X.X. XXXXXX INSTITUTIONAL FUNDS
X.X. XXXXXX SERIES TRUST
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 Xxxxxxx
International Opportunities Fund (Acquiring Fund),
and X.X. Xxxxxx Series Trust, 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 Global 50 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:
1. 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 Funds 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 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 Funds 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.
2. VALUATION
2.1. 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 Trusts 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.
2.2. 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 Trusts 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.
2.3. 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.
3. CLOSING AND CLOSING DATE
3.1. 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.
3.2. 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 Funds 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 Funds 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.
3.3. 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 Funds 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.
3.4. 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.
4. REPRESENTATIONS AND WARRANTIES
4.1. 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 Trusts 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 Trusts 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 Funds 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 Funds 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
Trusts 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 3.3.
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.
(n) 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 Funds 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.
(o) 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.
4.2. 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 Trusts 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 Trusts 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
Trusts knowledge, threatened against Acquiring
Fund Trust, with respect to the Acquiring Fund or
any of the Acquiring Funds properties or assets,
that, if adversely determined, would materially and
adversely affect the Acquiring Funds 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 Funds 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 Funds 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 Funds
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 Trusts
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.
5. 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:
5.1. 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.
5.2. 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.
5.3. 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.
5.4. 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.
5.5. 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.
5.6. 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.
5.7. 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.
5.8. 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 Trusts title to and
possession of the Acquiring Fund Shares to be delivered
hereunder and (b) Acquiring Fund Trusts title to and
possession of all the Assets and otherwise to carry out
the intent and purpose of this Agreement.
5.9. 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.
5.10. 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.
6. 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 Trusts 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:
6.1. 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.
6.2. 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.
6.3. 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
Trusts title to and possession of the Acquiring Fund
Shares to be delivered hereunder and (b) Acquiring Fund
Trusts assumption of all of the Liabilities and
otherwise to carry out the intent and purpose of this
Agreement.
6.4. 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 Trusts 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.
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. 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 Trusts 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:
7.1. 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.
7.2. 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.
7.3. 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 Trusts title to and possession of the
Acquiring Fund Shares to be delivered hereunder
and (b) Acquiring Fund Trusts title to and
possession of all the Assets and otherwise to
carry out the intent and purpose of this Agreement.
7.4. 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 Trusts 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.
7.5. 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.
8. 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:
8.1. 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.
8.2. On the Closing Date no action, suit or other
proceeding shall be pending or, to Acquired Fund
Trusts or to Acquiring Fund Trusts knowledge,
threatened before any court or governmental agency
in which it is sought to restrain or prohibit, or
obtain damages or other relief in connection with,
this Agreement or the transactions contemplated herein.
8.3. All consents of other parties and all other
consents, orders and permits of federal, state and
local regulatory authorities deemed necessary by
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.
8.4. The Registration Statement shall have become
effective under the 1933 Act and no stop orders
suspending the effectiveness thereof shall have
been issued 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.
8.5. 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 shareholders
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.
8.6. 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.
9. INDEMNIFICATION
9.1. Acquiring Fund Trust, out of the Acquiring Funds
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.
9.2. Acquired Fund Trust, out of the Acquired Funds
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.
10. BROKERAGE FEES AND EXPENSES
10.1. 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.
10.2. 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.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. 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.
11.2. 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.
12. 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.
13. 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.
14. 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.
15. HEADINGS; GOVERNING LAW; SEVERABILITY; ASSIGNMENT;
LIMITATION OF LIABILITY; RULE 145
15.1. The Article and paragraph headings contained in
this Agreement are for reference purposes only and shal
l not affect in any way the meaning or interpretation of
this Agreement.
15.2. This Agreement shall be governed by and
construed in accordance with the laws of the
Commonwealth of Massachusetts without regard to
its principles of conflicts of laws.
15.3. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective
successors and assigns, but no assignment or
transfer hereof or of any rights or obligations
hereunder shall be made by any party without the
written consent of the other 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.
15.4. 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
XXXXXXX INTERNATIONAL OPPORTUNITIES 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 XXXXXXX INTERNATIONAL OPPORTUNITIES
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 SERIES TRUST,
on behalf its series, on behalf of its series,
JPMorgan Xxxxxxx International JPMorgan
Global 50 Fund
Opportunities 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.
