AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the
Agreement) is made as of this ___ day of
____________, 2010, by and between SEI Asset
Allocation Trust, a Massachusetts business trust
(the Trust), on behalf of its _____________Fund (the
Acquired Fund), and the Trust, on behalf of its
_________________ Fund (the Surviving Fund and,
together with the Acquired Fund, the Funds). SEI
Investments Management Corporation (SIMC) joins this
Agreement solely for purposes of Sections 14(b) and
18(b). Except for the Acquired Fund and Surviving
Fund, no other series of the Trust are parties to
this Agreement. The Trust has its principal place
of business at 0 Xxxxxxx Xxxxxx Xxxxx, Xxxx,
Xxxxxxxxxxxx, 00000.
WHEREAS, the Trust was established on October
20, 1995 under the laws of the Commonwealth of
Massachusetts as a business trust under a
Declaration of Trust, and the Trust is an open-end
management investment company registered under the
Investment Company Act of 1940, as amended (the 1940
Act);
WHEREAS, the Acquired Fund and the Surviving
Fund are each a separate investment series of the
Trust and the Acquired Fund owns securities that
generally are assets of the character in which the
Surviving Fund is permitted to invest;
WHEREAS, each of the Acquired Fund and the
Surviving Fund is authorized to issue its shares of
beneficial interest;
WHEREAS, the Funds intend this Agreement to
be, and adopt it as, a plan of reorganization within
the meaning of the regulations under Section 368(a)
of the Internal Revenue Code of 1986, as amended
(the Code); and
WHEREAS, the Trustees of the Trust, including
a majority of Trustees that are not interested
persons, as such term is defined in section 2(a)(19)
of the 1940 Act, of the Trust have determined that
the transactions contemplated herein are in the best
interests of the Funds and that the interests of the
Funds respective existing shareholders will not be
diluted as a result;
NOW, THEREFORE, in consideration of the mutual
promises herein contained and intending to be
legally bound hereby, the parties hereto hereby
agree to effect the transfer of all of the assets of
the Acquired Fund solely in exchange for the
assumption by the Surviving Fund of all of the
liabilities of the Acquired Fund and shares of
beneficial interest of the Surviving Fund (Surviving
Fund Shares) followed by the distribution, at the
Closing Date (as defined in Section 13 of this
Agreement), of such Surviving Fund Shares to the
holders of shares of the Acquired Fund (Acquired
Fund Shares) on the terms and conditions hereinafter
set forth in liquidation of the Acquired Fund. The
parties hereto hereby covenant and agree as follows:
1. Plan of Reorganization. At the Closing Date,
the Acquired Fund shall assign, deliver and
otherwise transfer all of its assets and good and
marketable title thereto, and assign all of the
liabilities as are set forth in a statement of
assets and liabilities, to be prepared as of the
Valuation Time (as defined in Section 5 of this
Agreement) (the Statement of Assets and
Liabilities), to the Surviving Fund, free and clear
of all liens, encumbrances and adverse claims except
as provided in this Agreement, and the Surviving
Fund shall acquire all assets, and shall assume all
liabilities of the Acquired Fund, and the Surviving
Fund shall deliver to the Acquired Fund a number of
Surviving Fund Shares (both full and fractional)
equivalent in value to the Acquired Fund Shares
outstanding immediately prior to the Closing Date.
Shareholders of record of Class A Shares of the
Acquired Fund at the Closing Date shall be credited
with full and fractional Class A Shares of the
Surviving Fund. Shareholders of record of Class D
Shares of the Acquired Fund at the Closing Date
shall be credited with full and fractional Class D
Shares of the Surviving Fund. Shareholders of
record of Class I Shares of the Acquired Fund at the
Closing Date shall be credited with full and
fractional Class I Shares of the Surviving Fund.
The assets and liabilities of the Acquired Fund
shall be exclusively assigned to and assumed by the
Surviving Fund. All debts, liabilities, obligations
and duties of the Acquired Fund, to the extent that
they exist at or after the Closing Date, shall after
the Closing Date attach to the Surviving Fund and
may be enforced against the Surviving Fund to the
same extent as if the same had been incurred by the
Surviving Fund. The events outlined in this Section
1 are referred to herein collectively as the
Reorganization.
2. Transfer of Assets.
(a) The assets of the Acquired Fund to be
acquired by the Surviving Fund and allocated thereto
shall include, without limitation, all cash, cash
equivalents, securities, receivables (including
interest and dividends receivable) as set forth in
the Statement of Assets and Liabilities, as well as
any claims or rights of action or rights to register
shares under applicable securities laws, any books
or records of the Acquired Fund and other property
owned by the Acquired Fund at the Closing Date.
(b) The Surviving Fund will, within a
reasonable time prior to the Closing Date, furnish
the Acquired Fund with a list of the securities, if
any, on the Acquired Funds list referred to in the
second sentence of this paragraph that do not
conform to the Surviving Funds investment
objectives, policies, and restrictions. The
Acquired Fund will, within a reasonable period of
time (not less than 30 days) prior to the Closing
Date, furnish the Surviving Fund with a list of its
portfolio securities and other investments. In the
event that the Acquired Fund holds any investments
that the Surviving Fund may not hold, the Acquired
Fund, if requested by the Surviving Fund, will
dispose of such securities prior to the Closing
Date. In addition, if it is determined that the
Acquired Fund and the Surviving Fund portfolios,
when aggregated, would contain investments exceeding
certain percentage limitations imposed upon the
Surviving Fund with respect to such investments, the
Acquired Fund, if requested by the Surviving Fund,
will dispose of a sufficient amount of such
investments as may be necessary to avoid violating
such limitations as of the Closing Date.
