Exhibit 4
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization
(the “Agreement”) is made as of this 16 day of April, 2021, by and between Xxxx Xxxxxxx ESG All Cap Core Fund
(the “Acquired Fund”), a series of Xxxx Xxxxxxx Investment Trust (the “Trust”), a Massachusetts
business trust, and Xxxx Xxxxxxx ESG Large Cap Core Fund (the “Acquiring Fund”), a series of the Trust.
This Agreement is intended to be and is
adopted as a plan of reorganization and liquidation within the meaning of Section 361(a) and Section 368(a) of the United States
Internal Revenue Code of 1986, as amended (the “Code”), and any successor provision.
The reorganization will consist of the transfer of all assets
of the Acquired Fund attributable to each class of its shares in exchange for shares of the Acquiring Fund as described below (the
“Merger Shares”), and the assumption by the Acquiring Fund of substantially all of the liabilities of the Acquired
Fund and the distribution of the Merger Shares to the shareholders of the Acquired Fund in liquidation of the Acquired Fund, all
upon the terms and conditions set forth in this Agreement.
In order to consummate the reorganization
contemplated by this Agreement (the “Reorganization”) and in consideration of the promises and the covenants
and agreements hereinafter set forth, and intending to be legally bound, each party hereby agrees as follows:
1. Representations
and Warranties of the Acquiring Fund.
The Trust, on behalf of the Acquiring
Fund, represents and warrants to, and agrees with, the Acquired Fund that:
| (a) | The Acquiring Fund is a series of shares of the Trust, a Massachusetts business trust duly organized
and validly existing under, and in conformity with, the laws of the Commonwealth of Massachusetts, and has the power to own all
of its assets and to carry out its obligations under this Agreement. The Trust is qualified as a foreign association in every jurisdiction
where required, except to the extent that failure to so qualify would not have a material adverse effect on the Trust. Each of
the Trust and the Acquiring Fund has all necessary federal, state, and local authorizations to carry on its business as it is now
being conducted and to carry out this Agreement. |
| (b) | The Trust is duly registered under the Investment Company Act of 1940, as amended (the “1940
Act”), as an open-end management investment company and such registration has not been revoked or rescinded and is in
full force and effect, and the Acquiring Fund is a separate diversified series thereof duly designated in accordance with the applicable
provisions of the Trust’s Amended and Restated Declaration of Trust, dated January 22, 2016, as may be amended (the “Declaration
of Trust”), and the 1940 Act. |
| (c) | The Acquiring Fund has elected to be, and has met the requirements of subchapter M of the Code,
for treatment as, a “regulated investment company” (“RIC”) within the meaning of Sections 851 and
852 of the Code at all times since its inception, and will continue to meet such requirements at all times through the Closing
Date (as defined in Section 7 herein) and thereafter. The Acquiring Fund has not at any time since its inception been liable for,
and is not now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. |
| (d) | The Acquired Fund has been furnished with: (i) the annual report of the Acquiring Fund for the
fiscal year ended October 31, 2020, and the audited financial statements appearing therein, having been audited by PricewaterhouseCoopers
LLP (“PwC”), independent registered public accounting firm, which fairly presents the financial condition and
result of operations of the Acquiring Fund as of October 31, 2020, in conformity with accounting principles generally accepted
in the United States applied on a consistent basis. |
| (e) | The Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other
than those that will be shown as belonging to it on its statement of assets and liabilities as of October 31, 2020, and those incurred
in the ordinary course of business as an investment company since such date. As of the Valuation Time (as defined in Section 3(e)),
the Acquiring Fund will advise the Acquired Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred
in the ordinary course of business, existing or accrued as of such time. |
| (f) | The Trust, on behalf of the Acquiring Fund, has full power and authority to enter into and perform
its obligations under this Agreement. The execution, delivery, and performance of this Agreement has been duly authorized by all
necessary action of the board of trustees of the Trust (the “Board”), and this Agreement constitutes a valid
and binding contract enforceable in accordance with its terms subject to approval by the Acquired Fund’s shareholders and
subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance, and similar laws relating to or affecting
creditors’ rights generally and court decisions with respect thereto. |
| (g) | Except as has been disclosed in writing to the Acquired Fund, there are no material legal, administrative
or other proceedings pending or, to the knowledge of the Trust or the Acquiring Fund, threatened against the Trust or the Acquiring
Fund which assert liability on the part of the Trust or the Acquiring Fund or which materially affect the financial condition of
the Trust or the Acquiring Fund or the Trust’s or the Acquiring Fund’s ability to consummate the Reorganization. Neither
the Trust nor the Acquiring Fund is charged with or, to the best of its knowledge, threatened with any violation or investigation
of any possible violation of any provisions of any federal, state, or local law or regulation or administrative ruling relating
to any aspect of its business. |
| (h) | Neither the Trust nor the Acquiring Fund is obligated under any provision of the Declaration of
Trust or the Trust’s Amended and Restated By-laws, dated March 8, 2005, as may be amended (the “By-laws”),
and neither is a party to any contract or other commitment or obligation, nor is subject to any order or decree, which would be
violated by its execution of or performance under this Agreement, except insofar as the Acquiring Fund and the Acquired Fund may
mutually agree that the Acquiring Fund may take such necessary action to amend such
contract or other commitment or obligation to cure any potential violation as a condition precedent to the Reorganization. |
| (i) | There are no material contracts outstanding to which the Acquiring Fund is a party that have not
been disclosed in the N-14 Registration Statement (as defined in sub-section (k) below) or that will not otherwise be disclosed
to the Acquired Fund prior to the Valuation Time. |
| (j) | No consent, approval, authorization, or order of any court or government authority is required
for the consummation by the Acquiring Fund of the Reorganization, except such as may be required under the Securities Act of 1933,
as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”),
and the 1940 Act or state securities laws (which term as used herein shall include the laws of the District of Columbia and Puerto
Rico). |
| (k) | The registration statement on Form N-14 filed with the Securities and Exchange Commission (the
“Commission”) by the Trust on behalf of the Acquiring Fund and relating to the Merger Shares issuable hereunder,
and the proxy statement of the Acquired Fund relating to the meeting of the Acquired Fund’s shareholders referred to in Section
6(b) herein (together with the documents incorporated therein by reference, the “Proxy Statement/Prospectus”),
and any supplement or amendment thereto or to the documents therein (as amended or supplemented, the “N-14 Registration
Statement”), on the effective date of the N-14 Registration Statement, at the time of the shareholders’ meeting
referred to in Section 6(b) of this Agreement and at the Closing Date, insofar as it relates to the Acquiring Fund, |
| (i) | did and will 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; and |
| (ii) | does not and will not contain 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 not misleading; and the Proxy Statement/Prospectus
included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however,
that none of the representations and warranties in this sub-section shall apply to statements in or omissions from the N-14 Registration
Statement made in reliance upon and in conformity with information furnished by the Acquired Fund for use in the N-14 Registration
Statement. |
