l) The Acquiring Fund intends to elect and qualify as a regulated
investment company for federal income tax purposes under Part I of
Subchapter M of the Code, the Acquiring Fund will be a "fund" as defined in
Section 851(g)(2) of the Code, and the consummation of the transactions
contemplated by the Agreement will not cause the Acquiring Fund to fail to
be qualified as a regulated investment company from and after the Closing;
(m) All issued and outstanding Acquiring Fund shares are, and on the
Closing Date will be, duly authorized and validly issued and outstanding,
fully paid and non-assessable by the Acquiring Entity and, in every state
where offered or sold, such offers and sales have been in compliance in all
material respects with applicable registration and/or notice requirements of
the 1933 Act and state and District of Columbia securities laws or
exemptions therefrom;
(n) The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action, if
any, on the part of the board of the trustees of the Acquiring Entity, on
behalf of the Acquiring Fund, and subject to the approval of shareholders of
the Target Fund and the due authorization, execution and delivery of this
Agreement by the other parties hereto, this Agreement will constitute 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;
(o) The shares of the Acquiring Fund to be issued and delivered to the
Target Fund, for the account of the Target Fund Shareholders, pursuant to
the terms of this Agreement, will on the Closing Date have been duly
authorized and, when so issued and delivered, will be duly and validly
issued Acquiring Fund shares, and, upon receipt of the Target Fund's Assets
in accordance with the terms of this Agreement, will be fully paid and
non-assessable by the Acquiring Entity and the Acquiring Fund;
(p) The Acquiring Fund is not under the jurisdiction of a court in a
Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the
Code;
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(q) The Acquiring Fund has no unamortized or unpaid organizational fees
or expenses for which it does not expect to be reimbursed by Invesco or its
affiliates.
(r) The information provided by the Acquiring Fund for use in the N-14
Registration Statement will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein, in
light of the circumstances under which such statements were made, not
misleading, on the effective date of such N-14 Registration Statement,
provided, however, that the representations and warranties in this paragraph
shall not apply to statements in or omissions from the N-14 Registration
Statement made in reasonable reliance upon and in conformity with
information that was furnished by the Target Fund for use therein;
5. COVENANTS OF THE ACQUIRING FUND AND THE TARGET FUND
5.1. With Respect to the Reorganization:
(a) The Target Fund: (i) will operate its business in the ordinary course
and substantially in accordance with past practices between the date hereof
and the Closing Date for the Reorganization, it being understood that such
ordinary course of business for the Target Fund may include the declaration
and payment of customary dividends and distributions, and any other
distribution that may be advisable, and (ii) shall use its reasonable best
efforts to preserve intact its business organization and material assets and
maintain the rights, franchises and business and customer relations
necessary to conduct the business operations of the Target Fund in the
ordinary course in all material respects. The Acquiring Fund shall not have
commenced operations, prepared books of account and related records or
financial statements or issued any shares except for the those operations
commenced, books of accounts and related records or financial statements
prepared or shares issued in connection with a private placement to the
initial shareholder of the Acquiring Fund to secure any required initial
shareholder approvals.
(b) The parties hereto shall cooperate in preparing, and the Acquiring
Entity shall file with the Commission, a registration statement on Form N-14
under the 1933 Act which shall properly register the Acquiring Fund shares
to be issued in connection with the Reorganization and include a proxy
statement with respect to the votes of the shareholders of the Target Fund
to approve the Reorganization (the "N-14 Registration Statement").
---------------------------
(c) The Target Entity will call a meeting of the shareholders of the
Target Fund to consider and act upon this Agreement and to take all other
action necessary to obtain approval of the transactions contemplated herein.
(d) The Target 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 thereof, other than in accordance with the terms of this
Agreement.
(e) The Target Fund will assist the Acquiring Fund in obtaining such
information as the Acquiring Fund reasonably requests concerning the
beneficial ownership of the Target Fund's shares.
