AGREEMENT AND PLAN OF
REORGANIZATION
THIS AGREEMENT AND PLAN OF
REORGANIZATION ("Agreement") is made as of this 7th
day of June, 2010, by and among Xxxxx Xxxxx Growth Trust
(the "Trust"), a Massachusetts business trust, on behalf of its
series Xxxxx Xxxxx Global Growth Fund ("Global Growth
Fund") and Xxxxx Xxxxx Multi-Cap Growth Fund ("Multi-Cap
Growth Fund") and Global Growth Portfolio, Global Growth
Fund's master portfolio and Multi-Cap Growth Portfolio,
Multi-Cap Fund's master portfolio.
WITNESSETH
WHEREAS, the Trust is registered under the
Investment Company Act of 1940, as amended (the "1940
Act") as an open-end management investment company
authorized to issue an unlimited number of shares of
beneficial interest without par value in one or more series
(such as Global Growth Fund and Multi-Cap Growth Fund),
and the Trustees of the Trust have divided the shares of
Global Growth Fund into Class A, Class B and Class C
shares ("Global Growth Fund Shares") and Multi-Cap
Growth Fund into Class A, Class B and Class C shares
("Multi-Cap Growth Fund Shares");
WHEREAS, the Trust desires to provide for the
reorganization of Global Growth Fund through the
acquisition by Multi-Cap Growth Fund of substantially all of
the assets of Global Growth Fund in exchange for Multi-Cap
Growth Fund Shares in the manner set forth herein;
WHEREAS, Global Growth Fund currently invests
all of its assets in Global Growth Portfolio, a Massachusetts
trust registered under the 1940 Act as an open-end
management investment company which is proposed to be
dissolved upon consummation of the reorganization
contemplated herein, and Multi-Cap Growth Fund currently
invests all of its assets in Multi-Cap Growth Portfolio, a
Massachusetts trust registered under the 1940 Act as an
open-end management investment company;
WHEREAS, 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 (the "Code");
NOW, THEREFORE, in consideration of the
mutual promises herein contained, the parties hereto agree
as follows:
1. Definitions
1.1 The term "1933 Act" shall mean the
Securities Act of 1933, as amended.
1.2 The term "1934 Act" shall mean the
Securities Exchange Act of 1934, as amended.
1.3 The term "Agreement" shall mean this
Agreement and Plan of Reorganization.
1.4 The term "Assumed Liabilities" shall
mean all liabilities, expenses, costs,
charges and receivables of Global
Growth Fund as of the Close of Trading
on the New York Stock Exchange on the
Valuation Date.
1.5 The term "Business Day" shall mean any
day that the New York Stock Exchange
is open.
1.6 The term "Close of Trading on the
NYSE" shall mean the close of regular
trading on the New York Stock
Exchange, which is usually 4:00 p.m.
Eastern time.
1.7 The term "Closing" shall mean the
closing of the transaction contemplated
by this Agreement.
1.8 The term "Closing Date" shall mean
November 5, 2010, provided all
necessary approvals have been
received, or such other date as may be
agreed by the parties on which the
Closing is to take place.
1.9 The term "Commission" shall mean the
Securities and Exchange Commission.
1.10 The term "Custodian" shall mean State
Street Bank and Trust Company.
1.11 The term "Delivery Date" shall mean the
date contemplated by Section 3.3 of this
Agreement.
1.12 The term "Trust N-14" shall mean the
Trust's registration statement on Form
N-14, including a Proxy
Statement/Prospectus as may be
amended, that describes the
transactions contemplated by this
Agreement and registers the Multi-Cap
Growth Fund Shares to be issued in
connection with this transaction.
1.13 The term "Global Growth Fund N-1A"
shall mean the registration
statement, as amended, on Form N-1A
of the Trust with respect to Global
Growth Fund in effect on the date
hereof or on the Closing Date, as the
context may require.
1.14 The term "NYSE" shall mean the New
York Stock Exchange.
1.15 The term "Portfolio N-1As" shall mean
the registration statement, as amended,
on Form N-1A of the Portfolios in effect
on the date hereof or on the Closing
Date, as the context may require.
