Agreement and Plan of Reorganization
This AGREEMENT AND PLAN OF REORGANIZATION
("Agreement") is made as of this 28th day of November,
2008, by and among Domini Social Investment Trust, a
Massachusetts business trust (the "Acquiring Entity"),
with its principal place of business at 000 Xxxxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on behalf of its
series Domini Social Equity Fund (the "Acquiring
Fund"), and Domini Institutional Trust, a
Massachusetts business trust (the "Acquired Entity"),
with its principal place of business at 000 Xxxxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on behalf of its
series Domini Institutional Social Equity Fund (the
"Acquired Fund").
WHEREAS, each of the Acquired Fund and the
Acquiring Fund is a series of an open-end management
investment company registered pursuant to the
Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, it is intended that, for United States
federal income tax purposes (i) the transactions
contemplated by this Agreement constitute a
"reorganization" within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the
"Code"), and (ii) this Agreement constitute a plan of
reorganization within the meaning of Section 368 of
the Code and Treasury Regulations Section 1.368-2(g);
WHEREAS, the reorganization will consist of (1)
the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the
Acquired Fund to the Acquiring Fund in exchange solely
for (a) shares of beneficial interest of the Acquiring
Fund (the "Acquiring Fund Shares") corresponding in
class to the outstanding shares of beneficial interest
of the Acquired Fund (the "Acquired Fund Shares"), as
described herein, and (b) the assumption by the
Acquiring Fund of all liabilities of the Acquired
Fund, and (2) the subsequent distribution of the
Acquiring Fund Shares (which shall then constitute all
of the assets of the Acquired Fund) to the
shareholders of the Acquired Fund in complete
redemption of the Acquired Fund Shares and the
termination of the Acquired Fund, as provided herein
(the "Reorganization"), all upon the terms and
conditions hereinafter set forth in this Agreement;
WHEREAS, the Board of Trustees of the Acquiring
Entity (the "Acquiring Entity Board") has determined,
with respect to the Acquiring Fund, that the sale,
assignment, conveyance, transfer and delivery of all
of the property and assets of the Acquired Fund for
Acquiring Fund Shares and the assumption of all
liabilities of the Acquired Fund by the Acquiring Fund
is in the best interests of the Acquiring Fund and its
shareholders and that the interests of the existing
shareholders of the Acquiring Fund will not be diluted
as a result of this transaction; and
WHEREAS, the Board of Trustees of the Acquired
Entity (the "Acquired Entity Board") has determined,
with respect to the Acquired Fund, that the sale,
assignment, conveyance, transfer and delivery of all
of the property and assets of the Acquired Fund for
Acquiring Fund Shares and the assumption of all
liabilities of the Acquired Fund by the Acquiring Fund
is in the best interests of the Acquired Fund and its
shareholders and that the interests of the existing
shareholders of the Acquired Fund will not be diluted
as a result of this transaction;
NOW, THEREFORE, in consideration of the premises
and of the covenants and agreements hereinafter set
forth, the parties hereto covenant and agree as
follows:
1. TRANSFER OF ASSETS OF THE
ACQUIRED FUND TO THE
ACQUIRING FUND IN EXCHANGE
FOR ACQUIRING FUND SHARES,
THE ASSUMPTION OF ALL
ACQUIRED FUND LIABILITIES AND
THE TERMINATION OF THE
ACQUIRED FUND
1.1 Subject to requisite approvals and the
other terms and conditions herein set forth and on the
basis of the representations and warranties contained
herein, the Acquired Entity, on behalf of the Acquired
Fund, agrees to sell, assign, convey, transfer and
deliver all of its property and assets attributable to
the Acquired Fund, as set forth in paragraph 1.2, to
the Acquiring Fund, and the Acquiring Entity, on
behalf of the Acquiring Fund, agrees in exchange
therefor: (a) to deliver to the Acquired Fund the
number of full and fractional Acquiring Fund Shares
corresponding to the Acquired Fund Shares as of the
time and date set forth in paragraph 3.1, determined
by dividing the value of the Acquired Entity's net
assets with respect to the Acquired Fund (computed in
the manner and as of the time and date set forth in
Article 2) by the net asset value of one share of the
corresponding class of Acquiring Fund Shares (computed
in the manner and as of the time and date set forth in
Article 2); and (b) to assume all liabilities of such
Acquired Fund as set forth in paragraph 1.2. Such
transactions shall take place on a closing date as
provided for in paragraph 3.1 (the "Closing Date").
For purposes of this Agreement, shares of the Acquired
Fund correspond to the Institutional Shares of the
Acquiring Fund, and the term "Acquiring Fund Shares"
shall be read to mean such class of shares of the
Acquiring Fund.
1.2 The property and assets of the Acquired
Entity attributable to the Acquired Fund to be sold,
assigned, conveyed, transferred and delivered to and
acquired by the Acquiring Entity, on behalf of the
Acquiring Fund, shall consist of all assets and
property of every kind and nature of the Acquired
Fund, including, without limitation, all rights,
receivables (including dividend, interest and other
receivables), cash, cash equivalents, claims (whether
absolute or contingent, known or unknown), securities,
commodities and futures interests, good will and other
intangible property, any deferred or prepaid expenses
and all interests, rights, privileges and powers, the
Acquired Fund owns at the Valuation Date (as defined
in paragraph 2.1) (collectively, "Assets"). The
Acquiring Entity, on behalf of the Acquiring Fund,
shall assume all of the liabilities and obligations of
the Acquired Fund, including, without limitation, all
indemnification obligations of such Acquired Fund with
respect to the current and former Board Members and
officers of the Acquired Entity, whether accrued or
contingent, known or unknown, existing at the
Valuation Date (collectively, "Liabilities"). The
Acquired Fund will promptly sell, assign, convey,
transfer and deliver to the Acquiring Entity, on
behalf of the Acquiring Fund, any rights, stock
dividends, cash dividends or other securities received
by the Acquired Fund after the Closing Date as stock
dividends, cash dividends or other distributions on or
with respect to the property and assets transferred,
which rights, stock dividends, cash dividends and
other securities shall be deemed included in the
property and assets transferred to the Acquiring
Entity, on behalf of the Acquiring Fund, at the
Closing Date and shall not be separately valued, in
which case any such distribution that remains unpaid
as of the Closing Date shall be included in the
determination of the value of the assets of the
Acquired Fund acquired by the Acquiring Entity on
behalf of the Acquiring Fund.
