AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is
adopted as of this 11th day of September, 2006, by Xxxx Xxxxx
Partners Income Funds, a Massachusetts business trust (the
"Trust"), with its principal place of business at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on behalf of its series Xxxx
Xxxxx Partners Capital and Income Fund (the "Acquiring Fund") and
Xxxx Xxxxx Partners Dividend and Income Fund (the "Acquired
Fund"), and, solely for purposes of paragraph 7.2 hereof, Xxxx
Xxxxx Partners Fund Advisor, LLC.
WHEREAS, each of the Acquired Fund and the Acquiring Fund is
a series of the Trust, which is an open-end management investment
company registered pursuant to the Investment Company Act of
1940, as amended (the "1940 Act");
WHEREAS, it is intended that, for United States federal
income tax purposes (i) the transactions contemplated by this
Agreement shall qualify as a "reorganization" within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code") and (ii) this Agreement shall constitute a
plan of reorganization within the meaning of Treasury Regulation
Section 1.368-2(g);
WHEREAS, the reorganization 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 (the "Acquiring Fund Shares") corresponding to
the classes of outstanding shares of beneficial interest of the
Acquired Fund (the "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 and liquidation
of the Acquired Fund, as provided herein (the "Reorganization"),
all upon the terms and conditions hereinafter set forth in this
Agreement;
WHEREAS, the Acquired Fund currently owns securities that are
generally assets of the character in which the Acquiring Fund is
permitted to invest;
WHEREAS, the Board of Trustees of the Trust (the "Board") has
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 its shareholders and that the interests of the existing
shareholders of the Acquiring Fund will not be diluted as a
result of this transaction;
WHEREAS, the Board has 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 its shareholders and that
the interests of the existing shareholders of the Acquired Fund
will 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 The Acquired Fund will sell, assign, convey, transfer and
deliver all of its property and assets, as set forth in paragraph
1.2, to the Acquiring Fund; will 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 will assume all liabilities of the Acquired Fund. Such
transactions shall take place on a closing date as provided for
in paragraph 3.1 (the "Closing Date").
1.2 The property and assets of the Acquired Fund, to be sold,
assigned, conveyed, transferred and delivered to and acquired by
the Acquiring Fund, shall consist of all assets and property of
every kind and nature of the Acquired Fund, including, without
limitation, all rights, receivables (including dividend, interest
and other receivables), cash, cash equivalents, claims (whether
absolute or contingent, known or unknown), securities,
commodities and futures interests, good will and other intangible
property, any deferred or prepaid expenses and all interests,
rights, privileges and powers, the Acquired Fund owns at the
Valuation Date (as defined in paragraph 2.1) (collectively,
"Assets"). The Acquiring Fund shall assume all of the liabilities
and obligations of the Acquired Fund, including, without
limitation, all indemnification obligations of the Acquired Fund
with respect to the current and former members of the Board and
officers of the Trust, whether accrued or contingent, known or
unknown, existing at the Valuation Date (collectively,
"Liabilities"). 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 prior to the Valuation
Date.
1.4 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 of its investment
company taxable income as defined in the Code (computed without
regard to any deduction for dividends paid) and realized net
capital gain as defined in the Code (after deduction for any
available capital loss carryover), if any, for all tax periods
ending on or before the Closing Date (and treating the current
taxable year as ending on the Closing Date) such that the
Acquired Fund will have no tax liability under Section 852 or
Section 4982 for the current and any prior tax periods.
1.5 Immediately following the actions contemplated by
paragraph 1.1, 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 ("Acquired Fund
Shareholders"), on a pro rata basis within that class, the
Acquiring Fund Shares of the corresponding class received by the
Acquired Fund, pursuant to paragraph 1.1 and (b) completely
liquidate and dissolve in accordance with Massachusetts law. Such
distribution and 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 each
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 each 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.
1.6 Ownership of Acquiring Fund Shares will be shown on the
books of the Acquiring Fund's transfer agent.
1.7 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 Trust.
2. VALUATION
2.1 The value of the Assets and the amount of the Liabilities
shall be determined as of the time for calculation of net asset
value as set forth in the then-current prospectus for the
Acquired Fund, 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 established by the Board. All computations
of value and amounts shall be made by (a) State Street Bank and
Trust Company, in its capacity as accounting agent for the
Acquired Fund, or (b) in the case of securities subject to fair
valuation, in accordance with the valuation procedures of the
Trust adopted in good faith by the Board. All computations of
value and amounts pursuant to this paragraph 2.1 shall be subject
to confirmation by the Acquiring Fund's independent registered
public accounting firm.