1.16 The term "Proxy Statement" shall mean
the Proxy Statement/Prospectus
furnished to the Global Growth Fund
shareholders in connection with this
transaction.
1.17 The term "Securities List" shall mean the
list of those securities and other assets
owned by the Trust, on behalf of Global
Growth Fund, on the Delivery Date.
1.18 The term "Multi-Cap Growth Fund N-
1A" shall mean the registration
statement, as amended, on Form N-1A
of the Trust with respect to Multi-Cap
Growth Fund in effect on the date
hereof or on the Closing Date, as the
context may require.
1.19 The term "Valuation Date" shall mean
the day of the Closing Date.
2. Transfer and Exchange of Assets
2.1 Reorganization of Global Growth Fund.
At the Closing, subject to the requisite
approval of the Global Growth Fund's
shareholders and the terms and
conditions set forth herein, the Trust
shall transfer all of the assets of Global
Growth Fund and assign all Assumed
Liabilities to Multi-Cap Growth Fund,
and Multi-Cap Growth Fund shall
acquire such assets and shall assume
such Assumed Liabilities upon delivery
by Multi-Cap Growth Fund to Global
Growth Fund on the Closing Date of
Class A, Class B and Class C Multi-Cap
Growth Fund Shares (including, if
applicable, fractional shares) having an
aggregate net asset value equal to the
value of the assets so transferred,
assigned and delivered, less the
Assumed Liabilities, all determined and
adjusted as provided in Section 2.2.
Upon delivery of the assets, Multi-Cap
Growth Fund will receive good and
marketable title thereto free and clear of
all liens.
2.2 Computation of Net Asset Value. The
net asset value per share of the Multi-
Cap Growth Fund Shares and the net
value of the assets of Global Growth
Fund subject to this Agreement shall, in
each case, be determined as of the
Close of Trading on the NYSE on the
Valuation Date, after the declaration and
payment of any dividend on that date.
The net asset value of the Multi-Cap
Growth Fund Shares shall be computed
in the manner set forth in the Multi-Cap
Growth Fund Form N-1A. In
determining the value of the securities
transferred by Global Growth Fund to
Multi-Cap Growth Fund, such assets
shall be priced in accordance with the
policies and procedures described in the
Multi-Cap Growth Fund N-1A.
3. Closing Date, Valuation Date and Delivery
3.1 Closing Date. The Closing shall be at
the offices of Xxxxx Xxxxx Management,
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX
00000 immediately prior to the opening
of Xxxxx Xxxxx'x business on the
Closing Date. All acts taking place at
Closing shall be deemed to take place
simultaneously as of 9:00 a.m. Eastern
time on the Closing Date unless
otherwise agreed in writing by the
parties.
3.2 Valuation Date. Pursuant to Section 2.2,
the net value of the assets of Global
Growth Fund and the net asset value
per share of Multi-Cap Growth Fund
shall be determined as of the Close of
Trading on the NYSE on the Valuation
Date, after the declaration and payment
of any dividend on that date. The stock
transfer books of the Trust with respect
to Global Growth Fund will be
permanently closed, and sales of Global
Growth Fund Shares shall be
suspended, as of the close of business
of the Trust on the Valuation Date.
Redemption requests thereafter
received by the Trust with respect to
Global Growth Fund shall be deemed to
be redemption requests for Multi-Cap
Growth Fund Shares to be distributed to
shareholders of Global Growth Fund
under this Agreement provided that the
transactions contemplated by this
Agreement are consummated.
In the event that trading on the NYSE or
on another exchange or market on
which securities held by the Global
Growth Fund are traded shall be
disrupted on the Valuation Date so that,
in the judgment of the Trust, accurate
appraisal of the net assets of Global
Growth Fund to be transferred
hereunder or the assets of Multi-Cap
Growth Fund is impracticable, the
Valuation Date shall be postponed until
the first Business Day after the day on
which trading on such exchange or in
such market shall, in the judgment of the
Trust, have been resumed without
disruption. In such event, the Closing
Date shall be postponed until one
Business Day after the Valuation Date.