| (l) | The Acquiring Fund’s investment operations from inception to the date hereof have been in
compliance in all material respects with the investment policies and investment restrictions set forth in the N-14 Registration
Statement. |
| (m) | All issued and outstanding shares of the Acquiring Fund are, and at the Closing Date will be, duly
and validly issued and outstanding, fully paid, and nonassessable by the Acquiring Fund. In regard to the statement above that
the outstanding shares will be nonassessable, it is noted that the Trust is a “Massachusetts business trust” and under
Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations of the
Acquiring Fund. The Acquiring Fund does not have outstanding any security convertible into any of the Acquiring Fund shares. |
| (n) | The Merger Shares to be issued to the Acquired Fund pursuant to this Agreement have been duly authorized
and, when issued and delivered pursuant to this Agreement, will be legally and validly issued Class A, Class C, Class I and Class
R6 shares of beneficial interest in the Acquiring Fund and will be fully paid and nonassessable by the Acquiring Fund, and no shareholder
of the Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof. In regard to the statement
above that the Merger Shares will be nonassessable, it is noted that Trust is a “Massachusetts business trust” and
under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable for the obligations
of the Trust. |
| (o) | At or prior to the Closing Date, the Merger Shares to be transferred to the Acquired Fund for distribution
to the shareholders of the Acquired Fund on the Closing Date will be duly qualified for offering to the public in all states of
the United States in which the sale of shares of the Acquired Fund presently are qualified, and there will be a sufficient number
of such shares registered under the 1933 Act and, as may be necessary, with each pertinent state securities commission to permit
the transfers contemplated by this Agreement to be consummated. |
| (p) | At or prior to the Closing Date, the Acquiring Fund will have obtained any and all regulatory,
trustee, and shareholder approvals necessary to issue the Merger Shares to the Acquired Fund. |
| (q) | The Acquiring Fund has timely filed, or intends to file, or has obtained extensions to file,
all federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained extensions to
pay, all federal, state, and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including the taxable year
in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects. All tax liabilities
of the Acquiring Fund have been adequately provided for on its books, and no tax deficiency or liability of the Acquiring Fund
has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by any state or local
tax authority for taxes in excess of those already paid, up to and including the taxable year in which the Closing Date occurs. |
2. Representations and Warranties
of the Acquired Fund.
The Trust, on behalf of the Acquired Fund,
represents and warrants to, and agrees with, the Acquiring Fund that:
| (a) | The Acquired Fund is a series of shares of the Trust, a Massachusetts business trust duly organized
and validly existing under, and in good standing in conformity with, the laws of the Commonwealth of Massachusetts, and has the
power to own all of its assets and to carry out its obligations under this Agreement. The Trust is qualified as a foreign association
in every jurisdiction where required, |
| | | except to the extent that failure
to so qualify would not have a material adverse effect on the Trust. Each of the Trust and the Acquired Fund has all necessary
federal, state, and local authorizations to carry on its business as it is now being conducted and to carry out this Agreement. |
| | | |
| (b) | The Trust is duly registered under the 1940 Act as an open-end management investment company and
such registration has not been revoked or rescinded and is in full force and effect, and the Acquired Fund is a separate diversified
series thereof duly designated in accordance with the applicable provisions of the Declaration of Trust and the 1940 Act. |
| (c) | The Acquired Fund has elected to be, and has met the requirements of subchapter M of the Code for
treatment as, a RIC within the meaning of Sections 851 and 852 of the Code at all times since its inception, and will continue
to meet such requirements at all times through the Closing Date with respect to its taxable year ending on the Closing Date. The
Acquired Fund has not at any time since its inception been liable for, and is not now liable for, and will not be liable for on
the Closing Date, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. |
| (d) | The Trust, on behalf of the Acquired Fund, has full power and authority to enter into and perform
its obligations under this Agreement. The execution, delivery, and performance of this Agreement has been duly authorized by all
necessary action of the board of trustees of the Trust (the “Board”), and this Agreement constitutes a valid
and binding contract enforceable in accordance with its terms subject to approval by the Acquired Fund’s shareholders and
subject to the effects of bankruptcy, insolvency, moratorium, fraudulent conveyance, and similar laws relating to or affecting
creditors’ rights generally and court decisions with respect thereto. |
| (e) | The Acquiring Fund has been furnished with: (i) the annual report of the Acquired Fund for the
fiscal year ended October 31, 2020, and the audited financial statements appearing therein, having been audited by PwC, independent
registered public accounting firm, which fairly presents the financial condition and result of operations of the Acquired Fund
as of October 31, 2020, in conformity with accounting principles generally accepted in the United States applied on a consistent
basis. |
| (f) | The Acquired Fund has no known liabilities of a material nature, contingent or otherwise, other
than those that will be shown as belonging to it on its statement of assets and liabilities as of October 31, 2020, and those incurred
in the ordinary course of business as an investment company since such date. As of the Valuation Time, the Acquired Fund will advise
the Acquiring Fund in writing of all known liabilities, contingent or otherwise, whether or not incurred in the ordinary course
of business, existing or accrued as of such time. |
| (g) | Except as has been disclosed in writing to the Acquiring Fund, there are no material legal, administrative,
or other proceedings pending or, to the knowledge of the Trust or the Acquired Fund, threatened against the Trust or the Acquired
Fund which assert liability on the part of the Trust or the Acquired Fund or which materially affect the financial condition of
the Trust or the Acquired Fund or the Trust’s or the Acquired Fund’s ability to consummate the Reorganization. Neither
the Trust nor the Acquired Fund is charged with or, to the best of its knowledge, threatened with any violation or investigation
of any possible violation of any provisions of any federal, state, or local law or regulation or administrative ruling relating
to any aspect of its business. |
| (h) | There are no material contracts outstanding to which the Acquired Fund is a party that have not
been disclosed in the N-14 Registration Statement or that will not otherwise be disclosed to the Acquiring Fund prior to the Valuation
Time. |
| (i) | Neither the Trust nor the Acquired Fund is obligated under any provision of the Declaration of
Trust or By-laws, and neither is a party to any contract or other commitment or obligation, nor is subject to any order or decree,
which would be violated by its execution of or performance under this Agreement, except insofar as the Acquired Fund and the Acquiring
Fund may mutually agree that the Acquired Fund may take such necessary action to amend such contract or other commitment or obligation
to cure any potential violation as a condition precedent to the Reorganization. |
| (j) | The Acquired Fund has timely filed, or intends to file, or has obtained extensions to file, all
federal, state, and local tax returns which are required to be filed by it, and has paid or has obtained extensions to pay all
federal, state, and local taxes shown on said returns to be due and owing and all assessments received by it, up to and including
the taxable year in which the Closing Date occurs. All such tax returns are true, correct and complete in all material respects.