1.3 Immediately following the actions
contemplated by paragraph 1.1, the Acquired Entity
shall take such actions as may be necessary or
appropriate to complete the liquidation of the
Acquired Fund. To complete the liquidation, the
Acquired Entity, on behalf of the Acquired Fund, shall
(a) distribute to the shareholders of record of the
Acquired Fund Shares as of the Closing Date ("Acquired
Fund Shareholders"), on a pro rata basis, the
Acquiring Fund Shares received by the Acquired Entity,
on behalf of the Acquired Fund, pursuant to paragraph
1.1, in complete redemption of such Acquired Fund
Shares, and (b) terminate the Acquired Fund in
accordance with applicable Massachusetts law. Such
distribution and redemption shall be accomplished,
with respect to the Acquired Fund Shares, by the
transfer of the Acquiring Fund Shares then credited to
the account of the Acquired Fund on the books of the
Acquiring Fund to open accounts on the share records
of the Acquiring Fund in the names of the Acquired
Fund Shareholders. The aggregate net asset value of
the Acquiring Fund Shares to be so credited to each of
the Acquired Fund Shareholders shall be equal to the
aggregate net asset value of the Acquired Fund Shares
owned by those Acquired Fund Shareholders on the
Closing Date. All issued and outstanding Acquired
Fund Shares will be canceled on the books of the
Acquired Fund. The Acquiring Fund shall not issue
certificates representing any class of Acquiring Fund
Shares in connection with such exchange.
1.4 Ownership of Acquiring Fund Shares will be
shown on the books of the Acquiring Fund as maintained
by the Acquiring Fund's transfer agent.
1.5 Any reporting responsibility of the
Acquired Fund, including, but not limited to, the
responsibility for filing regulatory reports, tax
returns, or other documents with the Securities and
Exchange Commission ("Commission"), any state
securities commission, and any federal, state or local
tax authorities or any other relevant regulatory
authority, is and shall remain the responsibility of
the Acquired Entity, on behalf of such Acquired Fund.
The Acquiring Entity shall fully cooperate to the
extent necessary or desirable for these
responsibilities to be discharged.
1.6 As promptly as practicable following the
Reorganization of the Acquired Fund, the Acquired
Entity will take all necessary action to effect its
deregistration as an investment company in accordance
with the rules and regulations of the Commission and
shall subsequently voluntarily dissolve in accordance
with the requirements of Massachusetts law.
2. VALUATION
The value of the Assets and the amount of the
Liabilities of the Acquired Fund shall be determined
as of the time for calculation of its net asset value
as set forth in the then-current prospectus for the
Acquired Fund, and after the declaration of any
dividends by the Acquired Fund, on the applicable
Closing Date (such time and date being hereinafter
called the "Valuation Date"), computed using the
valuation procedures established by the Acquired
Entity Board. All computations of value and amounts
shall be made by the fund accountant for the Acquired
Fund. The net asset value of Acquiring Fund Shares
shall be determined as of the time for calculation of
its net asset value as set forth in the then-current
prospectus for the Acquiring Fund, and after the
declaration of any dividends on behalf of the
Acquiring Fund, on the Closing Date (such time and
date being hereinafter called the "Valuation Date"),
computed using the valuation procedures established by
the Acquiring Entity Board. All computations of value
and amounts shall be made by the fund accountant for
the Acquired Fund or the Acquiring Fund, as
applicable.
3. CLOSING AND CLOSING DATE
3.1 Subject to the terms and conditions set
forth herein, the Closing Date shall be November 28,
2008, or such other date as the parties may agree.
All acts taking place at the closing of the
transactions provided for in this Agreement
("Closing") shall be deemed to take place
simultaneously as of the "close of business" on the
Closing Date unless otherwise agreed to by the
parties. The close of business on the Closing Date
shall be as of the close of regular trading on the New
York Stock Exchange or such later time on that date as
the Acquired Fund's net asset value and/or the net
asset value per share of the class of shares of the
Acquiring Fund is calculated in accordance with
paragraph 2 and after the declaration of any
dividends. The Closing shall be held at the offices
of Xxxxxxx XxXxxxxxx LLP or at such other time and/or
place as the parties may agree.
3.2 The Acquired Entity shall direct State
Street Bank and Trust Company (the "Custodian") to
transfer ownership of the Assets from the accounts of
the applicable Acquired Fund that the Custodian
maintains as custodian for the Acquired Fund to the
accounts of the Acquiring Fund that the Custodian
maintains as custodian for the Acquiring Fund and to
deliver to the Acquiring Entity, at the Closing, a
certificate of an authorized officer stating that (i)
the Assets of the Acquired Fund have been so
transferred as of the Closing Date, and (ii) all
necessary taxes in connection with the delivery of the
Assets of the Acquired Fund, including all applicable
federal and state stock transfer stamps, if any, have
been paid or provision for payment has been made.
3.3 The Acquired Entity shall direct PNC Global
Investment Servicing (U.S.) Inc., in its capacity as
transfer agent for the Acquired Fund ("Transfer
Agent"), to deliver to the Acquiring Entity at the
Closing a certificate of an authorized officer stating
that its records contain the name and address of the
Acquired Fund Shareholder and the number and
percentage ownership of the outstanding Acquired Fund
Shares owned by the shareholder immediately prior to
the Closing. The Acquiring Fund shall deliver to the
Secretary of the Acquired Fund a confirmation
evidencing that (a) the appropriate number of
Acquiring Fund Shares have been credited to the
Acquired Fund's account on the books of such Acquiring
Fund pursuant to paragraph 1.1 prior to the actions
contemplated by paragraph 1.3 and (b) the appropriate
number of Acquiring Fund Shares have been credited to
the accounts of the Acquired Fund Shareholders on the
books of such Acquiring Fund pursuant to paragraph
1.3. At the applicable Closing, each party shall
deliver to the other party such bills of sale, checks,
assignments, share certificates, if any, receipts or
other documents as the other party or its counsel may
reasonably request.
3.4 In the event that on the Valuation Date (a)
the New York Stock Exchange or another primary trading
market for portfolio securities of the Acquiring Fund
or the Acquired Fund (each, an "Exchange") shall be
closed to trading or trading thereupon shall be
restricted, or (b) trading or the reporting of trading
on such Exchange or elsewhere shall be disrupted so
that accurate appraisal of the value of the net assets
of such Acquired Fund or such Acquiring Fund is
impracticable (in the judgment of the Acquiring Entity
Board with respect to such Acquiring Fund and the
Acquired Entity Board with respect to such Acquired
Fund), the Closing Date shall be postponed until the
first Friday (that is also a business day) after the
day when trading shall have been fully resumed and
reporting shall have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1 Except as has been fully disclosed to the
Acquiring Entity in Schedule 4.1 of this Agreement,
the Acquired Entity, on behalf of the Acquired Fund,
represents and warrants to the Acquiring Entity and
the Acquiring Fund as follows:
(a) Such Acquired Fund is duly established as
a series of the Acquired Entity, which is a
corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of
Massachusetts, with power under its Declaration of
Trust, as amended (the "Acquired Entity Charter"), to
own all of its assets and to carry on its business as
it is being conducted as of the date hereof. The
Acquired Entity is duly qualified to do business as a
foreign trust in each jurisdiction in which the
conduct of its business makes such qualification
necessary except where the failure to so qualify would
not have a material adverse effect on the condition
(financial or otherwise), business, properties, net
assets or results of operations of the Acquired
Entity. The Acquired Entity has all necessary
federal, state and local authorization to carry on its
business as now being conducted and to fulfill the
terms of this Agreement, except as set forth in
paragraph 4.1(c).