3.3 Delivery of Assets. After the close of
business on the Valuation Date, the
Trust shall issue instructions providing
for the delivery of all of its assets held on
behalf of Global Growth Fund to the
Custodian to be held for the account of
Multi-Cap Growth Fund, effective as of
the Closing. Multi-Cap Growth Fund
may inspect such securities at the offices
of the Custodian prior to the Valuation
Date.
4. Global Growth Fund Distributions and Termination
4.1 As soon as reasonably practicable after
the Closing Date, the Trust shall pay or
make provisions for the payment of all of
the debts and taxes of Global Growth
Fund and distribute all remaining assets,
if any, to shareholders of Global Growth
Fund, and Global Growth Fund shall
thereafter be terminated under
Massachusetts law.
At, or as soon as may be practicable
following the Closing Date, the Trust on
behalf of Global Growth Fund shall
distribute the Class A, Class B and Class
C Multi-Cap Growth Fund Shares it
received from the Multi-Cap Growth
Fund to the shareholders of the Global
Growth Fund and shall instruct Multi-
Cap Growth Fund as to the amount of
the pro rata interest of each of Global
Growth Fund's shareholders as of the
close of business on the Valuation Date
(such shareholders to be certified as
such by the transfer agent for the
Trust), to be registered on the books of
Multi-Cap Growth Fund, in full and
fractional Multi-Cap Growth Fund
Shares, in the name of each such
shareholder, and Multi-Cap Growth
Fund agrees promptly to transfer the
Multi-Cap Growth Fund Shares then
credited to the account of Global Growth
Fund on the books of Multi-Cap Growth
Fund to open accounts on the share
records of Multi-Cap Growth Fund in the
names of Global Growth Fund
shareholders in accordance with said
instruction. Each Global Growth Fund
shareholder shall receive shares of the
corresponding class of Multi-Cap
Growth Fund to the class of Global
Growth Fund held by such shareholder.
All issued and outstanding Global
Growth Fund Shares shall thereupon be
canceled on the books of the Trust.
Multi-Cap Growth Fund shall have no
obligation to inquire as to the
correctness of any such instruction, but
shall, in each case, assume that such
instruction is valid, proper and correct.
5. Global Growth Fund Securities
On the Delivery Date, Global Growth Portfolio on
behalf of Global Growth Fund shall deliver the
Securities List and tax records. Such records shall
be made available to Multi-Cap Growth Fund prior
to the Closing Date for inspection by the Treasurer
(or his or her designee). Notwithstanding the
foregoing, it is expressly understood that Global
Growth Fund may hereafter until the close of
business on the Valuation Date sell any securities
owned by it in the ordinary course of its business
as a series of an open-end, management
investment company.
6. Liabilities and Expenses
Multi-Cap Growth Fund shall acquire all liabilities of
Global Growth Fund, whether known or unknown,
or contingent or determined. The Trust will
discharge all known liabilities of Global Growth
Fund, so far as may be possible, prior to the
Closing Date. Global Growth Fund shall bear the
expenses of carrying out this Agreement.
7. Global Growth Portfolio and Multi-Cap Growth
Portfolio Representations and Warranties
Each Portfolio hereby represents, warrants and
agrees as follows:
7.1 Legal Existence. Global Growth
Portfolio and Multi-Cap Growth Portfolio
are trusts duly organized and validly
existing under the laws of the State of
Massachusetts.
7.2 Registration under 1940 Act. Global
Growth Portfolio and Multi-Cap Growth
Portfolio are duly registered with the
Commission as a closed-end investment
company under the 1940 Act and such
registration is in full force and effect.
7.3 Financial Statements. The statement of
assets and liabilities, schedule of
portfolio investments and related
statements of operations and changes in
net assets of Global Growth Portfolio
and Multi-Cap Growth Portfolio dated
August 31, 2009 and February 28, 2010
fairly present its financial condition as of
said date in conformity with generally
accepted accounting principles.
7.4 No Material Events. There are no legal,
administrative or other proceedings
pending, or to its knowledge, threatened
against Global Growth Portfolio and
Multi-Cap Growth Portfolio that would
materially affect its financial condition.