All tax liabilities of the Acquired Fund have been adequately provided for on its books, and no tax deficiency or liability of
the Acquired Fund has been asserted and no question with respect thereto has been raised by the Internal Revenue Service or by
any state or local tax authority for taxes in excess of those already paid, up to and including the taxable year in which the Closing
Date occurs. |
| (k) | As used in this Agreement, the term “Acquired Fund Investments” shall mean: |
| (i) | the investments of the Acquired Fund shown on its schedule of investments as of the Valuation Time
furnished to the Acquiring Fund; and |
| (ii) | all other assets owned by the Acquired Fund or liabilities incurred as of the Valuation Time. At
the Valuation Time and the Closing Date, the Acquired Fund will have full right, power, and authority to sell, assign, transfer,
and deliver the Acquired Fund Investments. At the Closing Date, subject only to the obligation to deliver the Acquired Fund Investments
as contemplated by this Agreement, the Acquired Fund will have good and marketable title to all of the Acquired Fund Investments,
and the Acquiring Fund will acquire all of the Acquired Fund Investments free and clear of any encumbrances, liens, or security
interests and without any restrictions upon the transfer thereof (except those imposed by the federal or state securities laws
and those imperfections of title or encumbrances as do not materially detract from the value or use of the Acquired Fund Investments
or materially affect title thereto). |
| (l) | No consent, approval, authorization or order of any court or governmental authority is required
for the consummation by the Acquired Fund of the Reorganization, except such as may be required under the 1933 Act, the 1934 Act,
the 1940 Act or state securities laws. |
| (m) | The N-14 Registration Statement, on the effective date of the N-14 Registration Statement, at the
time of the shareholders’ meeting referred to in Section 6(b) of this Agreement and at the Closing Date, insofar as it relates
to the Acquired Fund, |
| (i) | did and will 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; and |
| (ii) | does not and will not contain 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 not misleading; and the Proxy Statement/Prospectus
included therein did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however,
that none of the representations and warranties in this sub-section shall apply to statements in or omissions from the N-14 Registration
Statement made in reliance upon and in conformity with information furnished by the Acquiring Fund for use in the N-14 Registration
Statement. |
| (n) | All issued and outstanding shares of the Acquired Fund are, and at the Closing Date will be, duly
and validly issued and outstanding, fully paid, and nonassessable by the Acquired Fund (“Acquired Fund Shares”).
In regard to the statement above that the Acquired Fund Shares will be nonassessable, it is noted that the Trust is a “Massachusetts
business trust” and under Massachusetts’ law, shareholders could, under certain circumstances, be held personally liable
for the obligations of the Acquired Fund. The Acquired Fund does not have outstanding any security convertible into any of the
Acquired Fund Shares. |
| (o) | All of the issued and outstanding shares of the Acquired Fund were offered for sale and sold in
conformity with all applicable federal and state securities laws. |
| (p) | The books and records of the Acquired Fund made available to the Acquiring Fund and/or its counsel
are substantially true and correct and contain no material misstatements or omissions with respect to the operations of the Acquired
Fund. |
| (q) | The Acquired Fund will not sell or otherwise dispose of any of the Merger Shares to be received
in the Reorganization, except in distribution to the shareholders of the Acquired Fund, as provided in Section 3 of this Agreement. |
3. The Reorganization.
| (a) | Subject to the requisite approval of the shareholders of the Acquired Fund, and to the other terms
and conditions contained herein, the Acquired Fund agrees to sell, convey, transfer, and deliver to the Acquiring Fund, and the
Acquiring Fund agrees to acquire from the Acquired Fund, on the Closing Date, all of the Acquired Fund Investments (including interest
accrued as of the Valuation Time on debt instruments) and to assume substantially all of the liabilities of the Acquired Fund,
in exchange for that number of Merger Shares provided for in Section 4. Pursuant to this Agreement, as soon as practicable after
the Closing Date, the Acquired Fund will distribute all Merger Shares received by it to its shareholders in exchange for their
Acquired Fund Shares in complete liquidation of the Acquired Fund. Such distributions shall be accomplished by the opening of shareholder
accounts on the share ledger records of the Acquiring Fund in the amounts due the shareholders of the Acquired Fund based on their
respective holdings in the Acquired Fund as of the Valuation Time. |
| (b) | If it is determined that the portfolios of the Acquired Fund and the Acquiring Fund, when aggregated,
would contain investments exceeding certain percentage limitations imposed upon the Acquiring Fund with respect to such investments,
the Acquired Fund, if requested by the Acquiring 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, |
| (i) | nothing herein will require the Acquired Fund to dispose of any portfolios, securities, or other
investments, if, in the reasonable judgment of the Board or the Acquired Fund’s investment advisor, such disposition would
not be in the best interests of the Acquired Fund; and |
| (ii) | nothing will permit the Acquired Fund to dispose of any portfolio securities or other investments
if, in the reasonable judgment of the Board or the Acquiring Fund’s investment advisor, such disposition would not be in
the best interests of the Acquiring Fund. |
| (c) | Prior to the Closing Date, the Acquired Fund shall declare a dividend or dividends which, together
with all such previous dividends, shall have the effect of distributing to its shareholders all of its net investment company taxable
income, if any (computed without regard to any deduction for dividends paid), all of its net tax-exempt income, if any, and all
of its net capital gain, if any, in each case for its taxable year beginning on November 1, 2020 and ending on the Closing Date
and, if still timely under Section 855 of the Code, the taxable year ending on October 31, 2020. |
| (d) | The Acquired Fund will pay or cause to be paid to the Acquiring Fund any interest the Acquired
Fund receives on or after the Closing Date with respect to any of the Acquired Fund Investments transferred to the Acquiring Fund
hereunder. |
| (e) | The Valuation Time shall be 4:00 P.M., Eastern Time, on the Closing Date, or such earlier or later
day and time as may be mutually agreed upon in writing (the “Valuation Time”). |
| (f) | Recourse for liabilities assumed from the Acquired Fund by the Acquiring Fund in the Reorganization
will be limited to the assets acquired by the Acquiring Fund. The known liabilities of the Acquired Fund, as of the Valuation Time,
shall be confirmed to the Acquiring Fund pursuant to Section 2(k) of this Agreement. |
| (g) | The Acquired Fund will be terminated following the Closing Date by terminating its registration
under the 1940 Act and its organization under Massachusetts law and, where it is required to do so, will withdraw its authority
to do business in any state. |
| (h) | The Acquiring Fund will (a) file with the Secretary of the Commonwealth of Massachusetts any necessary
amendment to the Declaration of Trust and (b) implement any amendment to the By-laws necessary to consummate the Reorganization. |