Notwithstanding the foregoing, nothing herein will
require the Acquired Fund to dispose of any
investments or securities if, in the reasonable
judgment of the Acquired Fund, such disposition
would either violate the Acquired Funds fiduciary
duty to its shareholders or adversely affect the
tax-free nature of the Reorganization.
(c) The Acquired Fund shall direct U.S.
Bank, N.A., as custodian for the Acquired Fund (the
Custodian), to deliver, at or prior to the Closing
Date, a certificate of an authorized officer stating
that: (i) assets have been delivered in proper form
to the Surviving Fund within two business days prior
to or at the Closing Date, and (ii) all necessary
taxes in connection with the delivery of the assets,
including all applicable foreign, 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
transferred and delivered by the Acquired Fund prior
to or as of the Closing Date for the account of the
Surviving Fund duly endorsed in proper form for
transfer in such condition as to constitute good
delivery thereof. The Custodian shall deliver prior
to or as of the Closing Date by book entry, in
accordance with the customary practices of any
securities depository, as defined in Rule 17f-4
under the 1940 Act, in which the Acquired Funds
assets are deposited, the Acquired Funds assets
deposited with such depositories. The cash to be
transferred by the Acquired Fund shall be delivered
by wire transfer of federal funds prior to or as of
the Closing Date.
(d) The Acquired Fund shall direct SEI
Global Funds Services (the Transfer Agent), on
behalf of the Acquired Fund, to deliver prior to or
as of the Closing Date a certificate of an
authorized officer stating that its records contain
the names and addresses of the holders of the
Acquired Fund Shares and the number and percentage
ownership of outstanding Class A, D and I Shares s
owned by each shareholder immediately prior to the
Closing Date. The Surviving Fund shall issue and
deliver a confirmation evidencing the Surviving Fund
Shares to be credited at the Closing Date to the
Secretary of the Acquired Fund, or provide evidence
that the Surviving Fund Shares have been credited to
the Acquired Funds account on the books of the
Surviving Fund. No later than the Closing Date,
each party shall deliver to the other such xxxx of
sale, checks, assignments, share certificates, if
any, receipts or other documents as such other party
or its counsel may reasonably request.
3. Calculations.
(a) The number of full and fractional Class
A, D and I Shares of Surviving Fund Shares to be
issued in exchange for the Acquired Funds assets
pursuant to Section 1 hereof shall be determined by
multiplying the outstanding shares of the Acquired
Fund by the ratio computed by dividing the net asset
value per share of the Acquired Fund for each class
by the net asset value per share of the Surviving
Fund for each class on the Valuation Date,
determined in accordance with Section 3(b).
Shareholders of record of Class A Shares of the
Acquired Fund at the Closing Date shall be credited
with full and fractional Class A Shares of the
Surviving Fund. Shareholders of record of Class D
Shares of the Acquired Fund at the Closing Date
shall be credited with full and fractional Class D
Shares of the Surviving Fund. Shareholders of
record of Class I Shares of the Acquired Fund at the
Closing Date shall be credited with full and
fractional Class I Shares of the Surviving Fund.
(b) The net asset value per share of the
Surviving Fund Shares shall be the net asset value
per share computed as of the time at which the
Surviving Funds net asset value is calculated at the
Valuation Time, in accordance with the pricing
policies and procedures adopted by the Trust as
described in the then current prospectus and
statement of additional information of the Funds
under the Securities Act of 0000 (xxx 0000 Xxx).
4. Valuation of Assets. The value of the assets
of the Acquired Fund shall be the value of such
assets computed as of the time at which the Acquired
Funds net asset value is calculated at the Valuation
Time. The net asset value of the assets of the
Acquired Fund to be transferred to the Surviving
Fund shall be computed by the Acquired Fund. In
determining the value of the securities transferred
by the Acquired Fund to the Surviving Fund, each
security shall be priced in accordance with the
pricing policies and procedures adopted by the Trust
as described in the then current prospectus and
statement of additional information of the Funds
under the 1933 Act. For such purposes, price
quotations and the security characteristics relating
to establishing such quotations shall be determined
by the Acquired Fund, provided that such
determination shall be subject to the approval of
the Surviving Fund. The Acquired Fund and the
Surviving Fund agree to use all commercially
reasonable efforts to resolve, prior to the
Valuation Time, any material pricing differences.
5. Valuation Time. The valuation time shall be
4:00 p.m., Eastern Time, on _______ __, 2010, or
such earlier or later date and time as may be
mutually agreed in writing by an authorized officer
of the Funds (the Valuation Time). Notwithstanding
anything herein to the contrary, in the event that
at the Valuation Time, (a) the New York Stock
Exchange shall be closed to trading or trading
thereon 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
Trust, accurate appraisal of the value of the net
assets of the Acquired Fund is impracticable, the
Valuation Time shall be postponed until the first
business day after the day when trading shall have
been fully resumed without restriction or
disruption, reporting shall have been restored and
accurate appraisal of the value of the net assets of
the Acquired Fund is practicable.
