X.X. XXXXXX INSTITUTIONAL FUNDS
X.X. XXXXXX MUTUAL FUND GROUP
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION
("Agreement") is made as of this 22nd day of November,
2004, by and between X.X. Xxxxxx Institutional Funds,
a Massachusetts business trust ("Acquiring Fund Trust"),
with its principal place of business at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, on behalf of its series,
JPMorgan Global Strategic Income Fund ("Acquiring Fund"),
and X.X. Xxxxxx Mutual Fund Group, a Massachusetts
business trust ("Acquired Fund Trust"), with its principal
place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 on behalf of its series, JPMorgan Strategic
Income Fund ("Acquired Fund").
WHEREAS, each of the Acquired Fund and the Acquiring
Fund is a series of an open-end, investment company
of the management type registered pursuant to the
Investment Company Act of 1940 ("1940 Act");
WHEREAS, this Agreement is intended to be and
is adopted as a plan of reorganization and liquidation
within the meaning of Section 368(a)(1) of the United
States Internal Revenue Code of 1986, as amended ("Code");
WHEREAS, the contemplated reorganization and liquidation
will consist of (1) the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the
Acquired Fund to the Acquiring Fund in exchange solely
for classes of shares of beneficial interest of the Acquiring
Fund ("Acquiring Fund Shares") corresponding to the
classes of outstanding shares of beneficial interest
of the Acquired Fund ("Acquired Fund Shares"), as
described herein, (2) the assumption by the Acquiring Fund
of all liabilities of the Acquired Fund, and (3) the
distribution of the Acquiring Fund Shares to the
shareholders of the Acquired Fund in complete liquidation
of the Acquired Fund, as provided herein ("Reorganization"),
all upon the terms and conditions hereinafter set forth in this
Agreement;
WHEREAS, the Acquired Fund currently owns
securities that are substantially similar to the those in
which the Acquiring Fund is permitted to invest;
WHEREAS, the Trustees of Acquiring Fund Trust have
determined, with respect to the Acquiring Fund,
that the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the Acquired
Fund for Acquiring Fund Shares and the assumption
of all liabilities of the Acquired Fund by the Acquiring
Fund is in the best interests of the Acquiring Fund
and that the interests of the existing shareholders of
the Acquiring Fund would not be diluted as a result of
this transaction; and
WHEREAS, the Trustees of Acquired Fund Trust have
determined, with respect to the Acquired Fund,
that the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the Acquired
Fund for Acquiring Fund Shares and the assumption
of all liabilities of the Acquired Fund by the Acquiring
Fund is in the best interests of the Acquired Fund
and that the interests of the existing shareholders of the
Acquired Fund would not be diluted as a result of this
transaction;
NOW, THEREFORE, in consideration of the premises
and of the covenants and agreements hereinafter
set forth, the parties hereto covenant and agree as follows:
TRANSFER OF ASSETS OF THE ACQUIRED
FUND TO THE ACQUIRING FUND IN EXCHANGE
FOR ACQUIRING FUND SHARES, THE ASSUMPTION
OF ALL ACQUIRED FUND LIABILITIES AND THE
LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to requisite approvals and the other
terms and conditions herein set forth and on the basis
of the representations and warranties contained herein,
Acquired Fund Trust, on behalf of the Acquired Fund,
agrees to sell, assign, convey, transfer and deliver all
of its property and assets, as set forth in paragraph
1.2, to the Acquiring Fund, and Acquiring Fund Trust,
on behalf of the Acquiring Fund, agrees in exchange
therefor: (a) to deliver to the Acquired Fund the number
of full and fractional Acquiring Fund Shares corresponding
to each class of the Acquired Fund Shares as of the time
and date set forth in paragraph 3.1, determined by
dividing the value of the Acquired Fund's net assets
with respect to each class of the Acquired Fund (computed
in the manner and as of the time and date set forth in
paragraph 2.1) by the net asset value of one share of the
corresponding class of Acquiring Fund Shares (computed
in the manner and as of the time and date set forth in
paragraph 2.2); and (b) to assume all liabilities of the
Acquired Fund, as set forth in paragraph 1.3. Such
transactions shall take place on the date of the closing
provided for in paragraph 3.1 ("Closing Date"). For
purposes of this Agreement, the Class A shares of
the Acquired Fund correspond to the Class A shares
of the Acquiring Fund, the Class B shares of the Acquired
Fund correspond to the Class B shares of the Acquiring
Fund, the Class C shares of the Acquired Fund
correspond to the Class C shares of the Acquiring
Fund, the Class M shares of the Acquired Fund correspond
to the Class M shares of the Acquiring Fund, the Select
Class shares of the Acquired Fund correspond to the Select
Class shares of the Acquiring Fund, and the term Acquiring
Fund Shares should be read to include each such class of
shares of the Acquiring Fund.
1.2. The property and assets of Acquired Fund Trust
attributable to the Acquired Fund and to be
sold, assigned, conveyed, transferred and delivered to and
acquired by Acquiring Fund Trust, on behalf of the
Acquiring Fund, shall consist of all assets and property,
including, without limitation, all rights, cash, securities,
commodities and futures interests and dividends or interests
receivable that are owned by the Acquired Fund and any
deferred or prepaid expenses shown as an asset on the books
of the Acquired Fund on the Valuation Date as defined in
paragraph 2.1 (collectively, "Assets"). The Acquired Fund
will sell, assign, convey, transfer and deliver to the
Acquiring Fund any rights, stock dividends, or other
securities received by the Acquired Fund after the Closing
Date as stock dividends or other distributions on or with
respect to the property and assets transferred, which
rights, stock dividends, and other securities shall be deemed
included in the property and assets transferred to the
Acquiring Fund at the Closing Date and shall not be
separately valued, in which case any such distribution
that remains unpaid as of the Closing Date shall be
included in the determination of the value of the assets
of the Acquired Fund acquired by the Acquiring Fund.
1.3. The Acquired Fund will make reasonable
efforts to discharge all of its known liabilities and
obligations prior to the Valuation Date. Acquiring Fund
Trust, on behalf of the Acquiring Fund, shall assume
all of the liabilities of the Acquired Fund, whether
accrued or contingent, known or unknown, existing
at the Valuation Date (collectively, "Liabilities"). On
or as soon as practicable prior to the Closing Date,
the Acquired Fund will declare and pay to its
shareholders of record one or more dividends and/or
other distributions so that it will have distributed
substantially all (and in no event less than 98%)
of its investment company taxable income (computed
without regard to any deduction for dividends paid)
and realized net capital gain, if any, for the current
taxable year through the Closing Date.