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(f) The Target Entity, on behalf of the Target Fund, will provide the
Acquiring Fund with (1) a statement of the respective tax basis and holding
period of all investments to be transferred by the Target Fund to the
Acquiring Fund, (2) a copy (which may be in electronic form) of the
shareholder ledger accounts including, without limitation, the name, address
and taxpayer identification number of each shareholder of record, the number
of shares of beneficial interest held by each shareholder, the dividend
reinvestment elections applicable to each shareholder, and the backup
withholding and nonresident alien withholding certifications, notices or
records on file with the Target Fund with respect to each shareholder,
including such information as the Acquiring Entity may reasonably request
concerning Target Fund shares or Target Fund shareholders in connection with
Acquiring Fund's cost basis reporting and related obligations under Sections
1012, 6045, 6045A, and 6045B of the Code and related Treasury regulations
following the Closing for all of the shareholders of record of the Target
Fund as of the close of business on the Valuation Date, who are to become
shareholders of the Acquiring Fund as a result of the transfer of Assets
(the "Target Fund Shareholder Documentation"), certified by its transfer
agent or its President or Vice-President to the best of their knowledge and
belief, (3) the tax books and records of the Target Fund (including but not
limited to any income, excise or information returns, as well as any
transfer statements (as described in Treas. Reg. (S) 1.6045A-1 and (S)
1.6045B-1(a))) for purposes of preparing any returns required by law to be
filed for tax periods ending after the Closing Date, and (4) all FASB ASC
000-00-00 (formerly FIN 48) workpapers and supporting statements pertaining
to the Target Fund (the "FIN 48 Workpapers"). The foregoing information to
be provided within such timeframes as is mutually agreed by the parties.
(g) Subject to the provisions of this Agreement, the Acquiring Fund and
the Target 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.
(h) Promptly after the Closing, the Target Fund will make one or more
liquidating distributions to its shareholders consisting of the shares of
the Acquiring Fund received at the Closing, as set forth in Section 1.1(d)
hereof.
(i) After the Closing Date, the Target Entity, on behalf of the Target
Fund, shall deliver to the Acquiring Fund a statement of the earnings and
profits (accumulated and current) of the Target Fund for federal income tax
purposes that will be carried over to the Acquiring Fund as a result of
Section 381 of the Code.
(j) It is the intention of the parties that the Reorganization will
qualify as a reorganization with the meaning of Section 368(a)(1)(F) of the
Code. None of the parties to the Reorganization shall take any action or
cause any action to be taken (including, without limitation the filing of
any tax return) that is inconsistent with such treatment or results in the
failure of such Reorganization to qualify as a reorganization within the
meaning of Section 368(a)(1)(F) of the Code.
(k) Any reporting responsibility of the Target Fund, including, but not
limited
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to, the responsibility for filing regulatory reports, Tax Returns relating
to tax periods ending on or prior to the Closing Date (whether due before or
after the Closing Date), or other documents with the Commission, any state
securities commission, and any Federal, state or local tax authorities or
any other relevant regulatory authority, is and shall remain the
responsibility of the Target Fund, except as otherwise is mutually agreed by
the parties.
(l) The Target Entity, on behalf of the Target Fund, shall deliver to the
Acquiring Fund copies of: (1) the federal, state and local income tax
returns filed by or on behalf of the Target Fund for the prior three
(3) taxable years; and (2) any of the following that have been issued to or
for the benefit of or that otherwise affect the Target Fund and which have
continuing relevance: (a) rulings, determinations, holdings or opinions
issued by any federal, state, local or foreign tax authority and (b) legal
opinions.
(m) The Target Entity, on behalf of the Target Fund, agrees that the
acquisition of all assets and liabilities of the Target Fund by the
Acquiring Entity, on behalf of the Acquiring Fund, includes any right of
action against current and former service providers of the Target Fund, such
right to survive for the statute of limitation of any such claim. For the
avoidance of all doubt, the Target Entity hereby assigns to the Acquiring
Entity all rights, causes of action, and other claims against third parties
relating to the Target Fund, whether known or unknown, contingent or
non-contingent, inchoate or xxxxxx, or otherwise.