4. Valuation.
| (a) | On the Closing Date, the Acquiring Fund will deliver to the Acquired Fund a number of full and
fractional Merger Shares having an aggregate net asset value on such date, determined as hereinafter provided in this Section 4: |
| (i) | in the case of Class A shares of the Acquiring Fund, equal to the value of the assets, less the
value of the liabilities, of the Acquired Fund attributable to the Acquired Fund’s Class A shares |
| (ii) | in the case of Class C shares of the Acquiring Fund, equal to the value of the assets, less the
value of the liabilities, of the Acquired Fund attributable to the Acquired Fund’s Class C shares |
| (iii) | in the case of Class I shares of the Acquiring Fund, equal to the value of the assets, less the
value of the liabilities, of the Acquired Fund attributable to the Acquired Fund’s Class I shares |
| (iv) | in the case of Class R6 shares of the Acquiring Fund, equal to the value of the assets, less the
value of the liabilities, of the Acquired Fund attributable to the Acquired Fund’s Class R6 shares. |
| (b) | The net asset value of the Merger Shares to be delivered to the Acquired Fund, the value of the
assets attributable to the Acquired Fund Shares, and the value of the liabilities of the Acquired Fund to be assumed by the Acquiring
Fund, shall in each case be determined as of the Valuation Time. |
| (c) | The net asset value of the Merger Shares shall be computed in the manner set forth in the then-current
prospectus or statement of additional information of the Acquiring Fund. The value of the assets and liabilities of the Acquired
Fund shall be determined by the Acquiring Fund, in cooperation with the Acquired Fund, pursuant to procedures which the Acquiring
Fund would use in determining the fair market value of the Acquiring Fund’s assets and liabilities. |
| (d) | No adjustment shall be made in the net asset value of either the Acquired Fund or the Acquiring
Fund to take into account differences in realized and unrealized gains and losses. |
| (e) | The Acquiring Fund shall issue the Merger Shares to the Acquired Fund. The Acquired Fund shall
promptly distribute the Merger Shares to the shareholders of the Acquired Fund by establishing open accounts for each Acquired
Fund shareholder on the share ledger records of the Acquiring Fund. Certificates representing Merger Shares will not be issued
to Acquired Fund shareholders. |
| (f) | The Acquiring Fund shall assume substantially all of the liabilities of the Acquired Fund, whether
accrued or contingent, in connection with the acquisition of assets and subsequent liquidation and dissolution of the Acquired
Fund or otherwise, except for the Acquired Fund’s liabilities, if any, arising pursuant to this Agreement. |
5. Payment of Expenses.
| (a) | Except as otherwise provided in this Section 5, the costs that are incurred in connection with
the Reorganization will be borne by the investment advisor to the Acquired and Acquiring Funds. Notwithstanding the foregoing,
the Acquired Fund will pay any brokerage commissions, dealer xxxx-ups, and similar expenses that it may incur in connection with
the purchases or sale of portfolio securities, and the Acquiring Fund will pay all governmental fees required in connection with
the registration or qualification of the Merger Shares under applicable state and federal laws. |
| (b) | In the event that the Reorganization contemplated by this Agreement is not consummated, then Xxxx
Xxxxxxx Investment Management LLC, investment advisor to the Acquired and Acquiring Funds, will bear all the costs and expenses
incurred in connection with such Reorganization. |
| (c) | Notwithstanding any other provisions of this Agreement, if for any reason the Reorganization
contemplated by this Agreement is not consummated, neither the Acquiring Fund nor the Acquired Fund shall be liable to the other for any damages resulting
therefrom, including, without limitation, consequential damages, except as specifically set forth above. |
| (d) | Notwithstanding any of the foregoing, costs and expenses will in any event be paid by the party
directly incurring them if and to the extent that the payment by another party of such costs and expenses would result in the disqualification
of such party as a “regulated investment company” within the meaning of subchapter M of the Code. |
6. Covenants of the Acquired Fund
and the Acquiring Fund.