1.4. Immediately following the actions
contemplated by paragraph 1.1, Acquired Fund Trust
shall take such actions necessary to complete the
liquidation of the Acquired Fund. To complete the
liquidation, Acquired Fund Trust, on behalf of the
Acquired Fund, shall (a) distribute to its shareholders
of record with respect to each class of Acquired Fund
Shares as of the Closing Date, as defined in
paragraph 3.1 ("Acquired Fund Shareholders"), on a
pro rata basis within that class, the Acquiring Fund
Shares of the corresponding class received by Acquired
Fund Trust, on behalf of the Acquired Fund, pursuant to
paragraph 1.1 and (b) completely liquidate. Such
liquidation shall be accomplished, with respect to each
class of Acquired Fund Shares, by the transfer of the
corresponding Acquiring Fund Shares then credited to
the account of the Acquired Fund on the books of the
Acquiring Fund to open accounts on the share records
of the Acquiring Fund in the names of the Acquired
Fund Shareholders. The aggregate net asset value of
each class of Acquiring Fund Shares to be so credited
to the corresponding class of Acquired Fund
Shareholders shall, with respect to each class, be equal
to the aggregate net asset value of the Acquired Fund
Shares of the corresponding class owned by Acquired
Fund Shareholders on the Closing Date. All issued
and outstanding Acquired Fund Shares will be canceled
on the books of the Acquired Fund. The Acquiring
Fund shall not issue certificates representing any
class of Acquiring Fund Shares in connection with such
exchange.
1.5. Ownership of Acquiring Fund Shares
will be shown on the books of the Acquiring Fund's
transfer agent.
1.6. Any reporting responsibility of the
Acquired Fund, including, but not limited to, the
responsibility for filing regulatory reports, tax
returns, or other documents with the Securities
and Exchange Commission ("Commission"), any
state securities commission, and any federal, state
or local tax authorities or any other relevant regulatory
authority, is and shall remain the responsibility of the
Acquired Fund.
1. VALUATION
1.1. The value of the Assets shall be determined
as of the time for calculation of the net asset value of
the Acquired Fund as set forth in its then-current
prospectus, and after the declaration of any dividends
by the Acquired Fund, on the Closing Date (such time
and date being hereinafter called the "Valuation Date"),
computed using the valuation procedures set forth in
the then-current prospectus and statement of additional
information, as supplemented, with respect to the
Acquired Fund and valuation procedures established by
Acquired Fund Trust's Board of Trustees. All
computations of value shall be made by JPMorgan
Chase Bank, N.A., in its capacity as fund accountant
for the Acquired Fund.
1.2. The net asset value per share of each
class of Acquiring Fund Shares shall be determined
to the nearest full cent as of the time for calculation
of the net asset value of the Acquiring Fund as set
forth in its then-current prospectus on the Closing Date,
using the valuation procedures set forth in the
then-current prospectus and statement of additional
information, as supplemented, with respect to
the Acquiring Fund and valuation procedures
established by Acquiring Fund Trust's Board of Trustees.
All computations of value shall be made by JPMorgan
Chase Bank, N.A., in its capacity as fund accountant
for the Acquiring Fund.
1.3. The number of Acquiring Fund
Shares of each class to be issued in exchange
for the Assets shall be determined with respect to each
such class by dividing the value of the net assets with
respect to each class of Acquired Fund Shares,
determined using the same valuation procedures referred
to in paragraph 2.1, by the net asset value of an
Acquiring Fund Share of the corresponding class,
determined using the same valuation procedures referred
to in paragraph 2.2.
2. CLOSING AND CLOSING DATE
2.1. The Closing Date shall be February 18, 2005,
or such other date as the parties may agree. All acts
taking place at the closing of the transactions provided
for in this Agreement ("Closing") shall be deemed to
take place simultaneously as of the close of business
on the Closing Date unless otherwise agreed to by the
parties. The "close of business" on the Closing Date
shall be as of 5:00 p.m., Eastern Time. The Closing
shall be held at the offices of Acquiring Fund Trust, or
at such other time and/or place as the parties may agree.
2.2. Acquired Fund Trust shall direct JPMorgan
Chase Bank, N.A., as custodian for the Acquired Fund
("Acquired Fund Custodian"), to deliver to Acquiring
Fund Trust, at the Closing, a certificate of an authorized
officer stating that (i) the Assets of the Acquired Fund
have been delivered in proper form to the Acquiring
Fund within two business days prior to or on the Closing
Date, and (ii) all necessary taxes in connection with
the delivery of the Assets of the Acquired Fund,
including all applicable federal and state stock transfer
stamps, if any, have been paid or provision for payment
has been made. The Acquired Fund's portfolio
securities represented by a certificate or other written
instrument shall be presented by the Acquired Fund
Custodian to JPMorgan Chase Bank, N.A., as the
custodian for the Acquiring Fund ("Acquiring Fund
Custodian"). Such presentation shall be made for
examination no later than five (5) business days
preceding the Closing Date, and such certificates
and other written instruments shall be transferred
and delivered by the Acquired Fund as of the
Closing Date for the account of the Acquiring Fund
duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof.
Each Acquired Fund's Assets held in book-entry
form with a securities depository, as defined in
Rule 17f-4 of the 1940 Act, shall be transferred
by the Acquired Fund Custodian to the Acquiring
Fund Custodian for the account of the corresponding
Acquiring Fund as of the Closing Date by book
entry, in accordance with the customary practices
of the Acquired Fund Custodian and of each such
securities depository. The cash to be transferred by
the Acquired Fund shall be delivered by wire transfer
of federal funds on the Closing Date.
2.3. Acquired Fund Trust shall direct the
transfer agent for the Acquired Fund ("Transfer Agent")
to deliver to Acquiring Fund Trust at the Closing a
certificate of an authorized officer stating that its records
contain the name and address of each Acquired Fund
Shareholder and the number and percentage ownership
of each outstanding class of Acquired Fund Shares
owned by each such shareholder immediately prior to
the Closing. The Acquiring Fund shall deliver to the
Secretary of the Acquired Fund a confirmation evidencing
that (a) the appropriate number of Acquiring Fund
Shares have been credited to the Acquired Fund's
account on the books of the Acquiring Fund pursuant
to paragraph 1.1 prior to the actions contemplated
by paragraph 1.4 and (b) the appropriate number of
Acquiring Fund Shares have been credited to the
accounts of the Acquired Fund Shareholders on the books
of the Acquiring Fund pursuant to paragraph 1.4. At the
Closing each party shall deliver to the other party such
bills of sale, checks, assignments, share certificates, if any,
receipts or other documents as the other party or its
counsel may reasonably request.