6. Liquidation of the Acquired Fund and
Cancellation of Shares. At the Closing Date, the
Acquired Fund will liquidate and the Surviving Fund
Shares (both full and fractional) received by the
Acquired Fund will be distributed to the
shareholders of record of the Acquired Fund as of
the Closing Date in exchange for their Acquired Fund
Shares and in complete liquidation of the Acquired
Fund. Such liquidation and distribution will be
accompanied by the establishment of an open account
on the share records of the Surviving Fund in the
name of each shareholder of the Acquired Fund that
represents the respective number and class of
Surviving Fund Shares due such shareholder. All of
the issued and outstanding shares of the Acquired
Fund shall be cancelled on the books of the Trust at
the Closing Date and shall thereafter represent only
the right to receive Surviving Fund Shares. The
Acquired Funds transfer books shall be closed
permanently. The Trust also shall take any and all
other steps as shall be necessary and proper to
effect a complete termination of the Acquired Fund.
7. Representations and Warranties of the
Surviving Fund. The Surviving Fund represents and
warrants to the Acquired Fund as follows:
(a) The Surviving Fund has been duly
established as a separate investment series of the
Trust, which is a business trust duly organized and
validly existing under the Commonwealth of
Massachusetts.
(b) The Trust is registered as an investment
company classified as a management company of the
open-end type, and its registration with the
Securities and Exchange Commission (the Commission)
as an investment company under the 1940 Act is in
full force and effect.
(c) The authorized capital of the Trust
consists of an unlimited number of shares of
beneficial interest. The Class A, D and I Shares of
the Surviving Fund have been duly established and
represent a fractional undivided interest in the
Surviving Fund. The issued and outstanding Class A,
D and I Shares of the Surviving Fund are duly
authorized, validly issued, fully paid and
nonassessable. There are no outstanding options,
warrants or other rights of any kind to acquire from
the Trust any shares of any class or equity
interests of the Surviving Fund or securities
convertible into or exchangeable for, or which
otherwise confer on the holder thereof any right to
acquire, any such additional shares, nor is the
Trust committed to issue any share appreciation or
similar rights or options, warrants, rights or
securities in connection with the Surviving Fund.
The Surviving Fund Shares to be issued and delivered
to the Acquired Fund, for the account of the
Acquired Funds shareholders, pursuant to the terms
of this Agreement will, at the Closing Date, have
been duly authorized and, when so issued and
delivered, will be duly and validly issued Surviving
Fund Shares, and will be fully paid and
nonassessable.
(d) The execution, delivery and performance
of this Agreement by the Trust, on behalf of the
Surviving Fund, and the consummation of the
transactions contemplated herein have been duly and
validly authorized by the Trusts Board of Trustees
and no other proceedings by the Surviving Fund are
necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by
the Trust, on behalf of the Surviving Fund, and
assuming due authorization, execution and delivery
by the Trust, on behalf of the Acquired Fund, is a
legal, valid and binding obligation of the Trust, as
it relates to the Surviving 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.
The Surviving Fund is not a party to or obligated
under any charter, by-law, indenture or contract
provision or any other commitment or obligation, or
subject to any order or decree, which would be
violated by its executing and carrying out this
Agreement.
(e) The audited financial statements of the
Surviving Fund as of ______________ are in
accordance with generally accepted accounting
principles consistently applied, and such statements
(copies of which have been furnished to the Acquired
Fund) fairly reflect the financial condition of the
Surviving Fund as of such date, and there are no
known contingent liabilities of the Surviving Fund
as of such date not disclosed therein.
(f) Since ___________________, there has not
been any material adverse change in the Surviving
Funds financial condition, assets, liabilities, or
business other than changes occurring in the
ordinary course of business, or any incurrence by
the Surviving Fund of indebtedness maturing more
than one year from the date such indebtedness was
incurred, except as otherwise disclosed to and
accepted by the Acquired Fund. For purposes of this
paragraph (f), a decline in the net asset value of
the Surviving Fund shall not constitute a material
adverse change.
(g) The current prospectus and statement of
additional information of the Surviving Fund conform
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 do 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
misleading.
(h) Except as otherwise disclosed in writing
and accepted by the Acquired Fund, no litigation,
administrative proceeding or investigation of or
before any court or governmental body is presently
pending or to its knowledge threatened against the
Surviving Fund or any of its properties or assets,
which, if adversely determined, would materially and
adversely affect its financial condition and the
conduct of its business or the ability of the
Surviving Fund to carry out the transactions
contemplated by this Agreement. The Surviving Fund
knows of no facts that 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 that materially and adversely affects its
business or its ability to consummate the
transactions contemplated herein.
(i) Except for contracts and agreements
disclosed to the Acquired Fund, under which no
default exists, the Surviving Fund is not a party to
or subject to any material contract, debt
instrument, plan, lease, franchise, license or
permit of any kind or nature whatsoever with respect
to the Surviving Fund.
(j) As of the Closing Date, all Federal and
other tax returns, information returns and other
tax-related reports of the Surviving Fund required
by law to have been filed by such date (including
extensions) shall have been filed, and all other
taxes shall have been paid so far as due, or
provision shall have been made for the payment
thereof, and to the best of the Surviving Funds
knowledge, no such return is currently under audit
by the Internal Revenue Service or any state or
local tax authority, and no assessment has been
asserted with respect to any of such returns.