(b) The Acquired Entity is a registered open-
end management investment company, and its
registration with the Commission as an investment
company under the 1940 Act, and the registration of
the class of Acquired Fund Shares under the Securities
Act of 1933, as amended ("1933 Act"), is in full force
and effect.
(c) No consent, approval, authorization, or
order of any court or governmental authority is
required for the consummation by the Acquired Fund of
the transactions contemplated herein, except such as
may be required under the 1933 Act, the Securities
Exchange Act of 1934 ("1934 Act"), the 0000 Xxx, xxxxx
securities laws and the Xxxx-Xxxxx-Xxxxxx Act.
(d) The current prospectus and statement of
additional information of such Acquired Fund (true and
correct copies of which have been delivered to the
Acquiring Entity) and each prospectus and statement of
additional information of the Acquired Fund used
during the three (3) years prior to the date of this
Agreement conforms or conformed at the time of its use
in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the
rules and regulations of the Commission thereunder and
does not or did not at the time of its use include any
untrue statement of a material fact or omit to state
any material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
materially misleading.
(e) On the Closing Date, the Acquired Entity,
on behalf of such Acquired Fund, will have good and
marketable title to such Acquired Fund's Assets and
full right, power and authority to sell, assign,
convey, transfer and deliver such Assets hereunder
free of any liens or other encumbrances, and upon
delivery and payment for the Assets, the Acquiring
Entity, on behalf of the Acquiring Fund, will acquire
good and marketable title thereto, subject to no
restrictions on the full transfer thereof, excluding
such restrictions as might arise under the 1933 Act.
(f) The Acquired Fund is not engaged
currently, and the execution, delivery and performance
of this Agreement by the Acquired Entity, on behalf of
such Acquired Fund, will not result, in a material
violation of Massachusetts law or of the Acquired
Entity Charter or the by-laws of the Acquired Entity,
or of any agreement, indenture, instrument, contract,
lease or other undertaking to which the Acquired
Entity, on behalf of such Acquired Fund, is a party or
by which it is bound, and the execution, delivery and
performance of this Agreement by the Acquired Entity,
on behalf of such Acquired Fund, will not result in
the acceleration of any material obligation, or the
imposition of any material penalty, under any
agreement, indenture, instrument, contract, lease,
judgment or decree to which the Acquired Entity, on
behalf of such Acquired Fund, is a party or by which
it is bound.
(g) All material contracts or other
commitments of such Acquired Fund (other than this
Agreement, certain investment contracts, including
options, futures, swaps and forward contracts, the
indemnification agreements of the current and former
members of the Acquired Entity Board, and those
contracts listed in Schedule 4.1) will terminate
without liability to such Acquired Fund on or prior to
the Closing Date. Each contract listed in Schedule
4.1 is a valid, binding and enforceable obligation of
such Acquired Fund and, to the Acquired Fund's
knowledge, the other parties thereto (assuming due
authorization, execution and delivery by the other
parties thereto) and the assignment by such Acquired
Fund to the Acquiring Fund of each such contract will
not result in the termination of such contract, any
breach or default thereunder by such Acquired Fund or
the imposition of any penalty thereunder.
(h) No litigation or administrative
proceeding or investigation of or before any court or
governmental body is presently pending or, to the
Acquired Entity's knowledge, threatened against the
Acquired Entity, with respect to such Acquired Fund or
any of its properties or assets, that, if adversely
determined, would materially and adversely affect its
financial condition or the conduct of such Acquired
Fund's business. The Acquired Entity, on behalf of
such Acquired Fund, is not a party to or subject to
the provisions of any order, decree or judgment of any
court or governmental body which materially and
adversely affects such Acquired Fund's business or the
Acquired Entity's ability to consummate the
transactions herein contemplated on behalf of such
Acquired Fund.
(i) The Statement of Assets and Liabilities,
Statements of Operations and Changes in Net Assets and
Schedule of Investments of such Acquired Fund as at
the last day of and for the most recently completed
fiscal year of such Acquired Fund prior to the date of
this Agreement, have been audited by KPMG LLP,
independent registered public accounting firm, and are
in accordance with accounting principles generally
accepted in the United States of America ("GAAP")
consistently applied, and such statements (true and
correct copies of which have been furnished to the
Acquiring Entity) present fairly, in all material
respects, the financial condition of such Acquired
Fund as of such date and for such period in accordance
with GAAP, and there are no known contingent, accrued
or other liabilities of such Acquired Fund required to
be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of such date that
are not disclosed therein.
(j) Since the last day of the most recently
completed fiscal year of such Acquired Fund prior to
the date of this Agreement, there has not been any
material adverse change in such Acquired Fund's
financial condition, assets, liabilities or business,
other than changes occurring in the ordinary course of
business, or any incurrence by the Acquired Fund of
indebtedness for money borrowed maturing more than one
year from the date such indebtedness was incurred.
For the purposes of this subparagraph (j), a decline
in net asset value per share of Acquired Fund Shares
due to declines in market values of securities held by
such Acquired Fund, the discharge of Acquired Fund
liabilities, or the redemption of Acquired Fund Shares
by shareholders of such Acquired Fund shall not
constitute a material adverse change.
(k) All federal and other tax returns,
dividend reporting forms and other tax-related reports
of such Acquired Fund required by law to have been
filed (taking into account any extensions) shall have
been timely filed (taking such extensions into
account) and shall be correct in all material
respects, and all federal and other taxes shown as due
or required to be shown as due from the Acquired Fund
on said returns, forms and reports shall have been
paid or provision shall have been made for the payment
thereof and, to the best of the Acquired Entity's
knowledge, no such return is currently under audit and
no outstanding assessment has been asserted with
respect to such returns.
(l) Such Acquired Fund is a separate series
of the Acquired Entity that is treated as a
corporation separate from any and all other series of
the Acquired Entity under Section 851(g) of the Code.
For each taxable year of its operation (including the
current taxable year, assuming such year ends on the
Closing Date), such Acquired Fund has met (or will
meet) the requirements of Subchapter M of Chapter 1 of
the Code for qualification and treatment as a
"regulated investment company," has elected to be
treated as such, and has been (or will be) eligible to
compute and has computed (or will compute) its federal
income tax under Section 852 of the Code. For each
taxable year of its operation (including the current
taxable year, assuming such year ends on the Closing
Date), such Acquired Fund will have distributed on or
before the Closing Date substantially all of (a) its
investment company taxable income (as defined in the
Code) (computed without regard to any deduction for
dividends paid), (b) the excess of its interest income
excludable from gross income under Section 103(a) of
the Code, if any, over its deductions disallowed under
Section 265 and Section 171(a)(2) of the Code, and (c)
any net capital gain (as defined in the Code) (after
reduction for any allowable capital loss carryover)
that has accrued or been recognized, respectively,
through the Closing Date such that for all tax periods
ending on or before the Closing Date (and treating the
current tax year as ending on the Closing Date) such
Acquired Fund will not have any unpaid tax liability
under Section 852 of the Code. For each calendar year
of its operation (including the calendar year that
includes the Closing Date), such Acquired Fund will
have made such distributions, on or before the Closing
Date, as are necessary so that for all calendar years
ending on or before the Closing Date, and for the
calendar year that includes the Closing Date, such
Acquired Fund will not have any unpaid tax liability
under Section 4982 of the Code.