2.2. The net asset value per share of each class of Acquiring
Fund Shares shall be determined to the nearest full cent on the
Valuation Date, using the valuation procedures established by the
Board. All computations of value shall be made by (a) State
Street Bank and Trust Company, in its capacity as accounting
agent for the Acquiring Fund, or (b) in the case of securities
subject to fair valuation, in accordance with the valuation
procedures of the Trust adopted in good faith by the Board. All
computations of value pursuant to this paragraph 2.2 shall be
subject to confirmation by the Acquired Fund's independent
registered public accounting firm.
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 Subject to the terms and conditions set forth herein, the
Closing Date shall be December 1, 2006, 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 4:00
p.m., Eastern Time or such later time on that date as the
Acquired Fund's net asset value and/or the net asset value per
share of each class of shares of the Acquiring Fund is calculated
in accordance with paragraph 2.2 and after the declaration of any
dividends. The Closing shall be held at the offices of Xxxxxxx
Xxxx & Xxxxxxxxx LLP or at such other time and/or place as the
parties may agree.
3.2 The Trust shall direct State Street Bank and Trust
Company (the "Custodian") to transfer ownership of the Assets
from the accounts of the Acquired Fund that the Custodian
maintains as custodian for the Acquired Fund to the accounts of
the Acquiring Fund that the Custodian maintains as custodian for
the Acquiring Fund and to deliver to the Trust, at the Closing, a
certificate of an authorized officer stating that (i) the Assets
of the Acquired Fund have been so transferred as of 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.
3.3 The Trust shall direct PFPC Inc., in its capacity as
transfer agent for the Acquired Fund ("Transfer Agent"), to
deliver to the 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 provide 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.
3.4 In the event that on the Valuation Date (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, in the judgment
of the Board, accurate appraisal of the value of the net assets
of the Acquired Fund or the Acquiring Fund is impracticable, 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. CONDITIONS TO THE REORGANIZATION
4.1 The Acquired Fund and the Acquiring Fund each will
operate its business in the ordinary course and shall comply in
all material respects with all applicable laws, rules and
regulations 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
other distributions, and any other distribution that may be
advisable.
4.2 The Trust will call and hold 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 represents that the Acquiring Fund
Shares to be acquired by the Acquired Fund 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 Subject to the provisions of this Agreement, the Trust
will 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.
4.5 The 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 (the "Registration Statement").
4.6 The Trust will 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.
4.7 The Trust shall not change the Trust Declaration,
prospectus or statement of additional information so as to
restrict permitted investments for the Acquiring Fund, except as
required by the Commission prior to the Closing.
4.8 The Acquiring Fund shall have executed and delivered an
assumption of the Liabilities and all such other agreements and
instruments in order to vest in and confirm (a) the Acquired
Fund's title to and possession of the Acquiring Fund Shares to be
delivered hereunder and (b) the Acquiring Fund's assumption of
all of the Liabilities and to otherwise to carry out the intent
and purpose of this Plan.
4.9 The Acquired Fund shall have delivered to the Acquiring
Fund a Statement of Assets and Liabilities of the Acquired Fund
as of the Closing Date, including a schedule of investments,
certified by the Treasurer of the Trust. The Acquired Fund shall
have executed and delivered all such assignments and other
instruments of transfer in order to vest in and confirm (a) the
Acquired Fund's title to and possession of the Acquiring Fund
Shares to be delivered hereunder and (b) the Acquiring Fund's
title to and possession of all the Assets and to otherwise to
carry out the intent and purpose of this Plan.
4.10 The Acquiring Fund and the Acquired Fund shall have
determined 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.
5 FURTHER CONDITIONS PRECEDENT TO THE REORGANIZATION
..
5.1 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 provisions of the Trust Declaration, the by-laws of the
Trust, and Massachusetts law. This condition may not be waived.
5.2 On the Closing Date, no court or governmental agency of
competent jurisdiction shall have issued any order that remains
in effect and that restrains or enjoins the Trust from completing
the transactions contemplated by this Agreement.
5.3 All consents of other parties and all other consents,
orders and permits of federal, state and local regulatory
authorities deemed necessary by the 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.
5.4 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.