(k) For each taxable year of its operation,
the Surviving Fund has met the requirements of
Subchapter M of the Code for qualification as a
regulated investment company and has elected to be
treated as such, and has been eligible to and has
computed its federal income tax under Section 852 of
the Code. The Surviving Fund currently qualifies,
and shall continue to qualify, as a regulated
investment company under the Code.
(l) The Surviving Fund agrees to use all
reasonable efforts to obtain any necessary approvals
and authorizations required by the 1933 Act, the
Securities Exchange Act of 0000 (xxx 0000 Xxx), the
1940 Act, and such of the state Blue Sky or
securities laws as it may deem appropriate in order
to continue its operations after the Closing Date.
(m) The information statement and prospectus
and statement of additional information
(collectively, the Information Statement/Prospectus)
to be included in the Surviving Funds registration
statement on Form N-14 (the Registration Statement)
and filed in connection with this Agreement, and the
documents incorporated therein by reference and any
amendment or supplement thereto insofar as they
relate to the Surviving Fund, each comply or will
comply in all material respects with the applicable
requirements of the 1933 Act, 1934 Act and the 1940
Act and the applicable rules and regulations of the
Commission thereunder on the effective date of such
Registration Statement. Each of the Information
Statement/Prospectus, Registration Statement and the
documents incorporated therein by reference and any
amendment or supplement thereto, insofar as it
relates to the Surviving Fund, does not contain any
untrue statement of a material fact or omit to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not materially
misleading on the effective date of such
Registration Statement; provided, however, that the
Surviving Fund makes no representations or
warranties as to the information contained in the
Information Statement/Prospectus, Registration
Statement and the documents incorporated therein by
reference and any amendment or supplement thereto in
reliance upon and in conformity with information
relating to the Acquired Fund and furnished by the
Acquired Fund to the Surviving Fund specifically for
use in connection with the Information
Statement/Prospectus, Registration Statement and the
documents incorporated therein by reference and any
amendment or supplement thereto.
8. Representations and Warranties of the Acquired
Fund. The Acquired Fund represents and warrants to
the Surviving Fund as follows:
(a) The Acquired Fund has been duly
established as a separate investment series of the
Trust, which is a business trust duly organized and
validly existing under the Commonwealth of
Massachusetts.
(b) The Trust is registered as an investment
company classified as a management company of the
open-end type, and its registration with the
Commission as an investment company under the 1940
Act is in full force and effect.
(c) The authorized capital of the Trust
consists of an unlimited number of shares of
beneficial interest. The Class A, D and I Shares of
the Acquired Fund have been duly established and
represent a fractional undivided interest in the
Acquired Fund. The issued and outstanding Class A,
D and I of the Acquired Fund are, and at the Closing
Date will be, duly authorized, validly issued, fully
paid and nonassessable. All of the issued and
outstanding shares of the Acquired Fund will, at the
time of the Closing Date, be held by the persons and
in the amounts set forth in the records of the
Transfer Agent as provided in Section 2(d). There
are no outstanding options, warrants or other rights
of any kind to acquire from the Trust any shares of
any class or equity interests of the Acquired Fund
or securities convertible into or exchangeable for,
or which otherwise confer on the holder thereof any
right to acquire, any such additional shares, nor is
the Trust committed to issue any share appreciation
or similar rights or options, warrants, rights or
securities in connection with the Acquired Fund.
(d) The audited financial statements of the
Acquired Fund as of _______________ are in
accordance with generally accepted accounting
principles consistently applied, and such statements
(copies of which have been furnished to the
Surviving Fund) fairly reflect the financial
condition of the Acquired Fund as of such date, and
there are no known contingent liabilities of the
Acquired Fund as of such date not disclosed therein.
(e) Since ________________, 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 maturing more than
one year from the date such indebtedness was
incurred, except as otherwise disclosed to and
accepted by the Surviving Fund. For purposes of
this paragraph (e), a decline in the net asset value
of the Acquired Fund shall not constitute a material
adverse change.
(f) The Acquired Fund will have, at the
Closing Date, good and marketable title to, and full
right, power and authority to sell, assign, transfer
and deliver, the assets to be transferred to the
Surviving Fund pursuant to Section 1. Upon delivery
and payment for such assets, the Surviving Fund will
have good and marketable title to such assets
without restriction on the transfer thereof free and
clear of all liens, encumbrances and adverse claims
other than as disclosed to the Surviving Fund and
accepted by the Surviving Fund.
(g) The execution, delivery and performance
of this Agreement by the Trust, on behalf of the
Acquired Fund, and the consummation of the
transactions contemplated herein have been duly and
validly authorized by the Trusts Board of Trustees
and no other proceedings by the Acquired Fund are
necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by
the Trust, on behalf of the Acquired Fund, and
assuming due authorization, execution and delivery
by the Trust, on behalf of the Surviving Fund, is a
legal, valid and binding obligation of the Trust, as
it relates to 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.
The Acquired Fund is not a party to or obligated
under any charter, by-law, indenture or contract
provision or any other commitment or obligation, or
subject to any order or decree, which would be
violated by its executing and carrying out this
Agreement.
(h) The current prospectus and statement of
additional information of the Acquired Fund conform
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 do 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
misleading.
(i) Except as otherwise disclosed in writing
and accepted by the Surviving Fund, no litigation,
administrative proceeding or investigation of or
before any court or governmental body is presently
pending or to its knowledge threatened against the
Acquired Fund or any of its properties or assets,
which, if adversely determined, would materially and
adversely affect its financial condition and the
conduct of its business or the ability of the
Acquired Fund to carry out the transactions
contemplated by this Agreement. The Acquired Fund
knows of no facts that 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 that materially and adversely affects its
business or its ability to consummate the
transactions contemplated herein.