(m) All issued and outstanding Acquired Fund
Shares of such Acquired Fund are, and on the Closing
Date will be, duly authorized and validly and legally
issued and outstanding, fully paid and non-assessable
by the Acquired Entity and have been offered and sold
in any state, territory or the District of Columbia in
compliance in all material respects with applicable
registration requirements of all applicable federal
and state securities laws. All of the issued and
outstanding Acquired Fund Shares of such Acquired Fund
will, at the time of Closing, be held by the persons
and in the amounts set forth in the records of the
Transfer Agent, on behalf of such Acquired Fund, as
provided in paragraph 3.3. Such Acquired Fund does
not have outstanding any options, warrants or other
rights to subscribe for or purchase any of the
Acquired Fund Shares of such Acquired Fund, nor is
there outstanding any security convertible into any of
the Acquired Fund Shares of such Acquired Fund.
(n) The execution, delivery and performance
of this Agreement, and the transactions contemplated
herein, have been duly authorized by all necessary
action on the part of the Acquired Entity Board, on
behalf of such Acquired Fund, and this Agreement
constitutes a valid and binding obligation of the
Acquired Entity, on behalf of such Acquired Fund,
enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to
or affecting creditors' rights and to general equity
principles.
(o) The provisions of the Acquired Entity
Charter, the bylaws of the Acquired Entity, and
Massachusetts law do not require the shareholders of
the Acquired Entity, on behalf of the Acquired Fund,
to approve this Agreement or the transactions
contemplated herein in order for the Acquired Entity,
on behalf of the Acquired Fund, to consummate the
transactions contemplated herein with respect to the
Acquired Fund.
(p) The information to be furnished by the
Acquired Entity, on behalf of such Acquired Fund, for
use in the registration statement on Form N-1A of the
Acquiring Entity with respect to the Acquiring Fund
and other documents filed or to be filed with any
federal, state or local regulatory authority, which
may be necessary in connection with the transactions
contemplated hereby, shall be accurate and complete in
all material respects and shall comply in all material
respects with federal securities and other laws and
regulations thereunder applicable thereto.
4.2 Except as has been fully disclosed to the
Acquired Entity in Schedule 4.2 to this Agreement, the
Acquiring Entity, on behalf of the Acquiring Fund,
represents and warrants to the Acquired Entity and the
Acquired Fund as follows:
(a) Such Acquiring Fund is duly established
as a series of the Acquiring Entity, which is a
business trust duly organized, validly existing and in
good standing under the laws of the Commonwealth of
Massachusetts, with the power under the Acquiring
Entity's Declaration of Trust, as amended (the
"Acquiring Entity Charter"), to own all of the assets
of such Acquiring Fund and to carry on its business as
it is being conducted as of the date hereof. The
Acquiring Entity is duly qualified to do business as a
foreign trust in each jurisdiction in which the
conduct of its business makes such qualification
necessary except where the failure to so qualify would
not have a material adverse effect on the condition
(financial or otherwise), business, properties, net
assets or results of operations of the Acquiring
Entity. The Acquiring Entity has all necessary
federal, state and local authorization to carry on its
business as now being conducted and to fulfill the
terms of this Agreement except as described in
paragraph 4.2(c).
(b) The Acquiring Entity is a registered
open-end management investment company, and its
registration with the Commission as an investment
company under the 1940 Act, and the registration of
the class of Acquiring Fund Shares under the 1933 Act,
is in full force and effect or will be in full force
and effect as of the Closing Date.
(c) No consent, approval, authorization, or
order of any court or governmental authority is
required for the consummation by the Acquiring Fund of
the transactions contemplated herein, except such as
may be required under the 1933 Act, the 1934 Act, the
1940 Act, state securities laws and the Xxxx-Xxxxx-
Xxxxxx Act.
(d) The current prospectus and statement of
additional information of such Acquiring Fund (true
and correct copies of which have been delivered to the
Acquired Entity) and each prospectus and statement of
additional information of such Acquiring Fund used
during the three (3) years prior to the date of this
Agreement conforms or conformed at the time of its use
in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the
rules and regulations of the Commission thereunder and
does not or did not at the time of its use include any
untrue statement of a material fact or omit to state
any material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
materially misleading.
(e) Such Acquiring Fund is not engaged
currently, and the execution, delivery and performance
of this Agreement by the Acquiring Entity, on behalf
of such Acquiring Fund, will not result, in a material
violation of Massachusetts law or the Acquiring Entity
Charter or the by-laws of the Acquiring Entity, or of
any agreement, indenture, instrument, contract, lease
or other undertaking to which the Acquiring Entity, on
behalf of such Acquiring Fund, is a party or by which
it is bound, and the execution, delivery and
performance of this Agreement by the Acquiring Entity,
on behalf of such Acquiring Fund, will not result in
the acceleration of any material obligation, or the
imposition of any material penalty, under any
agreement, indenture, instrument, contract, lease,
judgment or decree to which the Acquiring Entity, on
behalf of such Acquiring Fund, is a party or by which
it is bound.
(f) No litigation or administrative
proceeding or investigation of or before any court or
governmental body is presently pending or, to the
Acquiring Entity's knowledge, threatened against the
Acquiring Entity, with respect to such Acquiring Fund,
or any of its properties or assets, that, if adversely
determined, would materially and adversely affect its
financial condition or the conduct of such Acquiring
Fund's business. The Acquiring Entity, on behalf of
such Acquiring Fund, is not a party to or subject to
the provisions of any order, decree or judgment of any
court or governmental body which materially and
adversely affects such Acquiring Fund's business or
the Acquiring Entity's ability to consummate the
transactions herein contemplated on behalf of such
Acquiring Fund.
(g) The Statement of Assets and Liabilities,
Statements of Operations and Changes in Net Assets and
Schedule of Investments of such Acquiring Fund as at
the last day of and for the most recently completed
fiscal year of such Acquiring Fund prior to the date
of this Agreement, have been audited by KPMG LLP,
independent registered public accounting firm, and are
in accordance with GAAP consistently applied, and such
statements (true and correct copies of which have been
furnished to the Acquired Entity) present fairly, in
all material respects, the financial condition of such
Acquiring Fund as of such date and for such period in
accordance with GAAP, and there are no known
contingent, accrued or other liabilities of such
Acquiring Fund required to be reflected on a balance
sheet (including the notes thereto) in accordance with
GAAP as of such date that are not disclosed therein.
(h) Since the last day of the most recently
completed fiscal year of such Acquiring Fund prior to
the date of this Agreement, there has not been any
material adverse change in such Acquiring Fund's
financial condition, assets, liabilities or business,
other than changes occurring in the ordinary course of
business, or any incurrence by such Acquiring Fund of
indebtedness for money borrowed maturing more than one
year from the date such indebtedness was incurred.