(n) The Target Entity and the Acquiring Entity will coordinate with their
respective administrators to provide a valuation check to determine whether
the use of the Acquiring Fund's Valuation Procedures will result in material
differences in the prices of the portfolio securities of the Target Fund as
compared to the prices of the same portfolio securities determined using the
Acquiring Trust's valuation procedures, such valuation check to be conducted
no later than one month prior to the Closing Date and again within one week
of the Closing Date on mutually agreeable dates. In the event that such
valuation check reveals material pricing differences, the Target Entity and
the Acquiring Entity will work together, in good faith, to eliminate or
minimize such differences prior to the Closing.
(o) The Acquiring Entity covenants that it will not make any material
changes to the Acquiring Fund's Valuation Procedures prior to the Closing
Date without providing the Target Entity with written notice of such changes
at least ten days prior to the effective date of such changes.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TARGET FUND
6.1. The obligations of the Target Entity, on behalf of the Target Fund, to
consummate the transactions provided for herein shall be subject, at the Target
Fund's election, to the performance by the Acquiring Entity and the Acquiring
Fund of all of the obligations to be performed by it hereunder on or before the
Closing Date, and, in addition thereto, the following conditions:
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(a) All representations and warranties of the Acquiring Fund and the
Acquiring Entity contained in this Agreement shall be true and correct in
all material respects as of the date hereof and, except as they may be
affected by the transactions contemplated by this Agreement, as of the
Closing Date, with the same force and effect as if made on and as of the
Closing Date;
(b) The Acquiring Entity shall have delivered to the Target Entity on the
Closing Date a certificate executed in its name by its President or Vice
President and Treasurer, in form and substance reasonably satisfactory to
the Target Entity and dated as of the Closing Date, to the effect that the
representations and warranties of or with respect to the Acquiring Fund made
in this Agreement are true and correct in all material respects at and as of
the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement;
(c) The Acquiring Entity and the Acquiring Fund shall have performed all
of the covenants and complied with all of the provisions required by this
Agreement to be performed or complied with by the Acquiring Entity and the
Acquiring Fund, on or before the Closing Date;
(d) The Acquiring Entity has not made any material changes to the
Acquiring Fund's Valuation Procedures between the date of this Agreement and
the Closing Date, except as provided in Section 5.1(o) herein;
(e) The Target Entity shall have received a favorable opinion of Xxxxxx,
Xxxxx & Bockius LLP, counsel to the Acquiring Entity, dated the Closing Date
and in a form satisfactory to the Target Entity, to the following effect:
(i) The Acquiring Entity is duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has power to
own all of its properties and assets and to carry on its business as presently
conducted and the Acquiring Fund is a separate series thereof duly constituted
in accordance with the applicable provisions of the 1940 Act and the
organizational documents of the Acquiring Entity;
(ii) This Agreement has been duly authorized, executed and delivered on
behalf of the Acquiring Entity and, assuming the due authorization, execution
and delivery of this Agreement by all other parties, is the valid and binding
obligation of the Acquiring Entity enforceable against the Acquiring Entity 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;
(iii) The shares of the Acquiring Fund to be issued for transfer to the
Target Fund's shareholders as provided by this Agreement are duly authorized
and upon such transfer and delivery will be validly issued and outstanding and,
assuming receipt by the Acquiring Fund of the consideration contemplated
hereby, fully paid and nonassessable shares in the Acquiring Fund, and no
shareholder of the Acquiring Fund has any preemptive right of subscription or
purchase in respect thereof;
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(iv) The execution and delivery of this Agreement did not, and the
performance by the Acquiring Entity of its obligations hereunder will not,
violate the Acquiring Entity's organizational documents;
(v) The Acquiring Entity is registered with the Commission as an
open-end management investment company under the 1940 Act, and, to such
counsel's knowledge, its registration with the Commission is in full force and
effect;
(vi) Except as disclosed in writing to the Target Entity, such counsel
knows of no material legal proceedings pending against the Acquiring Fund or
the Acquiring Entity; and