(j) Except for contracts and agreements
disclosed to the Surviving Fund, under which no
default exists, the Acquired Fund is not a party to
or subject to any material contract, debt
instrument, plan, lease, franchise, license or
permit of any kind or nature whatsoever with respect
to the Acquired Fund.
(k) As of the Closing Date, all Federal and
other tax returns, information returns and other
tax-related reports of the Acquired Fund required by
law to have been filed by such date (including
extensions) shall have been filed, and all other
taxes shall have been paid so far as due, or
provision shall have been made for the payment
thereof, and to the best of the Acquired Funds
knowledge, no such return is currently under audit
by the Internal Revenue Service or any state or
local tax authority, and no assessment has been
asserted with respect to any of such returns.
(l) For each taxable year of its operation,
the Acquired Fund has met the requirements of
Subchapter M of the Code for qualification as a
regulated investment company and has elected to be
treated as such, and has been eligible to and has
computed its federal income tax under Section 852 of
the Code. The Acquired Fund currently qualifies,
and shall continue to qualify, as a regulated
investment company under the Code.
(m) The Information Statement/Prospectus to
be included in the Registration Statement and filed
in connection with this Agreement, and the documents
incorporated therein by reference and any amendment
or supplement thereto insofar as they relate to the
Acquired Fund, each comply or will comply in all
material respects with the applicable requirements
of the 1933 Act, 1934 Act and the 1940 Act and the
applicable rules and regulations of the Commission
thereunder on the effective date of such
Registration Statement. Each of the Information
Statement/Prospectus, Registration Statement and the
documents incorporated therein by reference and any
amendment or supplement thereto, insofar as it
relates to the Acquired Fund, does not contain any
untrue statement of a material fact or omit to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not materially
misleading on the effective date of such
Registration Statement; provided, however, that the
Acquired Fund makes no representations or warranties
as to the information contained in the Information
Statement/Prospectus, Registration Statement and the
documents incorporated therein by reference and any
amendment or supplement thereto in reliance upon and
in conformity with information relating to the
Surviving Fund and furnished by the Surviving Fund
to the Acquired Fund specifically for use in
connection with the Information
Statement/Prospectus, Registration Statement and the
documents incorporated therein by reference and any
amendment or supplement thereto.
9. Covenants of the Surviving Fund and the
Acquired Fund.
(a) The Surviving Fund and the Acquired 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 customary dividends and
distributions.
(b) The Acquired Fund will assist the
Surviving Fund in obtaining such information as the
Surviving Fund reasonably requests concerning the
beneficial ownership of the Acquired Fund shares.
(c) Subject to the provisions of this
Agreement, the Surviving Fund and the Acquired Fund
will each take, or cause to be taken, all action,
and do or cause to be done, all things reasonably
necessary, proper or advisable to consummate and
make effective the transactions contemplated by this
Agreement, including any actions required to be
taken after the Closing Date.
(d) As promptly as practicable, but in any
case within sixty days after the Closing Date, the
Acquired Fund shall furnish the Surviving Fund, in
such form as is reasonably satisfactory to the
Surviving Fund, a statement of the earnings and
profits of the Acquired Fund for federal income tax
purposes that will be carried over by the Surviving
Fund as a result of Section 381 of the Code, and
certified by the Acquired Funds President, Vice
President or Treasurer.
10. Conditions Precedent to Obligations of the
Surviving Fund. The obligations of the Surviving
Fund to complete the transactions provided for
herein shall be subject, at its election, to the
performance by the Acquired Fund of all the
obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto,
the following conditions:
(a) All representations and warranties of
the 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. On
the Closing Date, the Surviving Fund shall have
received a certificate from the President or Vice
President of the Acquired Fund, dated as of such
date, certifying on behalf of the Acquired Fund that
as of such date that the conditions set forth in
this clause (a) have been met.
(b) The Surviving Fund shall have received
an opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, dated as
of the Closing Date, in a form reasonably
satisfactory to the Surviving Fund, covering the
following points:
(i) The Acquired Fund is a separate
investment series of the Trust, which is duly
organized and validly existing under the laws of the
Commonwealth of Massachusetts and has the trust
power to own all of its properties and assets and,
to the knowledge of such counsel, to carry on its
business as presently conducted.
(ii) The Trust is registered as an
investment company under the 1940 Act, and, to such
counsels knowledge, such registration with the
Commission as an investment company under the 1940
Act is in full force and effect.
(iii) This Agreement has been duly
authorized, executed and delivered by the Acquired
Fund and, assuming due authorization, execution, and
delivery of this Agreement by the Surviving Fund, is
a valid and binding obligation of the Acquired Fund
enforceable against the Acquired Fund in accordance
with its terms, subject as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors
rights generally and to general equity principles.
(iv) The execution and delivery of the
Agreement did not, and the consummation of the
transactions contemplated in the Agreement will not,
conflict with or result in a material breach of the
terms or provisions of, or constitute a material
default under, the then-current declaration of trust
or by-laws of the Acquired Fund, or, to the
knowledge of such counsel (without any independent
investigation), any material agreement or instrument
to which the Acquired Fund is a party or by which
any properties belonging to the Acquired Fund may be
bound.