For the purposes of this subparagraph (h), a decline
in net asset value per share of Acquiring Fund Shares
due to declines in market values of securities held by
such Acquiring Fund, the discharge of Acquiring Fund
liabilities, or the redemption of Acquiring Fund
Shares by shareholders of such Acquiring Fund shall
not constitute a material adverse change.
(i) All federal and other tax returns,
dividend reporting forms and other tax-related reports
of such Acquiring Fund required by law to have been
filed (taking into account any extensions) shall have
been timely filed (taking such extensions into
account) and shall be correct in all material
respects, and all federal and other taxes shown as due
or required to be shown as due from the Acquiring Fund
on said returns, forms and reports shall have been
paid or provision shall have been made for the payment
thereof and, to the best of the Acquiring Entity's
knowledge, no such return is currently under audit and
no outstanding assessment has been asserted with
respect to such returns.
(j) Such Acquiring Fund is a separate series
of the Acquiring Entity that is treated as a
corporation separate from any and all other series of
the Acquiring Entity under Section 851(g) of the Code.
For each taxable year of its operation (including the
taxable year that includes the Closing Date), such
Acquiring Fund has met (or will meet) the requirements
of Subchapter M of Chapter 1 of the Code for
qualification and treatment as a "regulated investment
company," has elected to be treated as such, and has
been (or will be) eligible to compute and has computed
(or will compute) its federal income tax under Section
852 of the Code. For each taxable year of its
operation ending prior to the Closing Date, such
Acquiring Fund will have distributed (or will
distribute pursuant to the provisions of Section 855
of the Code) substantially all of (a) its investment
company taxable income (as defined in the Code)
(computed without regard to any deduction for
dividends paid), (b) the excess of its interest income
excludable from gross income under Section 103(a) of
the Code, if any, over its deductions disallowed under
Section 265 and Section 171(a)(2) of the Code, and (c)
any net capital gain (as defined in the Code) (after
reduction for any capital loss carryover) such that
for all tax periods ending prior to the Closing Date
such Acquiring Fund will not have any unpaid tax
liability under Section 852 of the Code. For each
calendar year of its operation ending prior to the
Closing Date, such Acquiring Fund will have made such
distributions as are necessary so that for all
calendar years ending prior to the Closing Date such
Acquiring Fund will not have any unpaid tax liability
under Section 4982 of the Code.
(k) All issued and outstanding Acquiring Fund
Shares are, and on the Closing Date will be, duly
authorized and validly and legally issued and
outstanding, fully paid and non-assessable by the
Acquiring Entity and will have been offered and sold
in any state, territory or the District of Columbia in
compliance in all material respects with applicable
registration requirements of all applicable federal
and state securities laws. Such Acquiring Fund does
not have outstanding any options, warrants or other
rights to subscribe for or purchase any Acquiring Fund
Shares, nor is there outstanding any security
convertible into any Acquiring Fund Shares. All of
the Acquiring Fund Shares to be issued and delivered
to the Acquired Entity, for the account of the
Acquired Fund Shareholders, pursuant to this
Agreement, will on the Closing Date have been duly
authorized and, when so issued and delivered, will be
duly and validly and legally issued Acquiring Fund
Shares and be fully paid and non-assessable by the
Acquiring Entity.
(l) The execution, delivery and performance
of this Agreement, and the transactions contemplated
herein, have been duly authorized by all necessary
action on the part of the Acquiring Entity Board, on
behalf of such Acquiring Fund, and this Agreement
constitutes a valid and binding obligation of the
Acquiring Entity, on behalf of such Acquiring Fund,
enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to
or affecting creditors' rights and to general equity
principles.
(m) The information to be furnished by such
Acquiring Fund for use in the registration statement
on Form N-1A of the Acquiring Entity with respect to
the Acquiring Fund and other documents filed or to be
filed with any federal, state or local regulatory
authority, which may be necessary in connection with
the transactions contemplated hereby, shall be
accurate and complete in all material respects and
shall comply in all material respects with federal
securities and other laws and regulations thereunder
applicable thereto, and shall not, as of the effective
date of such registration statement, 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 not
materially misleading.
5. COVENANTS
The Acquired Entity, on behalf of the Acquired
Fund, and the Acquiring Entity, on behalf of the
Acquiring Fund, respectively, hereby further covenant
as follows:
5.1 The Acquired Fund and the Acquiring Fund
each will operate its business in the ordinary course
and shall comply in all material respects with all
applicable laws, rules and regulations between the
date hereof and the Closing Date, it being understood
that such ordinary course of business will include the
declaration and payment of customary dividends and
other distributions, and any other distribution that
may be advisable.
5.2 The Acquiring Fund Shares to be acquired by
such Acquired Fund hereunder are not being acquired
for the purpose of making any distribution thereof,
other than in accordance with the terms of this
Agreement.
5.3 The Acquired Entity, on behalf of the
Acquired Fund, will assist the Acquiring Entity in
obtaining such information as the Acquiring Entity
reasonably requests concerning the beneficial
ownership of the Acquired Fund Shares.
5.4 Subject to the provisions of this
Agreement, the Acquiring Entity, on behalf of the
Acquiring Fund, and the Acquired Entity, on behalf of
the Acquired Fund, each will take, or cause to be
taken, all action, and do or cause to be done, all
things reasonably necessary, proper or advisable to
consummate and make effective the transactions
contemplated by this Agreement.
5.5 Each of the Acquiring Entity, on behalf of
the Acquiring Fund, and the Acquired Entity, on behalf
of the Acquired Fund, will use its reasonable best
efforts to fulfill or obtain the fulfillment of the
conditions precedent to effect the transactions
contemplated by this Agreement as promptly as
practicable.
5.6 The Acquired Entity, on behalf of the
Acquired Fund, will, from time to time, as and when
reasonably requested by the Acquiring Entity, execute
and deliver or cause to be executed and delivered all
such assignments and other instruments and will take
or cause to be taken such further action as the
Acquiring Entity, on behalf of the Acquiring Fund, may
reasonably deem necessary or desirable in order to
vest in and confirm (a) the Acquired Entity's title to
and possession of the Acquiring Fund Shares to be
delivered hereunder and (b) the Acquiring Entity's
title to and possession of all the Assets and to
otherwise to carry out the intent and purpose of this
Agreement.
5.9 The Acquiring Entity, on behalf of 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 blue
sky or securities laws as may be necessary in order to
continue its operations after the Closing Date.
6. CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE ACQUIRED
FUND
The obligations of the Acquired Entity, on behalf
of the Acquired Fund, to consummate the transactions
provided for herein shall be subject, at the Acquired
Entity's election, to the following conditions:
6.1 All representations and warranties of the
Acquiring Entity, on behalf of such Acquiring Fund,
contained in this Agreement shall be true and correct
in all material respects as of the date hereof and,
except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing
Date, with the same force and effect as if made on and
as of the Closing Date.