(vii) 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 Acquiring Entity of the transactions contemplated by
this Agreement except such as have been obtained; and
(f) In connection with the opinion contemplated by Section 6.1(e) of this
Agreement, it is understood that counsel may reasonably rely upon the
representations made in this Agreement as well as certificates of officers
of the Acquiring Entity.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
7.1. With respect to the Reorganization, the obligations of the Acquiring
Entity, on behalf of the Acquiring Fund, to consummate the transactions
provided for herein shall be subject, at the Acquiring Fund's election, to the
performance by the Target Entity and the Target Fund of all of the obligations
to be performed by it hereunder on or before the Closing Date and, in addition
thereto, the following conditions:
(a) All representations and warranties of the Target Entity and the
Target Fund contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected
by the transactions contemplated by this Agreement, as of the Closing Date,
with the same force and effect as if made on and as of the Closing Date;
(b) The Target Entity shall have delivered to the Acquiring Entity on the
Closing Date a certificate executed in its name by its President or Vice
President and Treasurer, in form and substance reasonably satisfactory to
the Acquiring Entity and dated as of the Closing Date, to the effect that
the representations and warranties of or with respect to the Target Fund
made in this Agreement are true and correct in all material respects at and
as of the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement;
(c) The Target Entity, on behalf of the Target Fund, shall have delivered
to the Acquiring Entity (i) a statement of the Target Fund's Assets,
together with a list of portfolio securities of the Target Fund showing the
adjusted tax basis of such securities by lot and the holding periods of such
securities, as of the Closing Date, certified by the Treasurer of the Target
Entity, (ii) the Target Fund Shareholder Documentation, (iii) the
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FIN 48 Workpapers, and (iv) to the extent permitted by applicable law, all
information pertaining to, or necessary or useful in the calculation or
demonstration of, the investment performance of the Target Fund;
(d) The Target Custodian shall have delivered the certificate
contemplated by Sections 3.2(b) of this Agreement, duly executed by an
authorized officer of the Target Custodian;
(e) The Target Entity and the Target Fund shall have performed all of the
covenants and complied with all of the provisions required by this Agreement
to be performed or complied with by the Target Entity and the Target Fund,
on or before the Closing Date;
(f) The Acquiring Entity shall have received a favorable opinion of
Xxxxxxxx Ronon Xxxxxxx & Xxxxx LLP, counsel to the Target Entity, dated the
Closing Date and in a form satisfactory to the Acquiring Entity, to the
following effect:
(i) The Target Entity is duly organized, validly existing and in good
standing under the laws of the State of Delaware and has power to own all of
its properties and assets and to carry on its business as presently conducted
and the Target Fund is a separate series thereof duly constituted in accordance
with the applicable provisions of the 1940 Act and the organizational documents
of the Target Entity;
(ii) This Agreement has been duly authorized, executed and delivered on
behalf of the Target Entity and, assuming the N-14 Registration Statement
complies with applicable federal securities laws and assuming the due
authorization, execution and delivery of this Agreement by all other parties,
is the valid and binding obligation of the Target Entity enforceable against
the Target Entity 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;
(iii) The Target Fund has the power to sell, assign, transfer and
deliver the assets to be transferred by it hereunder, and, upon consummation of
the transactions contemplated hereby, the Target Fund will have duly
transferred such assets to the Acquiring Fund;
(iv) The execution and delivery of this Agreement did not, and the
performance by the Target Entity of its obligations hereunder will not, violate
the Target Entity's organizational documents;
(v) The Target Entity is registered with the Commission as an open-end
management investment company under the 1940 Act, and, to such counsel's
knowledge, its registration with the Commission is in full force and effect;
(vi) Except as disclosed in writing to the Acquiring Entity, such
counsel knows of no material legal proceedings pending against the Target
Entity; and
(vii) To the knowledge of such counsel, no consent, approval,
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authorization or order of any court or governmental authority is required for
the consummation by the Target Entity of the transactions contemplated by this
Agreement except such as have been obtained; and
(g) In connection with the opinion contemplated by Section 7.1(f) of this