(v) To the knowledge of such counsel,
no consent, approval, authorization or order of any
court or governmental authority of the United States
or the Commonwealth of Massachusetts is required for
consummation by the Acquired Fund of the
transactions contemplated herein, except such as
have been obtained under the 1933 Act, 1934 Act and
the 1940 Act, and as may be required under state
securities laws or where the failure to obtain any
such consent, approval, order or authorization would
not have a material adverse effect on the operations
of the Acquired Fund or the consummation of the
transactions contemplated by this Agreement.
(vi) To the knowledge of such counsel,
no litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or threatened as to the
Acquired Fund or any of its respective properties or
assets and the Acquired Fund is not a party to nor
subject to the provisions of any order, decree or
judgment of any court or governmental body, which
materially and adversely affects its business other
than as previously disclosed in the Registration
Statement.
(vii) Assuming that a consideration
therefor of not less than the net asset value
thereof has been paid, and assuming that such shares
were issued in accordance with the terms of the
Acquired Funds registration statement, or any
amendment or supplement thereto, in effect at the
time of such issuance, all issued and outstanding
shares of the Acquired Fund are legally issued and
fully paid and non-assessable (except that
shareholders of the Acquired Fund may under certain
circumstances be held personally liable for its
obligations).
Such opinion may contain such assumptions and
limitations as shall be in the opinion of such
counsel appropriate to render the opinions expressed
therein. In addition, such counsel shall be entitled
to state that they have relied upon officers
certificates and certificates of public officials in
rendering their opinion.
(c) The Acquired Fund shall have delivered
to the Surviving Fund at the Closing Date the
Acquired Funds Statement of Assets and Liabilities,
prepared in accordance with generally accepted
accounting principles consistently applied, together
with a certificate of the Treasurer or Assistant
Treasurer of the Acquired Fund as to the aggregate
asset value of the Acquired Funds portfolio
securities.
(d) On the Closing Date, the Acquired Fund
shall have performed and complied in all material
respects with each of its agreements and covenants
required by this Agreement to be performed or
complied with by the Acquired Fund prior to or at
the Closing Date and the Surviving Fund shall have
received a certificate from the President or Vice
President of the Acquired Fund, dated as of such
date, certifying on behalf of the Acquired Fund that
the conditions set forth in this clause (d) have
been and continue to be, satisfied.
11. Conditions Precedent to Obligations of the
Acquired Fund. The obligations of the Acquired Fund
to consummate the transactions provided for herein
shall be subject, at its election, to the
performance by the Surviving 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:
(a) All representations and warranties of
the Surviving 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. On
the Closing Date, the Acquired Fund shall have
received a certificate from the President or Vice
President of the Surviving Fund, dated as of such
date, certifying on behalf of Surviving Fund that as
of such date that the conditions set forth in this
clause (a) have been met.
(b) The Acquired Fund shall have received an
opinion of Xxxxxx, Xxxxx & Bockius LLP, dated as of
the Closing Date, in a form reasonably satisfactory
to the Acquired Fund, covering the following points:
(i) The Surviving Fund is a separate
investment series of the Trust, which is duly
organized and validly existing under the laws of the
Commonwealth of Massachusetts and has the trust
power to own all of its properties and assets and,
to the knowledge of such counsel, to carry on its
business as presently conducted.
(ii) The Trust is registered as an
investment company under the 1940 Act, and, to such
counsels knowledge, such registration with the
Commission as an investment company under the 1940
Act is in full force and effect.
(iii) This Agreement has been duly
authorized, executed and delivered by the Surviving
Fund and, assuming due authorization, execution, and
delivery of this Agreement by the Acquired Fund, is
a valid and binding obligation of the Surviving Fund
enforceable against the Surviving Fund in accordance
with its terms, subject as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors
rights generally and to general equity principles.
(iv) The execution and delivery of the
Agreement did not, and the consummation of the
transactions contemplated in the Agreement will not,
conflict with or result in a material breach of the
terms or provisions of, or constitute a material
default under, the then-current declaration of trust
or by-laws of the Surviving Fund, or, to the
knowledge of such counsel (without any independent
investigation), any material agreement or instrument
to which the Surviving Fund is a party or by which
any properties belonging to the Surviving Fund may
be bound.
(v) To the knowledge of such counsel,
no consent, approval, authorization or order of any
court or governmental authority of the United States
or the Commonwealth of Massachusetts is required for
consummation by the Surviving Fund of the
transactions contemplated herein, except such as
have been obtained under the 1933 Act, 1934 Act and
the 1940 Act, and as may be required under state
securities laws or where the failure to obtain any
such consent, approval, order or authorization would
not have a material adverse effect on the operations
of the Surviving Fund or the consummation of the
transactions contemplated by this Agreement.
(vi) To the knowledge of such counsel,
no litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or threatened as to the
Surviving Fund or any of its respective properties
or assets and the Surviving Fund is not a party to
nor subject to the provisions of any order, decree
or judgment of any court or governmental body, which
materially and adversely affects its business other
than as previously disclosed in the Registration
Statement.
(vii) Assuming that a consideration
therefor not less than the net asset value thereof
has been paid, the Surviving Fund Shares to be
issued and delivered to the Acquired Fund on behalf
of the Acquired Fund shareholders as provided by
this Agreement are duly authorized and upon such
delivery will be legally issued and outstanding and
fully paid and nonassessable, and no shareholder of
the Surviving Fund has any statutory preemptive
rights in respect thereof (except that shareholders
of the Surviving Fund may under certain
circumstances be held personally liable for its
obligations).