2.4. In the event that at the Valuation Date
(with respect to the Acquired Fund) or at the time of
calculation of the net asset value per share of
each class of Acquiring Fund Shares pursuant to
paragraph 2.2 (with respect to the Acquiring Fund)
(a) the New York Stock Exchange or another
primary trading market for portfolio securities of
the Acquiring Fund or the Acquired Fund (each, an
"Exchange") shall be closed to trading or trading
thereupon shall be restricted, or (b) trading or the
reporting of trading on such Exchange or elsewhere
shall be disrupted so that accurate appraisal of the value
of the net assets of the Acquired Fund or the
Acquiring Fund is impracticable (in the judgment
of the Board of Trustees of Acquiring Fund Trust with
respect to the Acquiring Fund and the Board of
Trustees of Acquired Fund Trust with respect to the
Acquired Fund), the Closing Date shall be postponed
until the first Friday (that is also a business day)
after the day when trading shall have been fully resumed
and reporting shall have been restored.
3. REPRESENTATIONS AND WARRANTIES
3.1. Except as has been fully disclosed to
Acquiring Fund Trust in Schedule 4.1 to this Agreement,
Acquired Fund Trust, on behalf of the Acquired
Fund, represents and warrants to Acquiring Fund Trust
as follows:
(a) The Acquired Fund is duly established
as a series of Acquired Fund Trust, which is a business
trust duly organized, existing and in good standing under
the laws of the Commonwealth of Massachusetts,
with power under its Declaration of Trust, as amended
("Charter"), to own all of its Assets and to carry on its
business as it is being conducted as of the date
hereof. Acquired Fund Trust is not required to qualify
as a foreign trust or association in any jurisdiction,
except in any jurisdiction in which it has so qualified
or in which a failure to so qualify would not have
a material adverse effect. Acquired Fund Trust has
all necessary federal, state and local authorization to
carry on its business as now being conducted and to
fulfill the terms of this Agreement, except as
set forth in paragraph 4.1(c). The obligations of Acquired
Fund Trust entered into in the name or on behalf thereof
by any of the Trustees, officers, employees or agents
are made not individually, but in such capacities, and
are not binding upon any of the Trustees, officers,
employees, agents or shareholders of Acquired Fund
Trust personally, but bind only the assets of Acquired
Fund Trust and all persons dealing with any series or
fund of Acquired Fund Trust, such as the Acquiring
Fund, must look solely to the assets of Acquired Fund
Trust belonging to such series or fund for the enforcement
of any claims against Acquired Fund Trust.
(b) Acquired Fund Trust is a registered
investment company classified as a management company
of the open-end type, and its registration with the
Commission as an investment company under the 1940
Act, and the registration of each class of Acquired Fund
Shares under the Securities Act of 1933, as amended
("1933 Act"), is in full force and effect.
(c) No consent, approval, authorization,
or order of any court or governmental authority is required
for the consummation by the Acquired Fund of the
transactions contemplated herein, except such as may be
required under the 1933 Act, the Securities Exchange
Act of 1934, as amended ("1934 Act"), the 0000 Xxx,
xxxxx securities laws and the Xxxx-Xxxxx-Xxxxxx Act.
(d) The current prospectus and statement
of additional information of the Acquired Fund conforms
in all material respects to the applicable requirements of
the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does not
include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not materially
misleading.
(e) On the Closing Date, Acquired
Fund Trust, on behalf of the Acquired Fund, will have
good and marketable title to the Assets and full right, power,
and authority to sell, assign, convey, transfer and deliver
such Assets hereunder free of any liens or other
encumbrances, and upon delivery and payment for the
Assets, Acquiring Fund Trust, on behalf of the Acquiring
Fund, will acquire good and marketable title thereto, subject
to no restrictions on the full transfer thereof, including such
restrictions as might arise under the 1933 Act.
(f) The Acquired Fund is not engaged
currently, and the execution, delivery and performance of
this Agreement will not result, in (i) a material violation of
Acquired Fund Trust's Charter or by-laws or of any
agreement, indenture, instrument, contract, lease or other
undertaking to which Acquired Fund Trust, on behalf of the
Acquired Fund, is a party or by which it is bound, or (ii)
the acceleration of any material obligation, or the
imposition of any material penalty, under any agreement,
indenture, instrument, contract, lease, judgment or decree
to which Acquired Fund Trust, on behalf of the Acquired
Fund, is a party or by which it is bound.
(g) All material contracts or other
commitments of the Acquired Fund (other than this
Agreement, contracts listed in Schedule 4.1 and certain
investment contracts, including options, futures, and
forward contracts) will terminate without liability to the
Acquired Fund on or prior to the Closing Date. Each
contract listed in Schedule 4.1 is a valid, binding and
enforceable obligation of each party thereto (assuming
due authorization, execution and delivery by the other
party thereto) and the assignment by the Acquired Fund
to the Acquiring Fund of each such contract will not
result in the termination of such contract, any breach
or default thereunder or the imposition of any penalty
thereunder.
(h) No litigation or administrative
proceeding or investigation of or before any court
or governmental body is presently pending or, to
Acquired Fund Trust's knowledge, threatened against
Acquired Fund Trust, with respect to the Acquired Fund
or any of its properties or assets, that, if adversely
determined, would materially and adversely affect its
financial condition or the conduct of its business.
Acquired Fund Trust, on behalf of the Acquired Fund,
knows of no facts which might form the basis for the
institution of such proceedings and is not a party to
or subject to the provisions of any order, decree or
judgment of any court or governmental body which
materially and adversely affects its business or its
ability to consummate the transactions herein contemplated.
(i) The Statement of Assets and
Liabilities, Statements of Operations and Changes
in Net Assets, and Schedule of Investments of the
Acquired Fund as included in the most recent
Annual Report to Shareholders for the Acquired Fund
(the "Annual Statement"), have been audited
by PricewaterhouseCoopers LLP, Independent Registered
Public Accounting Firm, and are in accordance with
accounting principles generally accepted in the United
States of America ("GAAP") consistently applied, and
such statements (true and correct copies of which have
been furnished to the Acquiring Fund Trust) present
fairly, in all material respects, the financial condition
of the Acquired Fund as of the date of the Annual
Statement in accordance with GAAP, and there are no
known contingent, accrued or other liabilities of
the Acquired Fund required to be reflected on a balance
sheet (including the notes thereto) in accordance with
GAAP as of the date of the Annual Statement that
are not disclosed therein. The Statement of Assets
and Liabilities, Statements of Operations and Changes
in Net Assets, and Schedule of Investments of the
Acquired Fund, as included or to be included in the most
recent Semi-Annual Report to shareholders for the
Acquired Fund since the date of the Annual Statement
(the "Semi-Annual Statement") (unaudited), are or will
be when sent to the Acquired Fund shareholders in the
regular course in accordance with GAAP consistently
applied, and such statements (true and correct copies
of which have been or will be furnished to the Acquiring
Fund Trust) present or will present fairly, in all material
respects, the financial condition of the Acquired Fund as
of the date of the Semi-Annual Statement in accordance
with GAAP, and all known contingent, accrued or other
liabilities of the Acquired Fund required to be reflected
on a balance sheet (including the notes thereto) in accordance
with GAAP as of such date are or will be disclosed therein.