Agreement, it is understood that counsel may reasonably rely upon the
representations made in this Agreement as well as certificates of officers
of the Target Entity.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND THE
TARGET FUND
With respect to the Reorganization, if any of the conditions set forth below
have not been satisfied on or before the Closing Date with respect to the
Target Fund or the Acquiring Fund, the Acquiring Entity or Target Entity,
respectively, shall, at its option, not be required to consummate the
transactions contemplated by this Agreement:
8.1. The Agreement shall have been approved by the requisite vote of the
holders of the outstanding shares of the Target Fund in accordance with the
provisions of the Target Entity's Governing Documents, Delaware law, and the
1940 Act. Notwithstanding anything herein to the contrary, neither the Target
Fund nor the Acquiring Fund may waive the condition set forth in this
Section 8.1;
8.2. On the Closing Date, no action, suit or other proceeding shall be
pending or, to the Target Entity's or the Acquiring Entity's knowledge,
threatened before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in connection with,
this Agreement or the transactions contemplated herein;
8.3. All consents of other parties and all other consents, orders and
permits of Federal, state and local regulatory authorities deemed necessary by
the Acquiring Fund or the Target Fund to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of the
Acquiring Fund or the Target Fund, provided that either party hereto may for
itself waive any of such conditions;
8.4. The N-14 Registration Statement shall have become effective under the
1933 Act and no stop orders suspending the effectiveness thereof shall have
been issued and, to the best knowledge of the parties hereto, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or known to be contemplated under the 1933 Act;
8.5. The Target Entity and the Acquiring Entity shall have received on or
before the Closing Date an opinion of Xxxxxx Xxxxx & Bockius LLP in form and
substance reasonably acceptable to the Target Entity and the Acquiring Entity,
as to the matters set forth on Schedule 8.6. In rendering such opinion,
Xxxxxxxx Ronon may request and rely upon representations contained in
certificates of officers of the Target Entity, the Acquiring Entity and others,
and the officers of the Target Entity and the Acquiring Entity shall use their
best efforts to make available such truthful certificates. Notwithstanding
anything herein to the contrary, neither the Target Fund nor the Acquiring Fund
may waive the condition set forth in this Section 8.5; and
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8.6. The Invesco/CIBC Transaction contemplated by the Transaction Agreement
shall have been consummated.
9. FEES AND EXPENSES
9.1. The parties hereto represent and warrant to each other that there are
no brokers or finders entitled to receive any payments in connection with the
transactions provided for herein.
9.2. CIBC and IAI will bear or arrange for an entity under common ownership
of CIBC or IAI to bear the expenses relating to the Reorganization, whether or
not the Reorganization is consummated, allocated among CIBC and Invesco as set
forth in the Transaction Agreement. The costs of the Reorganization shall
include, but not be limited to, costs associated with organizing the Acquiring
Fund, preparation, printing and distribution of the N-14 Registration Statement
for the Reorganization (including the prospectus/proxy statement contained
therein), legal fees, accounting fees, and expenses of soliciting Target Fund
shareholders and holding shareholders' meetings (and adjournments thereof). For
the avoidance of doubt, neither the Acquiring Fund nor the Target Fund will
bear the expenses relating to the Reorganization.
10. COOPERATION AND EXCHANGE OF INFORMATION
Prior to the Closing and for a reasonable time thereafter, the Target Entity
and the Acquiring Entity will provide each other and their respective
representatives with such cooperation, assistance and information as is
reasonably necessary (i) for the filing of any Tax Return, for the preparation
for any audit, and for the prosecution or defense of any claim, suit or
proceeding relating to any proposed adjustment, or (ii) for any financial
accounting purpose. Each such party or their respective agents will retain
until the applicable period for assessment under applicable law (giving effect
to any and all extensions or waivers) has expired all returns, schedules and
work papers and all material records or other documents relating to Tax matters
and financial reporting of tax positions of the Target Fund and the Acquiring
Fund for its taxable period first ending after the Closing of the
Reorganization and for all prior taxable periods for which the statute of
limitation had not run at the time of the Closing, provided that the Target
Entity shall not be required to maintain any such documents that it has
delivered to the Acquiring Fund.