The Acquired Fund and the Acquiring Fund
hereby covenant and agree with the other as follows:
| (a) | Each of the Acquired Fund and the Acquiring Fund will operate its business as presently conducted
in the ordinary course of business between the date hereof and the Closing Date, it being understood that such ordinary course
of business will include regular and customary periodic dividends and distributions. |
| (b) | The Trust, on behalf of the Acquired Fund, will call a meeting of its shareholders to be held prior
to the Closing Date to consider and act upon this Agreement and take all other reasonable action necessary to obtain the required
shareholder approval of the Reorganization contemplated hereby. |
| (c) | In connection with the Acquired Fund shareholders’ meeting referred to in sub-section (b)
above, the Acquiring Fund will prepare the Prospectus/Proxy Statement for such meeting, to be included in the N-14 Registration
Statement, which the Trust, on behalf of the Acquiring Fund, will prepare and file for registration under the 1933 Act of the Merger
Shares to be distributed to the Acquired Fund’s shareholders pursuant hereto, all in compliance with the applicable requirements
of the 1933 Act, the 1934 Act, and the 1940 Act. The Acquiring Fund will use its best efforts to provide for the N-14 Registration
Statement to become effective as promptly as practicable. The Acquired Fund and the Acquiring Fund will cooperate fully with each
other, and each will furnish to the other the information relating to itself to be set forth in the N-14 Registration Statement,
as required by the 1933 Act, the 1934 Act, the 1940 Act and the rules and regulations thereunder and the state securities laws. |
| (d) | The information to be furnished by the Acquired Fund and the Acquiring Fund for use in the N-14
Registration Statement shall be accurate and complete in all material respects and shall comply with federal securities and other
laws and regulations thereunder applicable hereto. |
| (e) | The Acquiring Fund will advise the Acquired Fund promptly if at any time prior to the Closing Date
the assets of the Acquired Fund include any securities that the Acquiring Fund is not permitted to acquire. |
| (f) | Subject to the provisions of this Agreement, the Acquired Fund and the Acquiring 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 cause
the conditions to the other party’s obligations to consummate the transactions contemplated hereby to be met or fulfilled
and otherwise to consummate and make effective such transactions. |
| (g) | The Acquiring Fund will use all reasonable efforts to obtain the approvals and authorizations required
by the 1933 Act, the 1940 Act and such of the state securities laws as it may deem appropriate in order to continue its operations
after the Closing Date. |
| (i) | following the consummation of the Reorganization, terminate the Acquired Fund in accordance with
the laws of the Commonwealth of Massachusetts, the Declaration of Trust, the By-laws, the 1940 Act, and any other applicable law; |
| (ii) | not make any distributions of any Merger Shares other than to the respective Acquired Fund shareholders
and without first paying or adequately providing for the payment of all of its respective liabilities not assumed by the Acquiring
Fund, if any; and |
| (iii) | on and after the Closing Date not conduct any business on behalf of the Acquired Fund except in
connection with the termination of the Acquired Fund. |
| (i) | Each of the Acquired Fund and the Acquiring Fund agrees that by the Closing Date, all of its federal
and other tax returns and reports required to be filed on or before such date (taking into account extensions) shall have been
filed and all taxes shown as due on said returns either have been paid or adequate liability reserves have been provided for the
payment of such taxes. |
| (j) | Neither the Acquiring Fund nor the Acquired Fund shall take any action or cause any action to be
taken (including, without limitation, the filing of any tax return) that results in the failure of the Reorganization to qualify
as a reorganization within the meaning of Section 368(a) of the Code or is inconsistent with the treatment of the Reorganization
as a reorganization within the meaning of such Code section. At or prior to the Closing Date, the Trust, the Acquiring Fund, and
the Acquired Fund will take such action, or cause such action to be taken, as is reasonably necessary to enable K&L Gates LLP
(“K&L Gates”), special counsel to the Acquired Fund and the Acquiring Fund, to render the tax opinion required
herein (including, without limitation, each party’s execution of representations reasonably requested by and addressed to
K&L Gates). |
| (k) | In connection with the covenant in subsection (j) above, each of the Acquired Fund and Acquiring
Fund will cooperate with each other in filing any tax return, amended return, or claim for refund, determining a liability for
taxes or a right to a refund of taxes or participating in or conducting any audit or other proceeding in respect of taxes. The
Acquiring Fund will retain for a period of ten (10) years following the Closing Date all returns, schedules and work papers and
all material records or other documents relating to tax matters of the Acquired Fund for such Acquired Fund’s taxable period
first ending after the Closing Date and for all prior taxable periods. |
| (l) | After the Closing Date, the Acquiring Fund on behalf of the Acquired Fund shall prepare, or cause
its agents to prepare, any federal, state or local tax returns required to be filed by the Acquired Fund with respect to its final
taxable year ending with its complete liquidation and for any prior periods or taxable years and further shall cause such tax returns
to be duly filed with the appropriate taxing authorities. Notwithstanding the aforementioned provisions of this subsection, any
expenses incurred by the Acquired Fund (other than for payment of taxes) in connection with the preparation and filing of said
tax returns after the Closing Date shall be borne by the Acquired Fund to the extent such expenses have been accrued by the Acquired
Fund on or prior to the Closing Date; any excess expenses shall be borne by the investment advisor or an affiliate thereof. |
| (m) | Following the consummation of the Reorganization, the Acquiring Fund will continue its business
as a diversified series of the Trust, an open-end management investment company registered under the 1940 Act. |
7. Closing Date.
| (a) | Delivery of the assets of the Acquired Fund to be transferred, together with any other Acquired
Fund Investments, assumption of the liabilities of the Acquired Fund to be assumed, and delivery of the Merger Shares to be issued
as provided in this Agreement shall be made at such place and time as the Acquired Fund and Acquiring Fund shall mutually agree,
as of the close of business on April 16, 2021, or at such other time and date agreed to by the Acquired Fund and the Acquiring
Fund, the date and time upon which such delivery is to take place being referred to herein as the “Closing Date.” |
| (b) | To the extent that any Acquired Fund Investments, for any reason, are not transferable on the Closing
Date, the Acquired Fund shall cause such Acquired Fund Investments to be transferred to the Acquiring Fund’s account with
its custodian at the earliest practicable date thereafter. |
| (c) | The Acquired Fund will deliver to the Acquiring Fund on the Closing Date: (i) copies of all relevant
tax books and records; and (ii) confirmation or other adequate evidence as to the tax basis of the Acquired Fund Investments delivered
to the Acquiring Fund hereunder. |
| (d) | As soon as practicable after the close of business on the Closing Date, the Acquired Fund shall
deliver to the Acquiring Fund a list of the names and addresses of all of the shareholders of record of the Acquired Fund on the
Closing Date and the number of Acquired Fund Shares owned by each such shareholder, certified to the best of its knowledge and
belief by the transfer agent for the Acquired Fund or by its President. |
8. Conditions of the Acquired
Fund’s Obligations.