7.5 Requisite Approvals. The execution and
delivery of this Agreement and the
consummation of the transactions
contemplated herein have been
authorized by the Portfolio's Board of
Trustees by vote taken at a meeting of
such Board duly called and held on June
7, 2010.
7.6 No Material Violations. Global Growth
Portfolio and Multi-Cap Growth Portfolio
are not, and the execution, delivery and
performance of this Agreement will not
result, in a material violation of any
provision of its Declaration of Trust or
By-Laws, as each may be amended, of
Global Growth Portfolio and Multi-Cap
Growth Portfolio or of any agreement,
indenture, instrument, contract, lease or
other undertaking to which it is a party
or by which it is bound.
7.7 Taxes and Related Filings. Except
where failure to do so would not have a
material adverse effect on Global
Growth Portfolio and Multi-Cap Growth
Portfolio, Global Growth Portfolio and
Multi-Cap Growth Portfolio have filed
and will file or obtain valid extensions of
filing dates for all required federal, state
and local tax returns and reports for all
taxable years through and including its
current taxable year and no such filings
or reports are currently being audited or
contested by the Internal Revenue
Service or state or local taxing authority
and all federal, state and local income,
franchise, property, sales, employment
or other taxes or penalties payable have
been paid or will be paid, so far as due.
Global Growth Portfolio and Multi-Cap
Growth Portfolio are classified as
partnerships for federal tax purposes,
have qualified as such for each taxable
year of its operations, and will qualify as
such as of the Closing Date.
7.8 Good and Marketable Title. On the
Closing Date, Global Growth Portfolio
and Multi-Cap Growth Portfolio are will
have good and marketable title to its
assets, free and clear of all liens,
mortgages, pledges, encumbrances,
charges, claims and equities
whatsoever, except as provided in the
Portfolio N-1As.
7.9 Books and Records. Global Growth
Portfolio and Multi-Cap Growth Portfolio
has maintained all records required
under Section 31 of the 1940 Act and
rules thereunder.
8. Trust Representations and Warranties
Growth Trust, on behalf of the Funds, hereby
represents, warrants and agrees as follows:
8.1 Legal Existence. Growth Trust and
Growth Trust are each a business trust
duly organized and validly existing under
the laws of the Commonwealth of
Massachusetts. Global Growth Fund
and Multi-Cap Growth Fund are validly
existing series of Growth Trust. The
Trust is authorized to issue an unlimited
number of shares of beneficial interest
of Multi-Cap Growth Fund.
8.2 Registration under 1940 Act. The Trust
is a duly registered as open-end
management investment companies
under the 1940 Act and such registration
is in full force and effect.
8.3 Financial Statements. The statement of
assets and liabilities and the schedule of
portfolio investments and the related
statements of operations and changes in
net assets of Global Growth Fund and
Multi-Cap Growth Fund dated August
31, 2009 and February 28, 2010, fairly
present the financial condition of Global
Growth Fund and Multi-Cap Growth
Fund as of said dates in conformity with
generally accepted accounting
principles.
8.4 No Contingent Liabilities. There are no
known contingent liabilities of Global
Growth Fund or Multi-Cap Growth Fund
not disclosed and there are no legal,
administrative or other proceedings
pending, or to the knowledge of the
Trust threatened, against Global Growth
Fund or Multi-Cap Growth Fund which
would materially affect its financial
condition.
8.5 Requisite Approvals. The execution and
delivery of this Agreement and the
consummation of the transactions
contemplated herein, have been
authorized by the Board of Trustees of
the Trust by vote taken at a meeting of
such Board duly called and held on June
7, 2010. No approval of the
shareholders of Multi-Cap Growth Fund
is required in connection with this
Agreement or the transaction
contemplated hereby. The Agreement
has been executed and delivered by a
duly authorized officer of the Trust and
is a valid and legally binding obligation of
each of Global Growth Fund and Multi-
Cap Growth Fund enforceable in
accordance with its terms.