If applicable, the Acquiring Fund shall receive certificates following the
Closing, promptly upon reasonable request, from the principal executive officer
and principal financial officer, or persons performing similar functions, of
the Target Entity to the effect that such principal executive officer and
principal financial officer, or persons performing similar functions, of the
Target Entity have concluded that, based on their evaluation of the
effectiveness of the Target Entity's disclosure controls and procedures (as
defined in Rule 30a-3(c) under the 1940 Act), to the best of their knowledge,
the design and operation of such procedures were effective to provide
reasonable assurance that information provided by the Target Entity to the
Acquiring Entity with respect to the Target Fund's operations prior to the
Closing that is required to be disclosed by the Acquiring Entity on Forms N-CSR
and N-Q.
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11. INDEMNIFICATION
11.1. The Acquiring Entity, out of the assets of the Acquiring Fund, and
SRIC agree, severally and not jointly, to indemnify and hold harmless the
Target Entity and each of the Target Entity's officers and trustees and the
Target Fund from and against any and all losses, claims, damages, liabilities
or expenses (including, without limitation, the payment of reasonable legal
fees and reasonable costs of investigation) to which the Target Entity or any
of its directors/trustees or officers or the Target Fund may become subject,
insofar as such loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on any breach by the Acquiring
Entity, on behalf of the Acquiring Fund, of any of its representations,
warranties, covenants or agreements set forth in this Agreement. This
indemnification obligation shall survive the termination of this Agreement and
the Closing.
11.2. IAI agrees to indemnify and hold harmless the Acquiring Entity and
each of its officers and trustees and the Acquiring Fund from and against any
and all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquiring Entity or any of its trustees or officers
or the Acquiring Fund may become subject, insofar as such loss, claim, damage,
liability or expense (or actions with respect thereto) arises out of or is
based on any breach by the Target Entity, on behalf of the Target Fund, of any
of its representations, warranties, covenants or agreements set forth in this
Agreement. This indemnification obligation shall survive the termination of
this Agreement and the Closing.
12. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES AND COVENANTS
12.1. Except as described in Section 9.2, each party agrees that no party
has made any representation, warranty or covenant not set forth herein and that
this Agreement constitutes the entire agreement between the parties.
12.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder. The covenants to be performed after the Closing shall survive the
Closing.
13. TERMINATION
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned by (i) mutual agreement of the Acquiring Entity and the
Target Entity; or (ii) by either the Acquiring Entity or the Target Entity if
the Closing shall not have occurred on or before March 31, 2014, unless such
date is extended by mutual agreement of the Acquiring Entity and the Target
Entity; (iii) by either the Acquiring Entity or the Target Entity if one or
more other parties shall have materially breached its obligations under this
Agreement or made a material misrepresentation herein or in connection
herewith; (iv) by the Acquiring Entity if any condition precedent to its
obligations set forth herein has not been fulfilled or waived by the Acquiring
Entity; or (v) by the Target Entity if any condition precedent to its
obligations set forth herein has not been fulfilled or waived by the Target
Entity. In the event of any such termination, this Agreement shall become void
and there shall be no liability hereunder on the
- 20 -
part of any party or their respective directors/trustees or officers, except
for (i) any such material breach or intentional misrepresentation or (ii) the
parties' respective obligations under Section 11, as to each of which all
remedies at law or in equity of the party adversely affected shall survive.
14. AMENDMENTS
This Agreement may be amended, modified or supplemented in a writing signed
by the parties hereto to be bound by such Amendment.
15. HEADINGS; GOVERNING LAW; COUNTERPARTS; ASSIGNMENT; LIMITATION OF
LIABILITY; PUBLICITY; SEVERABILITY; EFFECT OF ELECTRONIC DOCUMENTS
15.1. The Article and Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.2. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware and applicable Federal law, without regard to
its principles of conflicts of laws.
15.3. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other parties. 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.
15.4. This agreement may be executed in any number of counterparts, each of
which shall be considered an original.
15.5. It is expressly agreed that the obligations of the parties hereunder
shall not be binding upon any of their respective directors or trustees,
shareholders, nominees, officers, agents, or employees personally, but shall
bind only the property of (a) the applicable Target Fund or the Acquiring Fund
as provided in their respective Governing Documents and (b) the other parties.