5.5 The Trust 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 the
Trust, on behalf of the Acquired Fund and the Acquiring Fund, and
its authorized officers, (i) the transactions contemplated by
this Agreement will constitute a reorganization within the
meaning of Section 368(a) 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 Acquired Fund 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 (except
where investment activities of the Acquiring Fund have the effect
of reducing or eliminating the holding period with respect to an
asset); (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 the Acquired Fund Liabilities, or upon the
distribution of the Acquiring Fund Shares by the Acquired Fund to
its shareholders except for gain or loss that may be recognized
with respect to contracts subject to Section 1256 of the Code
and/or stock in a "passive foreign investment company" as defined
in Section 1297(a) of the Code; (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; and (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 therefor, provided
that he or she held the Acquired Fund Shares as capital assets.
The delivery of such opinion is conditioned upon the receipt by
Dechert LLP of representations it shall request of the Trust and
the Trust. Notwithstanding anything herein to the contrary, this
condition may not be waived.
5.6 The Trust shall have received on the Closing Date an
opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, in a form reasonably
satisfactory to the Trust, and dated as of the Closing Date,
substantially to the effect that, based upon certain facts and
certifications made by the Trust and its authorized officers:
(a) the Trust is a business trust existing under the laws of the
Commonwealth of Massachusetts; (b) the Trust, with respect to the
Acquired Fund and the Acquiring Fund, has the power as a business
trust to carry on its business as an open-end investment company
registered under the 1940 Act; (c) this Agreement has been duly
authorized, executed and, so far as known to such counsel,
delivered by the Trust, on behalf of the Acquired Fund and the
Acquiring Fund, and assuming due authorization, execution and
delivery of this Agreement by the Trust, on behalf of the
Acquiring Fund and the Acquired Fund, constitutes a valid and
legally binding obligation of the Trust, on behalf of the
Acquired Fund and the Acquiring Fund, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and laws of
general applicability relating to or affecting creditors' rights
and to general equity principles (whether in a proceeding under
equity or at law); provided that such counsel shall be entitled
to state that it expresses no opinion with respect to the
validity, binding effect or enforceability of any contractual
provisions purporting to provide indemnification of any person
for any claims, damages, liabilities or expenses which may be
limited by any applicable federal or state securities laws or as
a matter of public policy; (d) the execution and delivery of this
Agreement did not, and the transfer of the Assets for Acquiring
Fund Shares and the assumption by the Acquiring Fund of the
Liabilities pursuant to this Agreement will not, violate the
Trust Declaration or the by-laws of the Trust or any contracts or
other documents known to Xxxxxxx Xxxx & Xxxxxxxxx LLP which can
affect the rights or obligations of the Trust; (e) to the
knowledge of such counsel, all regulatory or court consents,
authorizations, approvals, orders or filings required to be
obtained or made by the Trust, on behalf of the Acquired Fund and
the Acquiring Fund, under the federal laws of the United States
or the laws of the Commonwealth of Massachusetts for the transfer
of the Assets for Acquiring Fund Shares and the assumption by the
Acquiring Fund of the Liabilities pursuant to this Agreement have
been obtained or made, except such as may be required under state
securities or blue sky laws as to which such counsel need express
no opinion; and (f) to the knowledge of such counsel, and without
any independent investigation, other than as disclosed on the
schedule provided by the Trust pursuant to paragraph 4.1 of this
Agreement, the Acquired Fund and the Acquiring Fund are not
subject to any litigation or administrative proceeding that could
reasonably be expected to have a materially adverse effect on the
operations of the Acquired Fund or the Acquiring Fund. Such
opinion may state that it is solely for the benefit of the Trust
and the Board. Such opinion may contain such assumptions and
limitations as shall be in the opinion of Xxxxxxx Xxxx &
Xxxxxxxxx LLP appropriate to render the opinions expressed
therein. Such opinion also shall include such other matters
incident to the transactions contemplated hereby as the Trust, on
behalf of the Acquiring Fund and the Acquiring Fund, may
reasonably request. With respect to all matters of Massachusetts
law, such counsel shall be entitled to state that, with the
approval of the Trust, they have relied on the opinion of Xxxxxxx
XxXxxxxxx LLP and that their opinion is subject to the same
assumptions, qualifications and limitations with respect to such
matters as are contained in the opinion of Xxxxxxx XxXxxxxxx LLP.
5.7 The Assets will include no assets which the Acquiring
Fund, by reason of limitations contained in the Trust Declaration
or in investment restrictions in effect on the Closing Date, may
not properly acquire.