(viii) The Registration Statement,
to the knowledge of such counsel, has been declared
effective by the Commission and no stop order under
the 1933 Act pertaining thereto has been issued.
Such opinion may contain such assumptions and
limitations as shall be in the opinion of such
counsel appropriate to render the opinions expressed
therein. In addition, such counsel shall be
entitled to state that they have relied upon
officers certificates and certificates of public
officials in rendering their opinion.
(c) On the Closing Date, the Surviving Fund
shall have performed and complied in all material
respects with each of its agreements and covenants
required by this Agreement to be performed or
complied with by the Surviving Fund prior to or at
the Closing Date and the Acquired Fund shall have
received a certificate from the President or Vice
President of the Surviving Fund, dated as of such
date, certifying on behalf of the Surviving Fund
that the conditions set forth in this clause (c)
have been, and continue to be, satisfied.
12. Further Conditions Precedent to Obligations of
the Acquired Fund and the Surviving Fund. If any of
the conditions set forth below do not exist on or
before the Closing Date with respect to the Funds,
the other party to this Agreement shall, at its
option, not be required to consummate the
transactions contemplated by this Agreement.
(a) The Trusts Board of Trustees, on behalf
of each of the Acquired Fund and Surviving Fund,
shall have approved this Agreement.
(b) On the Closing Date, the Commission
shall not have issued an unfavorable report under
Section 25(b) of the 1940 Act, nor instituted any
proceeding seeking to enjoin the consummation of the
transactions contemplated by this Agreement under
Section 25(c) of the 1940 Act and no action, suit or
other proceeding shall be threatened or pending
before any court or governmental agency in which it
is sought to restrain or prohibit, or obtain damages
or other relief in connection with, this Agreement
or the transactions contemplated herein.
(c) All required consents of other parties
and all other consents, orders, and permits of
federal, state and local regulatory authorities
(including those of the Commission and of state Blue
Sky securities authorities, including any necessary
no-action positions of and exemptive orders from
such federal and state authorities) to permit
consummation 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 Surviving Fund or the
Acquired Fund, provided that either party hereto may
for itself waive any of such conditions.
(d) The Registration Statement shall have
become effective under the 1933 Act, and no stop
orders suspending the effectiveness of the
Registration Statement shall have been issued and,
to the best knowledge of the parties hereto, no
investigation or proceeding for that purpose shall
have been instituted or be pending, threatened or
contemplated under the 1933 Act.
(e) The Funds shall have received a
favorable opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP
addressed to the Surviving Fund and the Acquired
Fund substantially to the effect that with respect
to the Acquired Fund and the Surviving Fund for
Federal income tax purposes:
(i) The Reorganization will
constitute a tax-free reorganization within the
meaning of Section 368(a)(1)(F) of the Code, and the
Acquired Fund and Surviving 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 Acquired Fund upon the transfer of
all of its assets to the Surviving Fund in exchange
solely for the Surviving Fund Shares and the
assumption by the Surviving Fund of the Acquired
Funds liabilities or upon the distribution of the
Surviving Fund Shares to the Acquired Funds
shareholders in exchange for their shares of the
Acquired Fund.
(iii) No gain or loss will be
recognized by the Surviving Fund upon the receipt by
it of all of the assets of the Acquired Fund in
exchange solely for Surviving Fund Shares and the
assumption by the Surviving Fund of the liabilities
of the Acquired Fund.
(iv) The adjusted tax basis of
the assets of the Acquired Fund received by the
Surviving Fund will be the same as the adjusted tax
basis of such assets to the Acquired Fund
immediately prior to the Reorganization.
(v) The holding period of the
assets of the Acquired Fund received by the
Surviving Fund will include the holding period of
those assets in the hands of the Acquired Fund
immediately prior to the Reorganization.
(vi) No gain or loss will be
recognized by the shareholders of the Acquired Fund
upon the exchange of their Acquired Fund shares for
the Surviving Fund Shares (including fractional
shares to which they may be entitled) and the
assumption by the Surviving Fund of the liabilities
of the Acquired Fund.
(vii) The aggregate adjusted tax
basis of the Surviving Fund Shares received by the
shareholders of the Acquired Fund (including
fractional shares to which they may be entitled)
pursuant to the Reorganization will be the same as
the aggregate tax basis of the Acquired Fund shares
held by the Acquired Funds shareholders immediately
prior to the Reorganization.
(viii) The holding period of
the Surviving Fund Shares received by the
shareholders of the Acquired Fund (including
fractional shares to which they may be entitled)
will include the holding period of the Acquired Fund
shares surrendered in exchange therefor, provided
that the Acquired Fund shares were held as a capital
asset as of the Closing Date.
(ix) For purposes of Section 381
of the Code, the Surviving Fund will be treated as
the same corporation as the Acquired Fund and the
tax attributes of the Acquired Fund enumerated in
Section 381(c) of the Code will be taken into
account by the Surviving Fund as if there had been
no reorganization.