The 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 property of such party.
15.6. A copy of the Declaration of Trust of the Acquiring Entity is on file
with the Secretary of the Commonwealth of Massachusetts, and notice is hereby
given that no trustee, officer, agent or employee of the Acquiring Entity shall
have any personal liability under this Agreement, and that insofar as it
relates to any Acquiring Fund, this Agreement is binding only upon the assets
and properties of such Acquiring Fund.
15.7. Any public announcements or similar publicity with respect to this
Agreement or the transactions contemplated herein will be made at such time and
in such manner as the parties mutually shall agree in writing, provided that
nothing herein shall prevent either party from
- 21 -
making such public announcements as may be required by applicable law, as
determined by the disclosing party on the advice of counsel, in which case the
party issuing such statement or communication shall advise the other party
prior to such issuance.
15.8. Whenever possible, each provision and term of this Agreement shall be
interpreted in a manner to be effective and valid, but if any provision or term
of this Agreement is held to be prohibited by law or invalid, then such
provision or term shall be ineffective only in the jurisdiction or
jurisdictions so holding and only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner whatsoever the
remainder of such provision or term or the remaining provisions or terms of
this Agreement.
15.9. A facsimile or electronic (E.G., PDF) signature of an authorized
officer of a party hereto on this Agreement and/or any transfer or closing
document shall have the same effect as if executed in the original by such
officer.
16. CONFIDENTIALITY
Each party will hold, and will cause its board members, officers, employees,
representatives, agents and affiliated persons to hold, in strict confidence,
and not disclose to any other person, and not use in any way except in
connection with the transactions herein contemplated, without the prior written
consent of the disclosing party, all confidential information obtained from the
disclosing party in connection with the transactions contemplated by this
Agreement, except such information may be disclosed: (i) to governmental or
regulatory bodies, and, where necessary, to any other person in connection with
the obtaining of consents or waivers as contemplated by this Agreement; (ii) if
required by court order or decree or applicable law; (iii) if it is publicly
available through no act or failure to act of such party; (iv) if it was
already known to such party on a non-confidential basis on the date of receipt;
(v) during the course of or in connection with any litigation, government
investigation, arbitration, or other proceedings based upon or in connection
with the subject matter of this Agreement, including, without limitation, the
failure of the transactions contemplated hereby to be consummated; or (vi) if
it is otherwise expressly provided for herein.
In the event of a termination of this Agreement, each party agrees that it,
along with its board members, employees, representative agents and affiliated
persons, shall, and shall cause their affiliates to, except with the prior
written consent of the other party, keep secret and retain in strict
confidence, and not use for the benefit of itself or themselves, nor disclose
to any other persons, any and all confidential or proprietary information
relating to the disclosing party and their related parties and affiliates,
whether obtained through their due diligence investigation, this Agreement or
otherwise, except such information may be disclosed: (i) if required by court
order or decree or applicable law; (ii) if it is publicly available through no
act or failure to act of such party; (iii) if it was already known to such
party on a non-confidential basis on the date of receipt; (iv) during the
course of or in connection with any litigation, government investigation,
arbitration, or other proceedings based upon or in connection with the subject
matter of this Agreement, including, without limitation, the failure of the
transactions contemplated hereby to be consummated; or (v) if it is otherwise
expressly provided for herein.
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17. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by
facsimile, personal service or prepaid or certified mail addressed to:
FOR SRIC:
Atlantic Trust Private Wealth Management
Two Peachtree Pointe, Suite 1100
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Fax: 000 000 0000
Attn: Xxxxx XxXxxx, Managing Director and General Counsel
FOR CIBC:
CIBC
000 Xxxxxxxxx Xxx, 0xx xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Achilles Perry, Vice-President, General Counsel (US)
FOR ACQUIRING ENTITY:
The Advisors' Inner Circle Fund
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx, 00000
Attn: Legal Department
FOR IAI:
0000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Attn: General Counsel
FOR TARGET ENTITY:
00 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: General Counsel
- 23 -
WITH A COPY TO:
X. Xxxxxxx Xxxxxxx
Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
[SIGNATURE PAGE FOLLOWS]
- 24 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
approved on behalf of the Acquiring Fund and Target Fund.