6. INDEMNIFICATION
6.1 The 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
the members of the Board and its 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 those board
members and officers 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
Trust, on behalf of the Acquiring Fund, of any of its obligations
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
the Trust or the members of the Board or its officers prior to
the Closing Date, provided that such indemnification by the Trust
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.
6.2 The Trust, out of the Acquired Fund's assets and property
(including any amounts paid to the Acquired Fund pursuant to any
applicable liability insurance policies or indemnification
agreements) agrees to indemnify and hold harmless the members of
the Board and its 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 those board members and officers
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 Trust, on behalf of the
Acquired Fund, of any of its obligations 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 the Trust or the
members of the Board or its officers prior to the Closing Date,
provided that such indemnification by the Trust 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.
7. BROKER FEES AND EXPENSES
7.1 The Trust represents and warrants that there are no
brokers or finders entitled to receive any payments in connection
with the transactions provided for herein.
7.2 Xxxx Xxxxx Partners Fund Advisor, LLC will pay the
printing, proxy solicitation, mailing and postage costs of the
Reorganization. Additional costs, including expenses related to
the preparation and filing of the Registration Statement, legal
fees and auditor fees, shall be divided equally between Xxxx
Xxxxx Partners Fund Advisor, LLC, on the one hand, and the Trust,
on the other hand. 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 or would prevent the Reorganization from
qualifying as a tax-free reorganization.
8. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
The covenants to be performed after the Closing and the
obligations of the Acquiring Fund in Article 6, shall survive the
Closing. All other representations, warranties and covenants
contained in this Agreement or in any document delivered pursuant
hereto or in connection herewith shall not survive the
consummation of the transactions contemplated hereunder and shall
terminate on the Closing.
9. TERMINATION
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the
Closing Date by resolution of the Board, 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. Any such termination resolution to be
effective shall be adopted prior to the Closing Date.
10. AMENDMENTS
This Agreement may be amended, modified or supplemented in
such manner as may be deemed necessary or advisable by the
authorized officers of the Trust; provided, however, that
following the meeting of the Acquired Fund shareholders called by
the Acquired Fund pursuant to paragraph 4.2 of this Agreement, no
such amendment may have the effect of changing the provisions for
determining the number of Acquiring Fund Shares to be issued to
Acquired Fund shareholders under this Agreement to the detriment
of such shareholders without their further approval.
11 HEADINGS; COUNTERPARTS; GOVERNING LAW; SEVERABILITY;
.. ASSIGNMENT; LIMITATION OF LIABILITY
11.1 The Article headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.2 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
11.3 This Agreement shall be governed by and construed and
interpreted in accordance with the internal laws of the State of
New York.
11.4 This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns,
but no assignment or transfer hereof or of any rights or
obligations hereunder shall be made by any party without the
written consent of the other parties. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give
any person, firm or corporation, other than the parties hereto
and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
11.5 The Trust Declaration is on file with the Secretary of
State of the Commonwealth of Massachusetts. Consistent with the
Trust Declaration, the obligations of the Trust with respect to
the Acquired Fund and the Acquiring Fund entered into in the name
or on behalf of the Trust by any of its 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 the Trust,
personally, but bind only the assets of the Trust belonging to
the Acquired Fund and the Acquiring Fund, and all persons dealing
with any series or funds of the Trust must look solely to the
assets of the Trust belonging to such series or fund for the
enforcement of any claims against the Trust.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its duly authorized officer.
XXXX XXXXX PARTNERS XXXX XXXXX PARTNERS
INCOME FUNDS, on behalf of its series INCOME FUNDS, on
behalf of its series
XXXX XXXXX PARTNERS CAPITAL XXXX XXXXX PARTNERS DIVIDEND
AND INCOME FUND AND INCOME FUND
By: _______________________________ By:
________________________________
Name: R. Xxx Xxxxxx Name: R. Xxx
Xxxxxx
Title: Chairman, President and Chief Title: Chairman,
President and Chief
Executive Officer Executive Officer
Solely for purposes of paragraph 7.2 of this Agreement:
XXXX XXXXX PARTNERS FUND ADVISOR, LLC
By ______________________________________________
: __________
Name: R. Xxx Xxxxxx
Title: President and Chief Executive Officer
SCHEDULE 4.1
NONE
SCHEDULE 4.2
NONE