(j) Since the date of the Annual Statement,
there has not been any material adverse change in the
Acquired Fund's financial condition, assets, liabilities or
business, other than changes occurring in the ordinary
course of business, or any incurrence by the Acquired Fund
of indebtedness, other than the incurrence of indebtedness
in the ordinary course of business in accordance with the
Acquired Fund's investment restrictions. For the purposes
of this subparagraph (j), a decline in net asset value per
share of Acquired Fund Shares due to declines in market
values of securities held by the Acquired Fund, the discharge
of Acquired Fund liabilities, or the redemption of Acquired
Fund Shares by shareholders of the Acquired Fund shall
not constitute a material adverse change.
(k) On the Closing Date, all federal
and other tax returns, dividend reporting forms, and
other tax-related reports of the Acquired Fund required by
law to have been filed by such date (including any
extensions) shall have been filed and are or will be correct
in all material respects, and all federal and other taxes
shown as due or required to be shown as due on said
returns and reports shall have been paid or provision
shall have been made for the payment thereof and, to the
best of Acquired Fund Trust's knowledge, no such return
is currently under audit and no assessment has been asserted
with respect to such returns.
(l) For each taxable year of its operation
(including the taxable year ending on the Closing Date),
the Acquired Fund has met (or will meet) the requirements
of Subchapter M of the Code for qualification and treatment
as a regulated investment company, has elected to be treated
as such, and has been (or will be) eligible to and has
computed (or will compute) its federal income tax under
Section 852 of the Code, and will have distributed
substantially all of (i) the excess of (x) its investment
income excludible from gross income under Section
103 of the Code over (y) its deductions disallowed
under Sections 265 and 171 of the Code (net
tax-exempt income), (ii) its investment company
taxable income (computed without regard to any
deduction for dividends paid) and (iii) any net capital
gain (after reduction for any capital loss carryover)
(as defined in the Code) that has accrued through the
Closing Date, and before the Closing Date will have
declared dividends intended to be sufficient to distribute
all of its net tax-exempt income, investment company
taxable income and net capital gain for the period ending
on the Closing Date.
(m) All issued and outstanding Acquired
Fund Shares are, and on the Closing Date will be, duly
authorized and validly and legally issued and outstanding,
fully paid and non-assessable by Acquired Fund Trust and
will have been offered and sold in every state, territory
and the District of Columbia in compliance in all
material respects with applicable registration requirements
of all applicable federal and state securities laws. All
of the issued and outstanding Acquired Fund Shares will,
at the time of Closing, be held by the persons and in the
amounts set forth in the records of the Transfer Agent, on
behalf of the Acquired Fund, as provided in paragraph
3.2. The Acquired Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase
any of the Acquired Fund Shares, nor is there outstanding
any security convertible into any of the Acquired Fund
Shares. The Acquired Fund will review its assets to
ensure that at any time prior to the Closing Date its assets
do not include any assets that the Acquiring Fund is not
permitted, or reasonably believes to be unsuitable for
it, to acquire, including without limitation any security
that, prior to its acquisition by the Acquired Fund, is
unsuitable for the Acquiring Fund to acquire.
(a) The execution, delivery and performance
of this Agreement, and the transactions contemplated herein,
have been duly authorized by all necessary action on the
part of the Board of Trustees of Acquired Fund Trust, and
by the approval of the Acquired Fund's shareholders, as
described in paragraph 8.1, and this Agreement constitutes
a valid and binding obligation of Acquired Fund Trust,
on behalf of the Acquired 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.
(b) The combined proxy statement and
prospectus ("Proxy Statement") to be included in the
Registration Statement (as defined in paragraph 5.6),
insofar as it relates to the Acquired Fund and Acquired
Fund Trust, will from the effective date of the
Registration Statement through the date of the meeting
of shareholders of the Acquired Fund contemplated
therein and on the Closing Date (i) 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 materially misleading (provided that this
representation and warranty shall not apply to statements
in or omissions from the Proxy Statement made in reliance
upon and in conformity with information that was
furnished by the Acquiring Fund for use therein) and
(ii) comply in all material respects with the provisions
of the 1933 Act, the 1934 Act and the 1940 Act and
the rules and regulations thereunder. The information
to be furnished by the Acquired Fund for use in
registration statements and other documents filed or to
be filed with any federal, state or local regulatory
authority (including the National Association of Securities
Dealers, Inc.), which may be necessary in connection
with the transactions contemplated hereby, shall be accurate
and complete in all material respects and shall comply in
all material respects with federal securities and other
laws and regulations thereunder applicable thereto.
3.3. Except as has been fully disclosed to
Acquired Fund Trust in Schedule 4.2 to this
Agreement, Acquiring Fund Trust, on behalf
of the Acquiring Fund, represents and warrants
to Acquired Fund Trust as follows:
(a) The Acquiring Fund is duly
established as a series of Acquiring Fund Trust, which
is a business trust duly organized, existing, and in
good standing under the laws of the Commonwealth
of Massachusetts with the power under Acquiring
Fund Trust's Declaration of Trust to own all of its
properties and assets and to carry on its business
as contemplated by this Agreement. Acquiring Fund
Trust is not required to qualify as a foreign trust or
association in any jurisdiction, except in any jurisdiction
in which it has so qualified or in which a failure to so
qualify would not have a material adverse effect.
Acquiring Fund Trust has all necessary federal, state
and local authorization to carry on its business as now
being conducted and to fulfill the terms of this
Agreement, except as set forth in paragraph 4.2(c).
The obligations of Acquiring Fund Trust entered into
in the name or on behalf thereof by any of the Trustees,
officers, employees or agents are made not individually,
but in such capacities, and are not binding upon any of
the Trustees, officers, employees, agents or
shareholders of Acquiring Fund Trust personally, but
bind only the assets of Acquiring Fund Trust and all
persons dealing with any series or fund of Acquiring
Fund Trust, such as the Acquired Fund, must look solely
to the assets of Acquiring Fund Trust belonging to such
series or fund for the enforcement of any claims against
Acquiring Fund Trust.