6.2 The Acquiring Entity, on behalf of such
Acquiring Fund, shall have performed all of the
covenants and complied with all of the provisions
required by this Agreement to be performed or complied
with by the Acquiring Entity, on behalf of such
Acquiring Fund, on or before the Closing Date.
6.3 The Acquiring Entity, on behalf of such
Acquiring Fund, shall have executed and delivered an
assumption of the Liabilities of the Acquired Fund and
all such other agreements and instruments as the
Acquired Entity may reasonably deem necessary or
desirable in order to vest in and confirm (a) such
Acquired Fund's title to and possession of the
Acquiring Fund Shares to be delivered hereunder and
(b) the Acquiring Entity's assumption of all of the
Liabilities and to otherwise to carry out the intent
and purpose of this Agreement.
6.4 The Acquiring Entity, on behalf of such
Acquiring Fund, shall have delivered to such Acquired
Fund a certificate executed in the name of the
Acquiring Entity, on behalf of such Acquiring Fund, by
the Acquiring Entity's President or Vice President and
its Treasurer or Assistant Treasurer, in a form
reasonably satisfactory to the Acquired Entity and
dated as of the Closing Date, as to the matters set
forth in paragraphs 6.1 and 6.2 and as to such other
matters as the Acquired Entity shall reasonably
request.
6.5 The Acquiring Entity, on behalf of such
Acquiring Fund, and the Acquired Entity, on behalf of
the Acquired Fund, shall have agreed on the number of
full and fractional Acquiring Fund Shares to be issued
in connection with the Reorganization after such
number has been calculated in accordance with
paragraph 1.1.
7. CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE ACQUIRING
FUND
The obligations of the Acquiring Entity, on behalf
of the Acquiring Fund, to consummate the transactions
provided for herein shall be subject, at the Acquiring
Entity's election, to the following conditions with
respect to the applicable Acquiring Fund:
7.1 All representations and warranties of the
Acquired Entity, on behalf of such Acquired Fund,
contained in this Agreement shall be true and correct
in all material respects as of the date hereof and,
except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing
Date, with the same force and effect as if made on and
as of the Closing Date.
7.2 The Acquired Entity, on behalf of such
Acquired Fund, shall have performed all of the
covenants and complied with all of the provisions
required by this Agreement to be performed or complied
with by the Acquired Entity, on behalf of such
Acquired Fund, on or before the Closing Date.
7.3 The Acquired Entity shall have delivered to
the Acquiring Entity, on behalf of such Acquiring
Fund, a Statement of Assets and Liabilities of the
Acquired Fund as of the Closing Date, including a
schedule of investments, certified by the Treasurer of
the Acquired Entity on behalf of such Acquired Fund.
The Acquired Entity, on behalf of such Acquired Fund,
shall have executed and delivered all such assignments
and other instruments of transfer as the Acquiring
Entity may reasonably deem necessary or desirable in
order to vest in and confirm (a) the Acquired Fund's
title to and possession of the Acquiring Fund Shares
to be delivered hereunder and (b) the Acquiring Fund's
title to and possession of all the Assets and to
otherwise to carry out the intent and purpose of this
Agreement.
7.4 The Acquired Entity, on behalf of such
Acquired Fund, shall have delivered to the Acquiring
Entity a certificate executed in the name of the
Acquired Entity, on behalf of such Acquired Fund, by
the Acquired Entity's President or Vice President and
its Treasurer or Assistant Treasurer, in a form
reasonably satisfactory to the Acquiring Entity and
dated as of the Closing Date, as to the matters set
forth in paragraphs 7.1 and 7.2 and as to such other
matters as the Acquiring Entity shall reasonably
request.
7.5 The Acquired Entity, on behalf of such
Acquired Fund, and the Acquiring Entity, on behalf of
the Acquiring Fund, shall have agreed on the number of
full and fractional Acquiring Fund Shares to be issued
by such Acquiring Fund in connection with the
Reorganization after such number has been calculated
in accordance with paragraph 1.1.
8. FURTHER CONDITIONS PRECEDENT
TO OBLIGATIONS OF THE
ACQUIRING FUND AND THE
ACQUIRED FUND
If any of the conditions set forth below have not
been satisfied on or before the Closing Date with
respect to the Acquired Entity, on behalf of the
Acquired Fund, or the Acquiring Entity, on behalf of
the Acquiring Fund, the other party to this Agreement
shall be entitled on behalf of the Acquired Fund or
Acquiring Fund, as applicable, at its option, to
refuse to consummate the transactions contemplated by
this Agreement with respect to the Acquired Fund and
its Acquiring Fund:
8.1 On the applicable Closing Date, no court or
governmental agency of competent jurisdiction shall
have issued any order that remains in effect and that
restrains or enjoins the Acquired Entity, with respect
to such Acquired Fund, or the Acquiring Entity, with
respect to such Acquiring Fund, from completing the
transactions contemplated by this Agreement.
8.2 All consents of other parties and all other
consents, orders and permits of federal, state and
local regulatory authorities deemed necessary by the
Acquiring Entity or the Acquired Entity to permit
consummation, in all material respects, of the
transactions contemplated hereby shall have been
obtained, except where failure to obtain any such
consent, order or permit would not involve a risk of a
material adverse effect on the assets or properties of
such Acquiring Fund or such Acquired Fund, provided
that either party hereto may for itself waive any of
such conditions.
8.3 The registration statement of the Acquiring
Entity with respect to Institutional Shares of the
Acquiring Fund shall have become effective under the
1933 Act and no stop orders suspending the
effectiveness thereof shall have been issued and, to
the best knowledge of the parties hereto, no
investigation or proceeding for that purpose shall
have been instituted or be pending.