The obligations of the Acquired Fund hereunder
shall be subject to the following conditions:
| (a) | That the Board has determined that participation in the Reorganization is in the best interests
of the Acquiring Fund and that the interests of the existing shareholders thereof will not be diluted as a result of the Reorganization,
that this Agreement shall have been adopted, and the Reorganization shall have been approved, by the Board, and that the Acquiring
Fund shall have delivered to the Acquired Fund a copy of the resolutions approving this Agreement adopted by the Board certified
by its Secretary or Assistant Secretary. |
| (b) | That the Acquiring Fund shall have furnished to the Acquired Fund a statement of its assets, liabilities,
and capital, with values determined as provided in Section 4 of this Agreement, together with a schedule of the Acquiring Fund’s
investments with their respective dates of acquisition and tax costs, all as of the Valuation Time, certified on the Acquiring
Fund’s behalf by its President (or any Vice President) or its Treasurer (or any Assistant Treasurer), and a certificate signed
by the Acquiring Fund’s President (or any Vice President) or its Treasurer (or any Assistant Treasurer), dated as of the
Closing Date, certifying that as of the Valuation Time and as of the Closing Date there has been no material adverse change in
the financial position of the Acquiring Fund since the date of the Acquiring Fund’s most recent annual report or semiannual
report, as applicable, other than changes in its portfolio securities since that date or changes in the market value of its portfolio
securities. |
| (c) | That the Acquiring Fund shall have furnished to the Acquired Fund a certificate signed by the Acquiring
Fund’s President (or any Vice President), its Chief Financial Officer, or its Treasurer (or any Assistant Treasurer), dated
as of the Closing Date, certifying that, as of the Valuation Time and as of the Closing Date, all representations and warranties
of the Acquiring Fund made in this Agreement are true and correct in all material respects with the same effect as if made at and
as of such dates, and that the Acquiring Fund has complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied at or prior to each of such dates. |
| (d) | That there shall not be any material litigation pending with respect to the matters contemplated
by this Agreement. |
| (e) | That the Acquired Fund shall have received the opinion(s) of K&L Gates, counsel for the Acquiring
Fund, dated as of the Closing Date, addressed to the Acquired Fund, substantially in the form and to the effect that: |
| (i) | both the Acquiring Fund and the Trust are duly formed and validly existing under the laws of the
Commonwealth of Massachusetts; |
| (ii) | the Acquiring Fund is a separate series of the Trust, an open-end, management investment company
registered under the 1940 Act; |
| (iii) | this Agreement and the Reorganization provided for herein and the execution of this Agreement have
been duly authorized and approved by all requisite action of the Board, and this Agreement has been duly executed and delivered
by the Trust on behalf of the Acquiring Fund and (assuming this Agreement is a valid and binding
obligation of the other party hereto) is a valid and binding obligation of the Acquiring Fund; |
| (iv) | neither the execution or delivery by the Trust on behalf of the Acquiring Fund of this Agreement
nor the consummation by the Acquiring Fund of the Reorganization contemplated hereby violates any provision of any statute or any
published regulation or any judgment or order disclosed to counsel by the Acquiring Fund as being applicable to the Acquiring Fund; |
| (v) | the Merger Shares have each been duly authorized and, upon issuance thereof in accordance with
this Agreement, will be validly issued, fully paid, and nonassessable, except to the extent shareholders could under certain circumstances,
in accordance with Massachusetts’ law, be held personally liable for the obligations of the Acquiring Fund; and |
| (vi) | to their knowledge and subject to the qualifications set forth below, the execution and delivery
by the Trust on behalf of the Acquiring Fund of this Agreement and the consummation of the Reorganization herein contemplated do
not require, |
| | under the laws of the Commonwealth
of Massachusetts or any state in which the Acquiring Fund is qualified to do business or the federal laws of the United States,
the consent, approval, authorization, registration, qualification, or order of, or filing with, any court or governmental agency
or body (except such as have been obtained under the 1933 Act, 1934 Act, the 1940 Act or the rules and regulations thereunder).
Counsel need express no opinion, however, as to any such consent, approval, authorization, registration, qualification, order,
or filing which may be required as a result of the involvement of other parties to this Agreement in the transactions herein contemplated
because of their legal or regulatory status or because of any other facts specifically pertaining to them. |
| (f) | That the Acquired Fund shall have obtained an opinion from K&L Gates dated as of the Closing
Date (which opinion will be subject to certain qualifications), addressed to the Acquired Fund, and based upon such representations
of the parties as K&L Gates may reasonably request and the existing provisions of the Code, Treasury regulations promulgated
thereunder, current administrative rules, and court decisions, that the Reorganization set forth in this Agreement qualifies as
a reorganization as described in Section 368(a) of the Code. |
| (g) | That all proceedings taken by the Acquiring Fund and its counsel in connection with the Reorganization
and all documents incidental thereto shall be satisfactory in form and substance to the Acquired Fund. |
| (h) | That the N-14 Registration Statement shall have become effective under the 1933 Act, and no stop
order suspending such effectiveness shall have been instituted or, to the knowledge of the Trust or the Acquiring Fund, be contemplated
by the Commission. |
9. Conditions of the Acquiring
Fund’s Obligations.