8.6 No Material Violations. The Trust is not,
and the execution, delivery and
performance of this Agreement will not
result, in a material violation of any
provision of its Declaration of Trust or
By-Laws, as may be amended, of
Growth Trust or of any agreement,
indenture, instrument, contract, lease or
other undertaking to which the Trust is a
party or by which it is bound.
8.7 Taxes and Related Filings. Except
where failure to do so would not have a
material adverse effect on Global
Growth Fund or Multi-Cap Growth
Fund, each of Global Growth Fund and
Multi-Cap Growth Fund has filed or will
file or obtain valid extensions of filing
dates for all required federal, state and
local tax returns and reports for all
taxable years through and including its
current taxable year and no such filings
are currently being audited or contested
by the Internal Revenue Service or state
or local taxing authority and all federal,
state and local income, franchise,
property, sales, employment or other
taxes or penalties payable pursuant to
such returns have been paid or will be
paid, so far as due. Each of Global
Growth Fund and Multi-Cap Growth
Fund has elected to be treated as a
"regulated investment company" for
federal tax purposes, has qualified as
such for each taxable year of its
operations and will qualify as such as of
the Closing Date.
8.8 Good and Marketable Title. On the
Closing Date, Global Growth Fund will
have good and marketable title to its
assets, free and clear of all liens,
mortgages, pledges, encumbrances,
charges, claims and equities
whatsoever, and full right, power and
authority to sell, assign, transfer and
deliver such assets and shall deliver
such assets to Multi-Cap Growth Fund.
Upon delivery of such assets, Multi-Cap
Growth Fund will receive good and
marketable title to such assets, free and
clear of all liens, mortgages, pledges,
encumbrances, charges, claims and
equities, except as to adverse claims
under Article 8 of the Uniform
Commercial Code of which Multi-Cap
Growth Fund has notice and necessary
documentation at or prior to the time of
delivery.
8.9 Multi-Cap Growth Fund N-1A Not
Misleading. The Multi-Cap Growth
Fund N-1A conforms on the date of the
Agreement, and will conform on the
date of the Proxy Statement and the
Closing Date, in all material respects to
the applicable requirements of the 1933
Act and the 1940 Act and the rules and
regulations of the Commission
thereunder and does not include any
untrue statement of a material fact or
omit to state any material fact required
to be stated therein or necessary to
make the statements therein, in light of
the circumstances under which they
were made, not materially misleading.
8.10 Proxy Statement. The Proxy Statement
delivered to the Global Growth Fund
shareholders in connection with this
transaction (both at the time of delivery
to such shareholders in connection with
the meeting of shareholders and at all
times subsequent thereto and including
the Closing Date) in all material
respects, conforms to the applicable
requirements of the 1934 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
thereon or necessary to make
statements therein, in light of the
circumstances under which they were
made, not materially misleading.
8.11 Books and Records. Each of Global
Growth Fund and Multi-Cap Growth
Fund has maintained all records
required under Section 31 of the 1940
Act and rules thereunder.
9. Conditions Precedent to Closing
The obligations of the parties hereto shall be
conditioned on the following:
9.1 Representations and Warranties. The
representations and warranties of the
parties made herein will be true and
correct as of the date of this Agreement
and on the Closing Date.
9.2 Shareholder Approval. The Agreement
and the transactions contemplated
herein shall have been approved by the
requisite vote of the holders of Global
Growth Fund Shares in accordance with
the 1940 Act and the Declaration of
Trust and By-Laws, each as amended,
of the Trust.
9.3 Pending or Threatened Proceedings.
On the Closing Date, no action, suit or
other proceeding shall be threatened or
pending before any court or
governmental agency in which it is
sought to restrain or prohibit, or obtain
damages or other relief in connection
with, this Agreement or the transactions
contemplated herein.