8.4 The parties shall have received the opinion
of Xxxxxxx XxXxxxxxx LLP, dated the Closing Date,
substantially to the effect that, based upon certain
facts, assumptions and representations and upon
certifications made by the Acquired Entity, on behalf
of the applicable Acquired Fund, the Acquiring Entity,
on behalf of the applicable Acquiring Fund, and their
respective authorized officers, (i) the Reorganization
will constitute a reorganization within the meaning of
Section 368(a) of the Code, and the Acquired Fund and
the Acquiring 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 such Acquiring Fund upon receipt of the Assets of
the Acquired Fund solely in exchange for the Acquiring
Fund Shares and the assumption by such Acquiring Fund
of the Liabilities of the Acquired Fund; (iii) the
basis in the hands of such Acquiring Fund of the
Assets of such Acquired Fund will be the same as the
basis of such Assets in the hands of the Acquired Fund
immediately prior to the transfer, increased by the
amount of gain (or decreased by the amount of loss),
if any, recognized by the Acquired Fund upon the
transfer; (iv) the holding period of each Asset in the
hands of such Acquiring Fund will include the period
during which the Asset was held by such Acquired Fund
(except where investment activities of the Acquiring
Fund have the effect of reducing or eliminating the
holding period with respect to an asset); (v) no gain
or loss will be recognized by such Acquired Fund upon
the transfer of its Assets to the Acquiring Fund in
exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the Liabilities of
the Acquired Fund, or upon the distribution of the
Acquiring Fund Shares by the Acquired Fund to its
shareholders in complete liquidation except for (A)
any gain or loss that may be recognized with respect
to contracts subject to Section 1256 of the Code, (B)
any gain that may be recognized on the transfer of
stock in a "passive foreign investment company" as
defined in Section 1297(a) of the Code and (C) any
other gain or loss that may be required to be
recognized as a result of the closing of the Acquired
Fund's taxable year or upon the transfer of an Asset
regardless of whether such transfer would otherwise be
a non-taxable transaction under the Code; (vi) no gain
or loss will be recognized by the Acquired Fund
Shareholders of such Acquired Fund upon the exchange
of their Acquired Fund Shares solely for the Acquiring
Fund Shares of the Acquiring Fund as part of the
Reorganization; (vii) the aggregate basis of the
Acquiring Fund Shares that each Acquired Fund
Shareholder receives in connection with the
transaction will be the same as the aggregate basis of
his or her Acquired Fund Shares exchanged therefor;
and (viii) an Acquired Fund shareholder's holding
period for his or her Acquiring Fund Shares will
include the period for which he or she held the
Acquired Fund Shares exchanged therefor, provided that
he or she held such Acquired Fund Shares as capital
assets on the date of the exchange. The delivery of
such opinion is conditioned upon the receipt by
Xxxxxxx XxXxxxxxx LLP of representations it shall
request of the Acquiring Entity and the Acquired
Entity. Notwithstanding anything herein to the
contrary, neither the Acquiring Entity nor the
Acquired Entity may waive the condition set forth in
this paragraph 8.4.
8.5 The Acquiring Entity, on behalf of the
Acquiring Fund, shall have received on the applicable
Closing Date an opinion of Xxxxxxx XxXxxxxxx LLP, in a
form reasonably satisfactory to the Acquiring Entity,
and dated as of the Closing Date, substantially to the
effect that, based upon certain facts and
certifications made by the Acquired Entity, on behalf
of the Acquired Fund, and its authorized officers: (a)
the Acquired Entity is a business trust validly
existing under the laws of the Commonwealth of
Massachusetts; (b) the Acquired Entity, with respect
to the Acquired Fund, has the power as a business
trust to carry on its business as presently conducted
in accordance with the description thereof in the
Acquired Entity's registration statement as an open-
end investment company registered under the 1940 Act;
(c) this Agreement has been duly authorized, executed
and, so far as known to such counsel, delivered by the
Acquired Entity, on behalf of the Acquired Fund, and
assuming due authorization, execution and delivery of
this Agreement by the Acquiring Entity, on behalf of
such Acquiring Fund, constitutes a valid and legally
binding obligation of the Acquired Entity, on behalf
of the Acquired Fund, enforceable against the Acquired
Entity in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and laws of
general applicability relating to or affecting
creditors' rights and to general equity principles
(whether in a proceeding under equity or at law);
provided that such counsel shall be entitled to state
that it expresses no opinion with respect to the
validity, binding effect or enforceability of any
contractual provisions purporting to provide
indemnification of any person for any claims, damages,
liabilities or expenses which may be limited by any
applicable federal or state securities laws or as a
matter of public policy; and (d) the execution and
delivery of this Agreement did not, and the transfer
of the Assets for Acquiring Fund Shares and the
assumption by the Acquiring Fund of the Liabilities
pursuant to this Agreement will not, violate the
Acquired Entity Charter or the by-laws of the Acquired
Entity. Such opinion may state that it is solely for
the benefit of the Acquiring Entity and the Acquiring
Entity Board. Such opinion may contain such
assumptions and limitations as shall be in the opinion
of Xxxxxxx XxXxxxxxx LLP appropriate to render the
opinions expressed therein.
8.6 The Acquired Entity, on behalf of the
Acquired Fund, shall have received on the applicable
Closing Date an opinion of Xxxxxxx XxXxxxxxx LLP, in a
form reasonably satisfactory to the Acquired Entity,
and dated as of the Closing Date, substantially to the
effect that, based upon certain facts and
certifications made by the Acquiring Entity, on behalf
of the Acquiring Fund and its authorized officers: (a)
the Acquiring Entity is a business trust validly
existing under the laws of the Commonwealth of
Massachusetts; (b) the Acquiring Entity, with respect
to the Acquiring Fund, has the power as a business
trust to carry on its business as presently conducted
in accordance with the description thereof in the
Acquiring Entity's registration statement as an open-
end investment company registered under the 1940 Act;
(c) this Agreement has been duly authorized, executed
and, so far as is known to such counsel, delivered by
the Acquiring Entity, on behalf of the Acquiring Fund,
and assuming due authorization, execution and delivery
of this Agreement by the Acquired Entity, on behalf of
such Acquired Fund, constitutes a valid and legally
binding obligation of the Acquiring Entity, on behalf
of the Acquiring Fund, enforceable against the
Acquiring Entity in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and laws of
general applicability relating to or affecting
creditors' rights and to general equity principles
(whether in a proceeding under equity or at law);
provided that such counsel shall be entitled to state
that it expresses no opinion with respect to the
validity, binding effect or enforceability of any
contractual provisions purporting to provide
indemnification of any person for any claims, damages,
liabilities or expenses which may be limited by any
applicable federal or state securities laws or as a
matter of public policy; and (d) the execution and
delivery of this Agreement did not, and the issuance
of the Acquiring Fund Shares and the assumption of the
Liabilities in exchange for the transfer of the Assets
pursuant to this Agreement will not, violate the
Acquiring Entity Charter or the by-laws of the
Acquiring Entity. Such opinion may state that it is
solely for the benefit of the Acquired Entity and the
Acquired Entity Board. Such opinion may contain such
assumptions and limitations as shall be in the opinion
of Xxxxxxx XxXxxxxxx LLP appropriate to render the
opinions expressed therein.
9. INDEMNIFICATION
9.1 The Acquiring Entity, out of the Acquiring
Fund's assets and property (including any amounts paid
to the Acquiring Fund pursuant to any applicable
liability insurance policies or indemnification
agreements) agrees to indemnify and hold harmless the
Acquired Entity and the members of the Acquired Entity
Board and its officers from and against any and all
losses, claims, damages, liabilities or expenses
(including, without limitation, the payment of
reasonable legal fees and reasonable costs of
investigation) to which the Acquired Entity and those
board members and officers may become subject, insofar
as such loss, claim, damage, liability or expense (or
actions with respect thereto) arises out of or is
based on (a) any breach by the Acquiring Entity, on
behalf of the Acquiring Fund, of any of its
representations, warranties, covenants or agreements
set forth in this Agreement or (b) any act, error,
omission, neglect, misstatement, materially misleading
statement, breach of duty or other act wrongfully done
or attempted to be committed by the Acquiring Entity
or the members of the Acquiring Entity Board or its
officers prior to the Closing Date, provided that such
indemnification by the Acquiring Entity is not (i) in
violation of any applicable law or (ii) otherwise
prohibited as a result of any applicable order or
decree issued by any governing regulatory authority or
court of competent jurisdiction.