(b) Acquiring Fund Trust is a registered
investment company classified as a management company
of the open-end type, and its registration with the
Commission as an investment company under the 1940
Act and the registration of each class of the Acquiring
Fund Shares under the 1933 Act will be in full force and
effect as of the Closing Date.
(c) No consent, approval, authorization,
or order of any court or governmental authority is required
for the consummation by the Acquiring Fund of the
transactions contemplated herein, except such as may be
required under the 1933 Act, the 1934 Act, the 1940
Act, state securities laws and the Xxxx-Xxxxx-Xxxxxx Act.
(d) The current prospectus and statement
of additional information of the Acquiring Fund conforms
in all material respects to the applicable requirements of
the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does not
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not materially
misleading.
(e) The Acquiring Fund is not engaged
currently, and the execution, delivery and performance of
this Agreement will not result, in (i) a material
violation of Acquiring Fund Trust's Declaration of Trust
or by-laws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which Acquiring
Fund Trust, on behalf of the Acquiring Fund, is a party or
by which it is bound, or (ii) the acceleration of any
material obligation, or the imposition of any material
penalty, under any agreement, indenture, instrument,
contract, lease, judgment or decree to which Acquiring
Fund Trust, on behalf of the Acquiring Fund, is a party
or by which it is bound.
(f) No litigation or administrative
proceeding or investigation of or before any court or
governmental body is presently pending or, to
Acquiring Fund Trust's knowledge, threatened against
Acquiring Fund Trust, with respect to the Acquiring
Fund or any of the Acquiring Fund's properties or
assets, that, if adversely determined, would materially
and adversely affect the Acquiring Fund's financial
condition or the conduct of its business. Acquiring Fund
Trust, on behalf of the Acquiring Fund, knows of no
facts which might form the basis for the institution of
such proceedings and is not a party to or subject to the
provisions of any order, decree or judgment of any
court or governmental body which materially and
adversely affects the Acquiring Fund's business or
its ability to consummate the transactions herein
contemplated.
(g) The Statement of Assets and
Liabilities, Statements of Operations and Changes
in Net Assets, and Schedule of Investments of the
Acquiring Fund as included in the most recent
Annual Report to Shareholders for the Acquiring
Fund (the "Annual Statement"), have been audited
by PricewaterhouseCoopers LLP, Independent
Registered Public Accounting Firm, and are in
accordance with accounting principles generally accepted
in the United States of America ("GAAP") consistently
applied, and such statements (true and correct copies
of which have been furnished to the Acquired Fund
Trust) present fairly, in all material respects, the
financial condition of the Acquired Fund as of the
date of the Annual Statement in accordance with
GAAP, and there are no known contingent, accrued
or other liabilities of the Acquiring Fund required
to be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of the date of
the Annual Statement that are not disclosed therein.
The Statement of Assets and Liabilities, Statements
of Operations and Changes in Net Assets, and Schedule
of Investments of the Acquiring Fund, as included or to
be included in the most recent Semi-Annual Report to
shareholders for the Acquiring Fund since the date of the
Annual Statement (the "Semi-Annual Statement")
(unaudited), are or will be when sent to the Acquiring
Fund shareholders in the regular course in accordance
with GAAP consistently applied, and such statements
(true and correct copies of which have been or will be
furnished to the Acquired Fund Trust) present or will
present fairly, in all material respects, the financial
condition of the Acquiring Fund as of the date of
the Semi-Annual Statement, in accordance with
GAAP, and all known contingent, accrued or other
liabilities of the Acquiring Fund required to be reflected
on a balance sheet (including the notes thereto) in
accordance with GAAP as of such date are or will be
disclosed therein.
(h) Since the date of the Annual
Statement, there has not been any material adverse
change in the Acquiring Fund's financial condition,
assets, liabilities or business, other than changes
occurring in the ordinary course of business, or any
incurrence by the Acquiring Fund of indebtedness,
other than the incurrence of indebtedness in the ordinary
course of business in accordance with the Acquiring
Fund's investment restrictions. For the purposes of this
subparagraph (h), a decline in net asset value per share
of Acquiring Fund Shares due to declines in market
values of securities held by the Acquiring Fund,
the discharge of Acquiring Fund liabilities, or the
redemption of Acquiring Fund Shares by shareholders
of the Acquiring Fund shall not constitute a material
adverse change.
(i) On the Closing Date, all federal
and other tax returns, dividend reporting forms, and
other tax-related reports of the Acquiring Fund required
by law to have been filed by such date (including any
extensions) shall have been filed and are or will be
correct in all material respects, and all federal and
other taxes shown as due or required to be shown as
due on said returns and reports shall have been paid
or provision shall have been made for the payment
thereof and, to the best of Acquiring Fund Trust's
knowledge, no such return is currently under audit
and no assessment has been asserted with respect to
such returns.
(j) For each taxable year of its
operation (including the taxable year that includes
the Closing Date), the Acquiring Fund has met
(or will meet) the requirements of Subchapter
M of the Code for qualification and treatment as
a regulated investment company, has elected to be
treated as such, and has been (or will be) eligible to
and has computed (or will compute) its federal income
tax under Section 852 of the Code, and will have
distributed substantially all of its (i) investment
company taxable income (computed without regard
to any deduction for dividends paid) and (ii) net
capital gain (after reduction for any capital loss
carryover) (as defined in the Code) for periods ending
prior to the Closing Date.
(k) All of the issued and outstanding
Acquiring Fund Shares are, and on the Closing Date
will be, duly authorized and validly and legally issued
and outstanding, fully paid and non-assessable by
Acquiring Fund Trust and will have been offered and
sold in every state, territory and the District of
Columbia in compliance in all material respects with
applicable registration requirements of all applicable
federal and state securities laws. The Acquiring
Fund does not have outstanding any options, warrants
or other rights to subscribe for or purchase any
Acquiring Fund Shares, nor is there outstanding
any security convertible into any Acquiring Fund
Shares. All of the Acquiring Fund Shares to be
issued and delivered to the Acquired Fund, for
the account of the Acquired Fund Shareholders,
pursuant to this Agreement will on the Closing Date
have been duly authorized and, when so issued and
delivered, will be duly and validly and legally issued
Acquiring fund Shares and be fully paid and non-assessable
by Acquiring Fund Trust.