Such opinion shall be based on customary
assumptions, limitations and such representations as
Xxxxxx, Xxxxx & Bockius LLP may reasonably request,
and the Acquired Fund and Surviving Fund will
cooperate to make and certify the accuracy of such
representations. Such opinion may contain such
assumptions and limitations as shall be in the
opinion of such counsel appropriate to render the
opinions expressed therein. Notwithstanding
anything herein to the contrary, neither the
Surviving Fund nor the Acquired Fund may waive the
conditions set forth in this Section 12(e).
13. Closing Date of the Reorganization. The
exchange of the Acquired Funds assets for the
Surviving Fund Shares shall be effective as of
opening of business on [_____ __, 2010], or at such
other time and date as fixed by the mutual consent
of the parties (the Closing Date).
14. Termination.
(a) This Agreement may be terminated by the
mutual agreement of the Surviving Fund and the
Acquired Fund. In addition, either the Surviving
Fund or the Acquired Fund may at its option
terminate this Agreement at or prior to the Closing
Date:
(i) because of a material breach by
the other party of any representation, warranty,
covenant or agreement contained herein to be
performed at or prior to the Closing Date;
(ii) because of a condition herein
expressed to be precedent to the obligations of the
terminating party which has not been met and which
reasonably appears will not or cannot be met;
(iii) by resolution of the Trusts Board
of Trustees if circumstances should develop that, in
the good faith opinion of the Board, make proceeding
with the Agreement not in the best interests of
either of the Acquired Funds or Surviving Funds
shareholders;
(b) In the event of any such termination, in
the absence of willful default, there shall be no
liability for damages on the part of the Acquired
Fund, the Surviving Fund, the Trust, or their
Trustees or officers, to the other party. In such
event, SIMC shall bear the expenses incurred by the
Acquired Fund and the Surviving Fund incidental to
the preparation and carrying out of this Agreement
as provided in Section 18.
15. Amendment. This Agreement may be amended,
modified or supplemented in such manner as may be
mutually agreed upon in writing by the authorized
officers of the Funds; provided, however, that no
such amendment may have the effect of changing the
provisions for determining the number of the
Surviving Fund Shares to be issued to the Acquired
Fund shareholders under this Agreement to the
detriment of such Acquired Fund shareholders.
16. Governing Law. This Agreement shall be
governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, without
giving effect to the conflicts of laws provisions
thereof.
17. Notices. Any notice, report, statement or
demand required or permitted by any provision of
this Agreement shall be in writing and shall be
given by prepaid telegraph, telecopy, certified mail
or overnight express courier addressed as follows:
Acquired Fund:
Xxxxxxx X. Xxxxx
SEI Investments Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxx, Esquire
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Surviving Fund:
Xxxxxxx X. Xxxxx
SEI Investments Company
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxx, Esquire
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
18. Fees and Expenses.
(a) Each of the Surviving Fund and the
Acquired Fund represents and warrants to the other
that there are no brokers or finders entitled to
receive any payments in connection with the
transactions provided for herein.
(b) Except as otherwise provided for herein,
all expenses that are solely and directly related to
the reorganization contemplated by this Agreement
will be borne and paid by SIMC. Such expenses
include, without limitation, to the extent solely
and directly related to the reorganization
contemplated by this Agreement: (i) expenses
incurred in connection with the entering into and
the carrying out of the provisions of this
Agreement; (ii) expenses associated with the
preparation and filing of the Registration Statement
under the 1933 Act covering the Surviving Fund
Shares to be issued pursuant to the provisions of
this Agreement; (iii) registration or qualification
fees and expenses of preparing and filing such forms
as are necessary under applicable state securities
laws to qualify the Surviving Fund Shares to be
issued in connection herewith in each state in which
the Acquired Funds shareholders are resident as of
the date of the mailing of the Information
Statement/Prospectus to such shareholders; (iv)
postage; (v) printing; (vi) accounting fees; and
(vii) legal fees.
19. Headings, Counterparts, Assignment.
(a) The section headings contained in this
Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation
of this Agreement.
(b) This Agreement may be executed in any
number of counterparts, each of which shall be
deemed an original.
(c) This Agreement shall be binding upon 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.
(d) The Surviving Fund and Acquired Fund
agree that neither party has made any
representation, warranty or covenant not set forth
herein and that this Agreement constitutes the
entire agreement between the parties. The
representations, warranties and covenants contained
herein or in any document delivered pursuant hereto
or in connection herewith shall not survive the
consummation of the transactions contemplated
hereunder.
(e) A copy of the Trusts Declaration of
Trust is on file with the Secretary of the
Commonwealth of Massachusetts, and notice is hereby
given that this Agreement is executed on behalf of
the Trust by officers of such Trust as officers and
not individually and that the obligations of or
arising out of this Agreement with respect to the
Surviving Fund and the Acquired Fund are not binding
upon any of the trustees, officers or shareholders
of the Trust individually but are binding only upon
the assets and property belonging to the Surviving
Fund and the Acquired Fund.
IN WITNESS WHEREOF, the parties have duly
executed this Agreement, all as of the date first
written above.
SEI Asset Allocation Trust, ON BEHALF OF ITS SERIES,
THE _____________________________________ FUND
By:
Name:
Title:
SEI Asset Allocation Trust, ON BEHALF OF ITS SERIES,
THE ________________________________________ FUND
By:
Name:
Title:
SOLELY FOR PURPOSES OF SECTIONS 14(b) AND 18(b), SEI
INVESTMENTS MANAGEMENT CORPORATION
By:
Name:
Title:
DB1/65509708.1 24
DB1/65509708.1