9.2 The Acquired Entity, out of the Acquired
Fund's assets and property (including any amounts paid
to the Acquired Fund pursuant to any applicable
liability insurance policies or indemnification
agreements) agrees to indemnify and hold harmless the
Acquiring Entity and the members of the Acquiring
Entity Board and its officers from and against any and
all losses, claims, damages, liabilities or expenses
(including, without limitation, the payment of
reasonable legal fees and reasonable costs of
investigation) to which the Acquiring Entity and those
board members and officers may become subject, insofar
as such loss, claim, damage, liability or expense (or
actions with respect thereto) arises out of or is
based on (a) any breach by the Acquired Entity, on
behalf of the Acquired Fund, of any of its
representations, warranties, covenants or agreements
set forth in this Agreement or (b) any act, error,
omission, neglect, misstatement, materially misleading
statement, breach of duty or other act wrongfully done
or attempted to be committed by the Acquired Entity or
the members of the Acquired Entity Board or its
officers prior to the Closing Date, provided that such
indemnification by the Acquired Entity is not (i) in
violation of any applicable law or (ii) otherwise
prohibited as a result of any applicable order or
decree issued by any governing regulatory authority or
court of competent jurisdiction.
10. BROKER FEES AND EXPENSES
10.1 The Acquiring Entity, on behalf of the
Acquiring Fund, and the Acquired Entity, on behalf of
the Acquired Fund, represent and warrant to each other
that there are no brokers or finders entitled to
receive any payments in connection with the
transactions provided for herein.
10.2 Domini Social Investments, LLC will pay
all the costs of the Reorganization. Notwithstanding
any of the foregoing, expenses will in any event be
paid by the party directly incurring such expenses
(without reimbursement by another person) if and to
the extent that the payment by another person of such
expenses would prevent such party from being treated
as a "regulated investment company" under the Code or
would prevent the Reorganization from qualifying as a
tax-free reorganization.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1 The Acquiring Entity and the Acquired
Entity agree that neither party has made any
representation, warranty or covenant, on behalf of the
Acquiring Fund or the Acquired Fund, respectively, not
set forth herein and that this Agreement constitutes
the entire agreement between the parties.
11.2 The covenants to be performed after the
Closing by both the Acquiring Entity and the Acquired
Entity, and the obligations of the Acquiring Entity,
on behalf of the Acquiring Fund, in Article 9, shall
survive the Closing. All other representations,
warranties and covenants contained in this Agreement
or in any document delivered pursuant hereto or in
connection herewith shall not survive the consummation
of the transactions contemplated hereunder and shall
terminate on the Closing.
12. TERMINATION
This Agreement may be terminated and the
transactions contemplated hereby may be abandoned with
respect to any Acquiring Fund or Acquired Fund at any
time prior to the Closing Date with respect to the
applicable Reorganization by resolution of either the
Acquiring Entity Board or the Acquired Entity Board,
if circumstances should develop that, in the opinion
of that Board, make proceeding with the Agreement
inadvisable with respect to such Acquiring Fund or
such Acquired Fund, respectively. Any such
termination resolution to be effective shall be
promptly communicated to the other party and, in any
event, prior to the Closing Date. The termination of
this Agreement with respect to the Acquired Fund or
its Acquiring Fund shall not affect the continued
effectiveness of this Agreement with respect to any
other Acquired Fund or Acquiring Fund, nor shall it
affect the rights and obligations of any party in
respect of any breach of this Agreement occurring
prior to such termination.
13. AMENDMENTS
This Agreement may be amended, modified or
supplemented in such manner as may be deemed necessary
or advisable by the authorized officers of the
Acquired Entity and the Acquiring Entity; provided,
however, that following the meeting of the Acquired
Fund shareholders called by the Acquired Fund pursuant
to paragraph 5.2 of this Agreement, no such amendment
may have the effect of changing the provisions for
determining the number of Acquiring Fund Shares to be
issued to Acquired Fund shareholders under this
Agreement to the detriment of such shareholders
without their further approval.
14. NOTICES
Any notice, report, statement or demand required
or permitted by any provisions of this Agreement shall
be in writing and shall be given by facsimile,
electronic delivery (i.e., e-mail), personal service
or prepaid or certified mail addressed to the
Acquiring Entity or the Acquired Entity, at its
address set forth in the preamble to this Agreement,
in each case to the attention of its President.
15. HEADINGS; COUNTERPARTS; GOVERNING LAW;
SEVERABILITY; ASSIGNMENT; LIMITATION OF LIABILITY
15.1 The Article headings contained in this
Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of
this Agreement.
15.2 This Agreement may be executed in any
number of counterparts, each of which shall be deemed
an original.
15.3 This Agreement shall be governed by and
construed and interpreted in accordance with the
internal laws of the State of New York.
15.4 This Agreement shall bind and inure to the
benefit of the parties hereto and their respective
successors and assigns, but no assignment or transfer
hereof or of any rights or obligations hereunder shall
be made by any party without the written consent of
the other parties. Nothing herein expressed or
implied is intended or shall be construed to confer
upon or give any person, firm or corporation, other
than the parties hereto and their respective
successors and assigns, any rights or remedies under
or by reason of this Agreement.
15.5 The warranties, representations and
agreements contained in this Agreement made by the
Acquired Entity, on behalf of the Acquired Fund, are
made on a several (and not joint, or joint and
several) basis. Similarly, the warranties,
representations and agreements contained in this
Agreement made by the Acquiring Entity, on behalf of
the Acquiring Fund, are made on a several (and not
joint, or joint and several) basis.
15.6 Consistent with the Acquiring Entity
Charter, the obligations of the Acquiring Entity with
respect to the Acquiring Fund entered into in the name
or on behalf of the Acquiring Entity by any of its
Trustees, officers, employees or agents are made not
individually, but in such capacities, and are not
binding upon any of the Trustees, officers, employees,
agents or shareholders of the Acquiring Entity,
personally, but bind only the assets of the Acquiring
Entity belonging to the Acquiring Fund, and all
persons dealing with any series or funds of the
Acquiring Entity must look solely to the assets of the
Acquiring Entity belonging to such series or fund for
the enforcement of any claims against the Acquiring
Entity.
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IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed by its duly
authorized officer.
DOMINI SOCIAL INVESTMENT TRUST,
on behalf of DOMINI SOCIAL EQUITY FUND
By: /s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: President
DOMINI INSTITUTIONAL TRUST,
on behalf of DOMINI INSTITUTIONAL SOCIAL EQUITY FUND
By: /s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: President
Solely for purposes of paragraph 10.2 of the
Agreement:
DOMINI SOCIAL INVESTMENTS, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Operating Officer
SCHEDULE 4.1
None
SCHEDULE 4.2
None
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