The obligations of the Acquiring Fund
hereunder shall be subject to the following conditions:
| (a) | That the Board has determined that participation in the Reorganization is in the best interests
of the Acquired Fund and that the interests of the existing shareholders thereof will not be diluted as a result of the Reorganization,
that this Agreement shall have been adopted, and the Reorganization shall have been approved, by the Board and by the affirmative
vote of the holders of a majority of the outstanding Acquired Fund Shares (as defined in the Declaration of Trust); and the Acquired
Fund shall have delivered to the Acquiring Fund a copy of the resolutions approving this Agreement adopted by the Board and a certificate
setting forth the vote of the holders of the Acquired Fund Shares obtained, each certified by its Secretary or Assistant Secretary. |
| (b) | That the Acquired Fund shall have furnished to the Acquiring Fund a statement of its assets, liabilities,
and capital, with values determined as provided in Section 4 of this Agreement, together with a schedule of the Acquired Fund’s
investments with their respective dates of acquisition and tax costs, all as of the Valuation Time, certified on the Acquired Fund’s
behalf by its President (or any Vice President) or its Treasurer (or any Assistant Treasurer), and a certificate signed by the
Acquired Fund’s President (or any Vice President) or its Treasurer (or any Assistant Treasurer), dated as of the Closing
Date, certifying that as of the Valuation Time and as of the Closing Date there has been no material adverse change in the financial
position of the Acquired Fund since the date of the Acquired Fund’s most recent annual report or semiannual report, as applicable,
other than changes in the Acquired Fund Investments since that date or changes in the market value of the Acquired Fund Investments. |
| (c) | That the Acquired Fund shall have furnished to the Acquiring Fund a certificate signed by the Acquired
Fund’s President (or any Vice President), its Chief Financial Officer or its Treasurer (or any Assistant Treasurer), dated
as of the Closing Date, certifying that, as of the Valuation Time and as of the Closing Date, all representations and warranties
of the Acquired Fund made in this Agreement are true and correct in all material respects with the same effect as if made at and
as of such dates, and that the Acquired Fund has complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied at or prior to each of such dates. |
| (d) | That there shall not be any material litigation pending with respect to the matters contemplated
by this Agreement. |
| (e) | That the Acquiring Fund shall have received the opinion(s) of K&L Gates, counsel for the Acquired
Fund, dated as of the Closing Date, addressed to the Acquiring Fund, substantially in the form and to the effect that: |
| (i) | both the Acquired Fund and the Trust are duly formed and validly existing under the laws of the
Commonwealth of Massachusetts; |
| (ii) | the Acquired Fund is a separate series of the Trust, an open-end, management investment company
registered under the 1940 Act; |
| (iii) | this Agreement and the Reorganization provided for herein and the execution of this Agreement have
been duly authorized and approved by all requisite action of the Board, and this Agreement has been duly executed and delivered
by the Trust on behalf of the Acquired Fund and (assuming this Agreement is a valid and binding obligation of the other party hereto)
is a valid and binding obligation of the Acquired Fund; |
| (iv) | neither the execution or delivery by the Trust on behalf of the Acquired Fund of this Agreement
nor the consummation by the Acquired Fund of the Reorganization contemplated hereby violates any provision of any statute or any
published regulation or any judgment or order disclosed to counsel by the Acquired Fund as being applicable to the Acquired Fund;
and |
| (v) | to their knowledge and subject to the qualifications set forth below, the execution and delivery
by the Trust on behalf of the Acquired Fund of this Agreement and the consummation of the Reorganization herein contemplated do
not require, under the laws of the Commonwealth of Massachusetts or any state in which the Acquired Fund is qualified to do business, |
| | or the federal laws of the United
States, the consent, approval, authorization, registration, qualification, or order of, or filing with, any court or governmental
agency or body (except such as have been obtained under the 1933 Act, 1934 Act, the 1940 Act or the rules and regulations thereunder).
Counsel need express no opinion, however, as to any such consent, approval, authorization, registration, qualification, order,
or filing which may be required as a result of the involvement of other parties to this Agreement in the transactions herein contemplated
because of their legal or regulatory status or because of any other facts specifically pertaining to them. |
| (f) | That the Acquiring Fund shall have obtained an opinion from K&L Gates, counsel for the Acquired
Fund, dated as of the Closing Date (which opinion will be subject to certain qualifications), addressed to the Acquiring Fund,
and based upon such representations of the parties as K&L Gates may reasonably request and the existing provisions of the Code,
Treasury regulations promulgated thereunder, current administrative rules, and court decisions, that the Reorganization set forth
in this Agreement qualifies as a reorganization as described in Section 368(a) of the Code. |
| (g) | That the N-14 Registration Statement shall have become effective under the 1933 Act, and no stop
order suspending such effectiveness shall have been instituted or, to the knowledge of the Trust or the Acquired Fund, be contemplated
by the Commission. |
| (h) | That the Acquired Fund’s custodian shall have delivered to the Acquiring Fund a certificate
identifying all assets of the Acquired Fund held or maintained by such custodian as of the Valuation Time. |
| (i) | That all proceedings taken by the Acquired Fund and its counsel in connection with the Reorganization
and all documents incidental thereto shall be satisfactory in form and substance to the Acquiring Fund. |
| (j) | That prior to the Closing Date the Acquired Fund shall have declared a dividend or dividends that,
together with all such previous dividends, shall have the effect of distributing to its shareholders all of its net investment
company taxable income, if any (computed without regard to any deduction for dividends paid), all of its net tax-exempt income,
if any, and all of its net capital gain, if any, in each case for its taxable year beginning on November 1, 2020 and ending on
the Closing Date and, if still timely under Section 855 of the Code, the taxable year ending on October 31, 2020. |
10. Termination, Postponement
and Waivers.
| (a) | Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated
and the Reorganization abandoned at any time (whether before or after adoption thereof by the shareholders of the Acquired Fund)
prior to the Closing Date, or the Closing Date may be postponed, |
| (i) | by consent of the Board; |
| (ii) | by the Board if any condition of the Acquiring Fund’s obligations set forth in Section 8
of this Agreement has not been fulfilled or waived by the Board; or |
| (iii) | by the Board if any condition of the Acquired Fund’s obligations set forth in Section 9 of
this Agreement has not been fulfilled or waived by the Board. |
| (b) | If the Reorganization contemplated by this Agreement has not been consummated by April 16, 2022,
this Agreement automatically shall terminate on that date, unless a later date is set by the Board. |
| (c) | In the event of termination of this Agreement pursuant to the provisions hereof, the same shall
become void and have no further effect, and there shall not be any liability on the part of the Acquired Fund, the Acquiring Fund
or persons who are their directors, trustees, officers, agents, or shareholders in respect of this Agreement. |
| (d) | At any time prior to the Closing Date, any of the terms or conditions of this Agreement may be
waived by the Board, if, in the judgment of the Board after consultation with its counsel, such action or waiver will not have
a material adverse effect on the benefits intended under this Agreement to the shareholders of the respective Fund, on behalf of
which such action is taken. |
| (e) | The respective representations and warranties contained in Sections 1 and 2 of this Agreement shall
expire with, and be terminated by, the consummation of the Reorganization, and the Acquired Fund and the Acquiring Fund and the
officers, trustees, agents, or shareholders of such Funds shall not have any liability with respect to such representations or
warranties after the Closing Date. This provision shall not protect any officer, trustee, agent, or shareholder of either the Acquired
Fund or the Acquiring Fund against any liability to the entity for which that officer, trustee, agent, or shareholder so acts or
to its shareholders, to which that officer, trustee, agent, or shareholder otherwise would be subject by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties in the conduct of such office. |
| (f) | If any order or orders of the Commission with respect to this Agreement shall be issued prior to
the Closing Date and shall impose any terms or conditions which are determined by action of the respective Boards to be acceptable,
such terms and conditions shall be binding as if a part of this Agreement without further vote or approval of the shareholders
of the Acquired Fund unless such terms and conditions shall result in a change in the method of computing the number of Merger
Shares to be issued to the Acquired Fund, in which event, unless such terms and conditions shall have been included in the proxy
solicitation materials furnished to the shareholders of the Acquired Fund prior to the meeting at which the Reorganization shall
have been approved, this Agreement shall not be consummated and shall terminate unless the Acquired Fund promptly shall call a
special meeting of shareholders at which such conditions so imposed shall be submitted for approval. |