9.4 Registration Statement. The Trust N-14
shall have become effective under the
1933 Act; no stop orders suspending the
effectiveness of such Trust N-14 shall
have been issued; and, to the best
knowledge of the parties hereto, no
investigation or proceeding for that
purpose shall have been instituted or be
pending, threatened or contemplated
under the 1933 Act. The Proxy
Statement has been delivered to each
shareholder of record of the Global
Growth Fund as of August 19, 2010 in
accordance with the provisions of the
1934 Act and the rules thereunder.
9.5 Declaration of Dividend. The Trust shall
have declared a dividend or dividends
which, together with all previous such
dividends, shall have the effect of
distributing to Global Growth Fund
shareholders all of Global Growth
Fund's investment company taxable
income (as defined in Section 852 of the
Code) (computed without regard to any
deduction for dividends paid) for the final
taxable period of Global Growth Fund,
all of its net capital gain realized in the
final taxable period of Global Growth
Fund (after reduction for any capital loss
carryforward) and all of the excess of (i)
its interest income excludable from gross
income under Section 103(a) of the
Code over (ii) its deductions disallowed
under Sections 265 and 171(a)(2) of the
Code for the final taxable period of
Global Growth Fund.
9.6 State Securities Laws. The parties shall
have received all permits and other
authorizations necessary, if any, under
state securities laws to consummate the
transactions contemplated herein.
9.7 Performance of Covenants. Each party
shall have performed and complied in all
material respects with each of the
agreements and covenants required by
this Agreement to be performed or
complied with by each such party prior
to or at the Valuation Date and the
Closing Date.
9.8 Due Diligence. Multi-Cap Growth Fund
and Multi-Cap Growth Portfolio shall
have had reasonable opportunity to
have its officers and agents review the
records of Global Growth Fund and
Global Growth Portfolio.
9.9 No Material Adverse Change. From the
date of this Agreement, through the
Closing Date, there shall not have been:
* any change in the business,
results of operations, assets
or financial condition or the
manner of conducting the
business of Global Growth
Fund or Multi-Cap Growth
Fund (other than changes in
the ordinary course of its
business, including, without
limitation, dividends and
distributions in the ordinary
course and changes in the net
asset value per share) which
has had a material adverse
effect on such business,
results of operations, assets
or financial condition, except in
all instances as set forth in the
financial statements;
* any loss (whether or not
covered by insurance)
suffered by Global Growth
Fund or Multi-Cap Growth
Fund materially and adversely
affecting of Global Growth
Fund or Multi-Cap Growth
Fund, other than depreciation
of securities;
* issued by the Trust to any person any
option to purchase or other
right to acquire shares of any
class of Global Growth Fund
or Multi-Cap Growth Fund
Shares (other than in the
ordinary course of Growth
Trust's business as an open-
end management investment
company);
* any indebtedness incurred by
Global Growth Fund or Multi-
Cap Growth Fund for
borrowed money or any
commitment to borrow money
entered into by Global Growth
Fund or Multi-Cap Growth
Fund except as permitted in
Global Growth Fund N-1A or
Multi-Cap Growth Fund N-1A
and disclosed in financial
statements required to be
provided under this
Agreement;
* any amendment to the
Declaration of Trust or By-
Laws of the Trust that will
adversely affect the ability of
the Trust to comply with the
terms of this Agreement; or
* any grant or imposition of any
lien, claim, charge or
encumbrance upon any asset
of Global Growth Fund except
as provided in Global Growth
Fund N-1A so long as it will
not prevent the Trust from
complying with Section 7.8.
9.10 Lawful Sale of Shares. On the Closing
Date, Multi-Cap Growth Fund Shares to
be issued pursuant to Section 2.1 of this
Agreement will be duly authorized, duly
and validly issued and outstanding, and
fully paid and non-assessable by the
Trust, and conform in all substantial
respects to the description thereof
contained in the Trust N-14 and Proxy
Statement furnished to the Global
Growth Fund shareholders and the
Multi-Cap Growth Fund Shares to be
issued pursuant to paragraph 2.1 of this
Agreement will be duly registered under
the 1933 Act by the Trust N-14 and will
be offered and sold in compliance with
all applicable state securities laws.
9.11 Documentation and Other Actions. The
Trust shall have executed such
documents and shall have taken such
other actions, if any, as reasonably
requested to fully effectuate the
transactions contemplated hereby.