(l) The execution, delivery and performance
of this Agreement, and the transactions contemplated
herein, have been duly authorized by all necessary action
on the part of the Board of Trustees of Acquiring
Fund Trust and this Agreement constitutes a valid and
binding obligation of Acquiring Fund Trust, on behalf
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.
(m) The Proxy Statement to be included
in the Registration Statement, insofar as it relates to the
Acquiring Fund, Acquiring Fund Trust and the Acquiring
Fund Shares, will from the effective date of the Registration
Statement through the date of the meeting of
shareholders of the Acquired Fund contemplated therein
and on the Closing Date (i) 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 materially
misleading (provided that this representation and warranty
shall not apply to statements in or omissions from the
Proxy Statement made in reliance upon and in
conformity with information that was furnished by the
Acquired Fund for use therein) and (ii) comply in all
material respects with the provisions of the 1933 Act,
the 1934 Act and the 1940 Act and the rules and
regulations thereunder. The information to be furnished
by the Acquiring Fund for use in registration statements
and other documents filed or to be filed with any
federal, state or local regulatory authority (including
the National Association of Securities Dealers, Inc.),
which may be necessary in connection with the transactions
contemplated hereby, shall be accurate and complete in
all material respects and shall comply in all material
respects with federal securities and other laws and
regulations thereunder applicable thereto.
4. COVENANTS
Acquired Fund Trust, on behalf of the Acquired
Fund, and Acquiring Fund Trust, on behalf of the
Acquiring Fund, respectively, hereby further
covenant as follows:
4.1. The Acquired Fund and the Acquiring
Fund
each will operate its business in the ordinary course
between the date hereof and the Closing Date, it being
understood that such ordinary course of business will
include the declaration and payment of customary
dividends and distributions, and any other distribution
that may be advisable.
4.2. Acquired Fund Trust will call a meeting
of the shareholders of the Acquired Fund to consider
and act upon this Agreement and to take all other action
necessary to obtain approval of the transactions contemplated herein.
4.3. The Acquired Fund covenants that the
Acquiring Fund Shares to be issued hereunder are not
being acquired for the purpose of making any
distribution thereof, other than in accordance with
the terms of this Agreement.
4.4. The Acquired Fund will assist the
Acquiring Fund in obtaining such information as the
Acquiring Fund reasonably requests concerning the
beneficial ownership of the Acquired Fund Shares.
4.5. Subject to the provisions of this Agreement,
each of the Acquiring Fund and the Acquired Fund covenant
to 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.
4.6. Acquiring Fund Trust shall prepare and
file a Registration Statement on Form N-14 in compliance
with the 1933 Act, the 1934 Act and the 1940 Act and the
rules and regulations thereunder with respect to the
Reorganization ("Registration Statement"). The
Acquired Fund will provide to the Acquiring Fund
such information regarding the Acquired Fund as may
be reasonably necessary for the preparation of the
Registration Statement.
4.7. Each of the Acquiring Fund and the
Acquired Fund covenant to use its reasonable
best efforts to fulfill or obtain the fulfillment of the
conditions precedent to effect the transactions
contemplated by this Agreement as promptly as practicable.
4.8. Acquired Fund Trust, on behalf of the
Acquired Fund, covenants that it will, from time
to time, as and when reasonably requested by
Acquiring Fund Trust, execute and deliver or cause
to be executed and delivered all such assignments
and other instruments and will take or cause to be
taken such further action as Acquiring Fund Trust,
on behalf of the Acquiring Fund, may reasonably
deem necessary or desirable in order to vest in and
confirm (a) Acquired Fund Trust's title to and
possession of the Acquiring Fund Shares to be
delivered hereunder and (b) Acquiring Fund
Trust's title to and possession of all the Assets and
otherwise to carry out the intent and purpose of this
Agreement.
4.9. The Acquiring Fund covenants to
use all reasonable efforts to obtain the approvals
and authorizations required by the 1933 Act, the
1940 Act and such of the state blue sky or securities
laws as may be necessary in order to continue its
operations after the Closing Date.
4.10. The Acquiring Fund shall not change
its Declaration of Trust, prospectus or statement
of additional information prior to the Closing so
as to restrict permitted investments for the Acquiring
Fund prior to the Closing, except as required by the
Commission.
5. CONDITIONS PRECEDENT TO OBLIGATIONS
OF ACQUIRED FUND
The obligations of Acquired Fund Trust, on behalf
of the Acquired Fund, to consummate the transactions
provided for herein shall be subject, at Acquired
Fund Trust's election, to the performance by Acquiring
Fund Trust, on behalf of the Acquiring Fund, of all the
obligations to be performed by it hereunder on or before
the Closing Date, and, in addition thereto, the following
further conditions:
5.1. All representations and warranties of Acquiring
Fund Trust, on behalf of the Acquiring Fund, contained in
this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this
Agreement, as of the Closing Date, with the same force
and effect as if made on and as of the Closing Date.
5.2. Acquiring Fund Trust, on behalf of
the Acquiring Fund, shall have performed all of the
covenants and complied with all of the provisions
required by this Agreement to be performed or
complied with by Acquiring Fund Trust, on behalf
of the Acquiring Fund, on or before the Closing Date.
5.3. Acquiring Fund Trust shall have executed
and delivered an assumption of the Liabilities and
all such other agreements and instruments as Acquired
Fund Trust may reasonably deem necessary or desirable
in order to vest in and confirm (a) Acquired Fund Trust's
title to and possession of the Acquiring Fund Shares to
be delivered hereunder and (b) Acquiring Fund Trust's
assumption of all of the Liabilities and otherwise to
carry out the intent and purpose of this Agreement.
5.4. Acquiring Fund Trust, on behalf of
the Acquiring Fund, shall have delivered to the Acquired
Fund a certificate executed in the name of Acquiring
Fund Trust, on behalf of the Acquiring Fund, by Acquiring
Fund Trust's President or Vice President and its Treasurer
or Assistant Treasurer, in a form reasonably satisfactory to
Acquired Fund Trust and dated as of the Closing Date,
as to the matters set forth in paragraphs 6.1 and 6.2 and
as to such other matters as Acquired Fund Trust shall
reasonably request.
5.5. The Acquired Fund and the Acquiring
Fund shall have agreed on the number of full and
fractional Acquiring Fund Shares to be issued in connection
with the Reorganization after such number has been
calculated in accordance with paragraph 1.1.