INVESCO ADVISERS, INC., solely for AIM EQUITY FUNDS (INVESCO EQUITY
the purposes of Sections 9.2 and 11.2 FUNDS), ON BEHALF OF INVESCO
DISCIPLINED EQUITY FUND
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxx
-------------------------------- --------------------------------
Name: Xxxx X. Xxxx Name: Xxxx X. Xxxx
Title: Senior Vice President Title: Senior Vice President
XXXXX XXX INVESTMENT COUNSEL, INC., THE ADVISORS' INNER CIRCLE FUNDS, ON
solely for the purposes of Section BEHALF OF AT DISCIPLINED EQUITY FUND
11.1
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxxxxx
Title: CAO Title: President
CIBC, solely for purposes of
Section 9.2
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxx
Title: VP & Associate GC
- 25 -
SCHEDULE 8.6
TAX OPINIONS
(i) The acquisition by the Acquiring Fund of all of the assets of the Target
Fund, as provided for in the Agreement, in exchange for Acquiring Fund shares
and the assumption by the Acquiring Fund of all of the liabilities of the
Target Fund, followed by the distribution by the Target Fund to its
shareholders of the Acquiring Fund shares in complete liquidation of the Target
Fund, will qualify as a reorganization within the meaning of
Section 368(a)(1)(F) of the Code, and the Target Fund and the Acquiring Fund
each will be a "party to the reorganization" within the meaning of
Section 368(b) of the Code.
(ii) No gain or loss will be recognized by the Target Fund upon the transfer
of all of its assets to, and assumption of all of its liabilities by, the
Acquiring Fund in exchange solely for Acquiring Fund shares pursuant to
Section 361(a) and Section 357(a) of the Code.
(iii) No gain or loss will be recognized by the Acquiring Fund upon the
receipt by it of all of the assets of the Target Fund in exchange solely for
the assumption of all of the liabilities of the Target Fund and issuance of the
Acquiring Fund shares pursuant to Section 1032(a) of the Code.
(iv) No gain or loss will be recognized by the Target Fund upon the
distribution of the Acquiring Fund shares by the Target Fund to its
shareholders in complete liquidation (in pursuance of the Agreement) pursuant
to Section 361(c)(1) of the Code.
(v) The tax basis of the assets of the Target Fund received by the Acquiring
Fund will be the same as the tax basis of such assets in the hands of the
Target Fund immediately prior to the transfer pursuant to Section 362(b) of the
Code.
(vi) The holding periods of the assets of the Target Fund in the hands of
the Acquiring Fund will include the periods during which such assets were held
by the Target Fund pursuant to Section 1223(2) of the Code.
(vii) No gain or loss will be recognized by the shareholders of the Target
Fund upon the exchange of all of their Target Fund shares for the Acquiring
Fund shares (including fractional shares to which they may be entitled)
pursuant to Section 354(a) of the Code.
(viii) The aggregate tax basis of the Acquiring Fund shares received by a
shareholder of the Target Fund (including fractional shares to which they may
be entitled) will be the same as the aggregate tax basis of the Target Fund
shares exchanged therefor pursuant to Section 358(a)(1) of the Code.
(ix) The holding period of the Acquiring Fund shares received by a
shareholder of the Target Fund (including fractional shares to which they may
be entitled) will include the holding period of the Target Fund shares
exchanged therefor, provided that the shareholder held the Target Fund shares
as a capital asset on the date of the exchange pursuant to Section 1223(1) of
the Code.
(x) The Acquiring Fund will succeed to and take into account the items of
the Target Fund described in Section 381(c) of the Code.
The foregoing opinion may state that no opinion is expressed as to the
effect of the Reorganization on a Target Fund, Acquiring Fund or any Target
Fund Shareholder with respect to any asset as to which unrealized gain or loss
is required to be recognized for federal income tax purposes at the end of a
taxable year (or on the termination or transfer thereof) under a xxxx-to-market
system of accounting.