10. Addresses
All notices required or permitted to be given under
this Agreement shall be given in writing to Xxxxx
Xxxxx Growth Trust, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, XX 00000 (Attention: Chief Legal
Officer), or at such other place as shall be
specified in written notice given by either party to
the other party to this Agreement and shall be
validly given if mailed by first-class mail, postage
prepaid.
11. Termination
This Agreement may be terminated by either party
upon the giving of written notice to the other, if any
of the representations, warranties or conditions
specified in Sections 7 or 8 hereof have not been
performed or do not exist on or before December
31, 2010. In the event of termination of this
Agreement pursuant to this provision, neither party
(nor its officers, Trustees or shareholders) shall
have any liability to the other.
12. Miscellaneous
This Agreement shall be governed by, construed
and enforced in accordance with the laws of the
Commonwealth of Massachusetts. The Trust
represents that there are no brokers or finders
entitled to receive any payments in connection with
the transactions provided for herein. The Trust
represents that this Agreement constitutes the
entire agreement between the parties as to the
subject matter hereof. The representations,
warranties and covenants contained in this
Agreement or in any document delivered pursuant
hereto or in connection herewith shall not survive
the consummation of the transactions
contemplated hereunder. The 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. This
Agreement shall be executed in any number of
counterparts, each of which shall be deemed an
original. Whenever used herein, the use of any
gender shall include all genders. In the event that
any provision of this Agreement is unenforceable
at law or in equity, the remainder of the Agreement
shall remain in full force and effect.
13. Amendments
At any time prior to or after approval of this
Agreement by Global Growth Fund shareholders
(i) the parties hereto may, by written agreement
and without shareholder approval, amend any of
the provisions of this Agreement, and (ii) either
party may waive without such approval any default
by the other party or the failure to satisfy any of
the conditions to its obligations (such waiver to be
in writing); provided, however, that following
shareholder approval, no such amendment may
have the effect of changing the provisions for
determining the number of Multi-Cap Growth
Fund Shares to be received by Global Growth
Fund shareholders under this Agreement to the
detriment of such shareholders without their
further approval. The failure of a party hereto to
enforce at any time any of the provisions of this
Agreement shall in no way be construed to be a
waiver of any such provision, nor in any way to
affect the validity of this Agreement or any part
hereof or the right of any party thereafter to
enforce each and every such provision. No waiver
of any breach of this Agreement shall be held to be
a waiver of any other or subsequent breach.
14. Massachusetts Business Trust
References in this Agreement to the Trust mean
and refer to the Trustees from time to time serving
under its Declarations of Trust on file with the
Secretary of the Commonwealth of
Massachusetts, as the same may be amended
from time to time, pursuant to which they conduct
their businesses. It is expressly agreed that the
obligations of the Trust hereunder shall not be
binding upon any of the trustees, shareholders,
nominees, officers, agents or employees of the
Trust personally, but bind only the trust property of
the Trust as provided in said Declaration of Trust.
The execution and delivery of this Agreement has
been authorized by the respective trustees and
signed by an authorized officer of the Trust, acting
as such, and neither such authorization by such
trustees nor such execution and delivery by such
officer shall be deemed to have been made by any
of them but shall bind only the trust property of the
Trust as provided in such Declaration of Trust. No
series of the Trust shall be liable for the obligations
of any other series.
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed by their
officers thereunto duly authorized, as of the day and year
first above written.
ATTEST:
XXXXX XXXXX GROWTH TRUST
/s/Xxxxxxx X. Gemma
By: /s/Xxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Gemma, Secretary
Xxxxxx X. Xxxxxxxxxx, Vice President
GLOBAL GROWTH PORTFOLIO
/s/Xxxxxxx X. Gemma
By: /s/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Gemma, Secretary
Xxxxxxx X. Xxxxxxxx, Treasurer
(For purposes of Section 7 only)
MULTI-CAP GROWTH PORTFOLIO
/s/Xxxxxxx X. Gemma
By: /s/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Gemma, Secretary
Xxxxxxx X. Xxxxxxxx, Treasurer
(For purposes of Section 7 only)