6. CONDITIONS PRECEDENT TO OBLIGATIONS
OF ACQUIRING FUND
The obligations of Acquiring Fund Trust, on
behalf of the Acquiring Fund, to consummate the
transactions provided for herein shall be subject, at
Acquiring Fund Trust's election, to the performance
by Acquired Fund Trust, on behalf of the Acquired
Fund, of all of the obligations to be performed by it
hereunder on or before the Closing Date and, in
addition thereto, the following further conditions:
6.1. All representations and warranties of Acquired
Fund Trust, on behalf of the Acquired Fund, contained in
this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this
Agreement, as of the Closing Date, with the same force
and effect as if made on and as of the Closing Date.
6.2. Acquired Fund Trust, on behalf of the
Acquired Fund, shall have performed all of the
covenants and complied with all of the provisions
required by this Agreement to be performed or complied
with by Acquired Fund Trust, on behalf of the Acquired
Fund, on or before the Closing Date.
6.3. Acquired Fund Trust shall have
delivered to the Acquiring Fund a statement of the
Assets and Liabilities, as of the Closing Date,
including a schedule of investments, certified by the
Treasurer of Acquired Fund Trust. Acquired Fund
Trust shall have executed and delivered all such
assignments and other instruments of transfer as
Acquiring Fund Trust may reasonably deem necessary
or desirable in order to vest in and confirm (a) Acquired
Fund Trust's title to and possession of the Acquiring
Fund Shares to be delivered hereunder and (b)
Acquiring Fund Trust's title to and possession of all the
Assets and otherwise to carry out the intent and purpose
of this Agreement.
6.4. Acquired Fund Trust, on behalf of the
Acquired Fund, shall have delivered to Acquiring Fund
Trust a certificate executed in the name of Acquired
Fund Trust, on behalf of the Acquired Fund, by Acquired
Fund Trust's President or Vice President and its Treasurer
or Assistant Treasurer, in a form reasonably satisfactory
to Acquiring Fund Trust and dated as of the Closing Date,
as to the matters set forth in paragraphs 7.1 and 7.2 and
as to such other matters as Acquiring Fund Trust shall
reasonably request.
6.5. The Acquired Fund and the Acquiring
Fund shall have agreed on the number of full and
fractional Acquiring Fund Shares to be issued in connection
with the Reorganization after such number has been
calculated in accordance with paragraph 1.1.
7. FURTHER CONDITIONS PRECEDENT TO
OBLIGATIONS OF ACQUIRING FUND AND
ACQUIRED FUND
If any of the conditions set forth below have
not been satisfied on or before the Closing Date with
respect to Acquired Fund Trust, on behalf of the
Acquired Fund, or Acquiring Fund Trust, on behalf
of the Acquiring Fund, the other party to this
Agreement shall be entitled, at its option, to
refuse to consummate the transactions contemplated
by this Agreement:
7.1. This Agreement and the transactions
contemplated herein shall have been approved by the
requisite vote of the holders of the outstanding shares
of the Acquired Fund in accordance with the provision
of the Charter and by-laws of Acquired Fund Trust,
applicable state law and the 1940 Act, and certified
copies of the resolutions evidencing such approval
shall have been delivered to the Acquiring Fund.
Notwithstanding anything herein to the contrary,
neither Acquired Fund Trust nor Acquiring Fund Trust
may waive the condition set forth in this paragraph 8.1.
7.2. On the Closing Date no action, suit or other
proceeding shall be pending or, to Acquired Fund Trust's
or to Acquiring Fund Trust'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.
7.3. All consents of other parties and all other
consents, orders and permits of federal, state and local
regulatory authorities deemed necessary by Acquired
Fund Trust or Acquiring Fund Trust to permit
consummation, in all material respects, of the transactions
contemplated hereby shall have been obtained, except
where failure to obtain any such consent, order or permit
would not involve a risk of a material adverse effect on
the assets or properties of the Acquiring Fund or the
Acquired Fund, provided that either party hereto
may for itself waive any of such conditions.
7.4. The 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 contemplated
under the 0000 Xxx.
7.5. The parties shall have received the opinion
of Dechert LLP dated the Closing Date, substantially to the
effect that, based upon certain facts, assumptions, and
representations made by Acquired Fund Trust, on behalf
of the Acquired Fund, Acquiring Fund Trust, on behalf
of the Acquiring Fund, and their respective authorized
officers, (i) the transaction contemplated by this
Agreement will constitute a reorganization within the
meaning of Section 368(a) of the Code, and the Acquiring
Fund and the Acquired Fund will each be a "party to a
reorganization" within the meaning of Section 368(b) of
the Code; (ii) no gain or loss will be recognized by the
Acquiring Fund upon receipt of the Assets in exchange
for the Acquiring Fund Shares and the assumption
by the Acquiring Fund of the Liabilities; (iii) the basis
in the hands of the Acquiring Fund in the Assets will
be the same as the basis of the Acquired Fund in the
Assets immediately prior to the transfer thereof; (iv) the
holding periods of the Assets in the hands of the
Acquiring Fund will include the periods during which
the Assets were held by the Acquired Fund; (v) no gain
or loss will be recognized by the Acquired Fund upon
the transfer of the Assets to the Acquiring Fund in
exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of all of the Liabilities,
or upon the distribution of the Acquiring Fund Shares
by the Acquired Fund to its shareholders in liquidation;
(vi) no gain or loss will be recognized by the Acquired
Fund shareholders upon the exchange of their Acquired
Fund Shares for the Acquiring Fund Shares; (vii) the
aggregate basis of the Acquiring Fund Shares that
each Acquired Fund shareholder receives in connection
with the transaction will be the same as the aggregate
basis of his or her Acquired Fund Shares exchanged
therefor; (viii) an Acquired Fund shareholder's holding
period for his or her Acquiring Fund Shares will be
determined by including the period for which he or she
held the Acquired Fund Shares exchanged therefore,
provide that he or she held such Acquired Fund Shares
as capital assets; and (ix) the Acquiring Fund will
succeed to, and take into account (subject to the
conditions and limitations specified in Sections 381,
382, 383, and 384 of the Code and the Regulations
thereunder) the items of the Acquired Fund described
in Section 381(c) of the Code. The opinion will not
address whether gain or loss will be recognized with
respect to any contracts subject to Section 1256 of
the Code in connection with the reorganization.
The delivery of such opinion is conditioned upon
receipt by Dechert LLP of representations it shall request
of Acquired Fund Trust and Acquiring Fund Trust.
Notwithstanding anything herein to the contrary,
neither Acquired Fund Trust nor Acquiring Fund Trust
may waive the condition set forth in this paragraph 8.5.
7.6. The Assets will include no assets which
the Acquiring Fund, by reason of limitations contained
in its Declaration of Trust or of investment restrictions
disclosed in its current prospectus and statement
of additional information, as supplemented, in effect
on the Closing Date, may not properly acquire.