11. Indemnification.
| (a) | Each party (an “Indemnitor”) shall indemnify and hold the other and its officers,
trustees, agents, and persons controlled by or controlling any of them (each an “Indemnified Party”) harmless
from and against any and all losses, damages, liabilities, claims, demands, judgments, settlements, deficiencies, taxes, assessments,
charges, costs, and expenses of any nature whatsoever (including reasonable attorneys’ fees) including amounts paid in satisfaction
of judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred by such Indemnified Party in connection
with the defense or disposition of any claim, action, suit, or other proceeding, whether civil or criminal, before any court or
administrative or investigative body in which such Indemnified Party may be or may have been involved as a party or otherwise or
with which such Indemnified Party may be or may have been threatened (collectively, the “Losses”) arising out
of or related to any claim of a breach of any representation, warranty, or covenant made herein by the Indemnitor; provided, however,
that no Indemnified Party shall be indemnified hereunder against any Losses arising directly from such Indemnified Party’s:
(i) willful misfeasance; (ii) bad faith; (iii) gross negligence; or (iv) reckless disregard of the duties involved in the conduct
of such Indemnified Party’s position. |
| (b) | The Indemnified Party shall use its best efforts to minimize any liabilities, damages, deficiencies,
claims, judgments, assessments, costs, and expenses in respect of which indemnity may be sought hereunder. The Indemnified Party
shall give written notice to the Indemnitor within the earlier of ten (10) days of receipt of written notice to the Indemnified
Party or thirty (30) days from discovery by the Indemnified Party of any matters which may give rise to a claim for indemnification
or reimbursement under this Agreement. The failure to give such notice shall not affect the right of the Indemnified Party to indemnity
hereunder unless such failure has materially and adversely affected the rights of the Indemnitor. At any time after ten (10) days
from the giving of such notice, the Indemnified Party may, at its option, resist, settle, or otherwise compromise, or pay such
claim unless it shall have received notice from the Indemnitor that the Indemnitor intends, at the Indemnitor’s sole cost
and expense, to assume the defense of any such matter, in which case the Indemnified Party shall have the right, at no cost or
expense to the Indemnitor, to participate in such defense. If the Indemnitor does not assume the defense of such matter, and in
any event until the Indemnitor states in writing that it will assume the defense, the Indemnitor shall pay all costs of the Indemnified
Party arising out of the defense until the defense is assumed; provided, however, that the Indemnified Party shall consult with
the Indemnitor and obtain the Indemnitor’s prior written consent to any payment or settlement of any such claim. The Indemnitor
shall keep the Indemnified Party fully apprised at all times as to the status of the defense. If the Indemnitor does not assume
the defense, the Indemnified Party shall keep the Indemnitor apprised at all times as to the status of the defense. Following indemnification
as provided for hereunder, the Indemnitor shall be subrogated to all rights of the Indemnified Party with respect to all third
parties, firms or corporations relating to the matter for which indemnification has been made. |
12. Other Matters.
| (a) | All covenants, agreements, representations, and warranties made under this Agreement and any certificates
delivered pursuant to this Agreement shall be deemed to have been material and relied upon by each of the parties, notwithstanding
any investigation made by them or on their behalf. |
| (b) | All notices hereunder shall be sufficiently given for all purposes hereunder if in writing and
delivered personally or sent by registered mail or certified mail, postage prepaid. Notice to the Acquired Fund shall be addressed
to Xxxx Xxxxxxx ESG All Cap Core Fund, c/o Xxxx Xxxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Chief Legal
Officer, or at such other address as the Acquired Fund may designate by written notice to the Acquiring Fund. Notice to the Acquiring
Fund shall be addressed to Xxxx Xxxxxxx ESG Large Cap Core Fund, c/o Xxxx Xxxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Chief Legal Officer, or at such other address and to the attention of such other person as the Acquiring Fund may designate
by written notice to the Acquired Fund. Any notice shall be deemed to have been served or given as of the date such notice is delivered
personally or mailed. |
| (c) | This Agreement supersedes all previous correspondence and oral communications between the parties
regarding the Reorganization, constitutes the only understanding with respect to the Reorganization, may not be changed except
by a letter of agreement signed by each party and shall be governed by and construed in accordance with the domestic substantive
laws of the Commonwealth of Massachusetts applicable to agreements made and to be performed in said state, without giving effect
to any choice or conflicts of law rule or provision that would result in the application of the domestic substantive laws of any
other jurisdiction. |
| (d) | It is expressly agreed that the obligations of the Trust, on behalf of the Acquired Fund and the
Acquiring Fund, hereunder shall not be binding upon any of its respective trustees, shareholders, nominees, officers, agents, or
employees personally, but shall bind only the trust property of the respective Fund as provided in the Declaration of Trust. The
execution and delivery of this Agreement has been authorized by the Board, on behalf of the Acquired Fund and the Acquiring Fund,
and signed by authorized officers of the Trust, acting as such, and neither such authorization by such trustees, nor such execution
and delivery by such officers shall be deemed to have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the Trust on behalf of the relevant Fund as provided in the Declaration
of Trust, as applicable. |
| (e) | This Agreement may be executed in any number of counterparts, each of which, when executed and
delivered, shall be deemed to be an original but all such counterparts together shall constitute but one instrument. |
THE REST OF THIS PAGE IS INTENTIONALLY BLANK.
IN WITNESS WHEREOF, the parties have hereunto caused this
Agreement to be executed and delivered by their duly authorized officers as of the day and year first written above.
XXXX XXXXXXX INVESTMENT TRUST,
on behalf of its series, XXXX XXXXXXX ESG ALL CAP CORE FUND
and XXXX XXXXXXX ESG LARGE CAP CORE FUND
| By: |
/s/ Xxxxxx X. Xxxxxx |
|
| Name: |
Xxxxxx X. Xxxxxx |
|
| Title: |
President |
|
Agreed to and accepted as to Section 5 only:
XXXX XXXXXXX INVESTMENT MANAGEMENT LLC
| By: |
/s/ Xxx Xxxxxxxxx |
|
| Name: |
Xxx Xxxxxxxxx |
|
| Title: |
Chief Investment |
|