8. INDEMNIFICATION
8.1. Acquiring Fund Trust, out of the Acquiring
Fund's assets and property (including any amounts paid to
the Acquiring Fund pursuant to any applicable
liability insurance policies or indemnification agreements)
agrees to indemnify and hold harmless Acquired Fund
Trust and its Trustees and officers from and against any
and all losses, claims, damages, liabilities or expenses
(including, without limitation, the payment of reasonable
legal fees and reasonable costs of investigation) to which
the Acquired Fund may become subject, insofar as such
loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on (a) any
breach by the Acquiring Fund of any of its
representations, warranties, covenants or agreements
set forth in this Agreement or (b) any act, error,
omission, neglect, misstatement, materially misleading
statement, breach of duty or other act wrongfully done
or attempted to be committed by Acquiring Fund Trust
or its Trustees or officers prior to the Closing Date,
provided that such indemnification by Acquiring Fund
Trust (or the Acquiring Fund) is not (i) in violation of
any applicable law or (ii) otherwise prohibited as a result
of any applicable order or decree issued by any governing
regulatory authority or court of competent jurisdiction.
8.2. Acquired Fund Trust, out of the Acquired
Fund's assets and property including (including any
amounts paid to the Acquired Fund pursuant to any
applicable liability insurance policies or indemnification
agreements) agrees to indemnify and hold harmless
Acquiring Fund Trust and its Trustees and officers
from and against any and all losses, claims, damages,
liabilities or expenses (including, without limitation,
the payment of reasonable legal fees and reasonable
costs of investigation) to which the Acquiring Fund
may become subject, insofar as such loss, claim, damage,
liability or expense (or actions with respect thereto)
arises out of or is based on (a) any breach by the
Acquired Fund of any of its representations, warranties,
covenants or agreements set forth in this Agreement
or (b) any act, error, omission, neglect, misstatement,
materially misleading statement, breach of duty or other
act wrongfully done or attempted to be committed by
Acquired Fund Trust or its Trustees or officers prior to
the Closing Date, provided that such indemnification by
Acquired Fund Trust (or the Acquired Fund) is not (i) in
violation of any applicable law or (ii) otherwise
prohibited as a result of any applicable order or decree
issued by any governing regulatory authority or court
of competent jurisdiction.
9. BROKERAGE FEES AND EXPENSES
9.1. Acquiring Fund Trust, on behalf of the
Acquiring Fund, and Acquired Fund Trust, on behalf
of the Acquired Fund, 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. The expenses relating to the Reorganization
will be borne by X.X. Xxxxxx Investment Management
Inc. The costs of the Reorganization shall include, but
not be limited to, costs associated with obtaining any
necessary order of exemption from the 1940 Act,
preparation and filing of the Registration Statement and
printing and distribution of the Proxy Statement, legal
fees, accounting fees, securities registration fees, and
expenses of holding a shareholders' meeting pursuant
to paragraph 5.2. Notwithstanding any of the foregoing,
expenses will in any event be paid by the party directly
incurring such expenses if and to the extent that the
payment by another person of such expenses would result
in the disqualification of such party as a "regulated
investment company" within the meaning of Section 851
of the Code.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1. Acquiring Fund Trust and Acquired Fund Trust
agree that neither party has made any representation,
warranty or covenant, on behalf of either the Acquiring
Fund or the Acquired Fund, respectively, not set forth
herein and that this Agreement constitutes the entire
agreement between the parties.
10.2. 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
and the obligations of each of the Acquired Fund
and Acquiring Fund in Section 9 shall survive the Closing.
11. TERMINATION
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned by resolution of the
either the Board of Trustees of Acquiring Fund Trust or the
Board of Trustees of Acquired Fund Trust, at any time
prior to the Closing Date, if circumstances should develop
that, in the opinion of that Board, make proceeding with the
Agreement inadvisable with respect to the Acquiring
Fund or the Acquired Fund, respectively.
12. AMENDMENTS
This Agreement may be amended, modified
or supplemented in such manner as may be deemed
necessary or advisable by the authorized officers of
Acquiring Fund Trust and Acquired Fund Trust.
13. 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, electronic
delivery (i.e., e-mail) personal service or prepaid or
certified mail addressed as follows: if to Acquiring
Fund Trust or Acquired Fund Trust, at the address
set forth in the preamble to this Agreement, in each
case to the attention of Xxxx X. Xxxxxxx and with a
copy to Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, attn.: Xxxx X. Xxxxxxxxxxx, Xx.
14. HEADINGS; GOVERNING LAW;
SEVERABILITY; ASSIGNMENT; LIMITATION OF
LIABILITY; RULE 145
14.1. The Article and paragraph headings contained
in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation
of this Agreement.
14.2. This Agreement shall be governed by and
construed in accordance with the laws of the
Commonwealth of Massachusetts without regard to its
principles of conflicts of laws.
14.3. 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 party. Nothing herein expressed or implied
is intended or shall be construed to confer upon or give
any person, firm or corporation, other than the
parties hereto and their respective successors and assigns,
any rights or remedies under or by reason of this Agreement.
14.4. Pursuant to Rule 145 under the 1933 Act,
the Acquired Fund will, in connection with the issuance of
any Acquiring Fund Shares to any person who at the time
of the transaction contemplated hereby is deemed to be
an affiliate of a party to the transaction pursuant to Rule
145(c), cause to be affixed upon the certificates issued to
such person (if any) a legend as follows:
"THESE SHARES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT TO JPMORGAN GLOBAL
STRATEGIC INCOME FUND OR ITS PRINCIPAL
UNDERWRITER UNLESS (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (ii) IN THE OPINION
OF COUNSEL REASONABLY SATISFACTORY
TO JPMORGAN GLOBAL STRATEGIC INCOME FUND,
SUCH REGISTRATION IS NOT REQUIRED;"
and, further, the Acquired Fund will issue stop transfer
instructions to its transfer agent with respect
to such Acquired Fund Shares.
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed
by its President or any Vice President.
X.X. XXXXXX INSTITUTIONAL FUNDS, X.X.
XXXXXX MUTUAL FUND GROUP,
on behalf its series, on behalf of its series,
JPMorgan Global Strategic Income Fund
JPMorgan Strategic Income Fund
By: By:
Name: Name:
Title: Title:
With respect to paragraph 10.2 of this Agreement,
Accepted and Acknowledged by:
X.X. Xxxxxx Investment Management Inc.
By:
Name:
Title:
Schedule 4.1
None.
Schedule 4.2
None.
31
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278964.1.DC_03
