AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") dated as of June 12,
2001 is made by Xxxxx New York Venture Fund, Inc. a Maryland Corporation
(the "Corporation") on behalf of its series, Xxxxx Growth & Income Fund,
and its series, Xxxxx New York Venture Fund.
W I T N E S S E T H:
WHEREAS, the Corporation is an open-end investment company of the
management type, and the two funds (the "Funds") are series of the
Corporation; and
WHEREAS, the parties hereto desire to provide for the reorganization pursuant
to Section 368(a)(1) of the Internal Revenue Code of 1986, as amended
(the "Code"), of Xxxxx Growth & Income Fund through the (1) acquisition by
Xxxxx New York Venture Fund of substantially all of the assets of Xxxxx
Growth & Income Fund in exchange for the voting shares of beneficial
interest ("shares") of Xxxxx New York Venture Fund, (2) the assumption
by Xxxxx New York Venture Fund of certain liabilities of Xxxxx Growth
& Income Fund, and (3) Class A, Class B, Class C and Class Y shares of
Xxxxx New York Venture Fund are to be distributed by Xxxxx Growth & Income
Fund pro rata to its respective shareholders of Class A, Class B, Class C
and Class Y shares, in complete liquidation of Xxxxx Growth & Income Fund
and complete cancellation of its shares;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. Reorganization. The Corporation, on behalf of itself and the Funds, hereby
adopts this Agreement and Plan of Reorganization (the "Agreement")
pursuant to Section 368(a)(1) of the Code as follows: The reorganization
will be comprised of the acquisition by Xxxxx New York Venture Fund of
substantially all of the assets of Xxxxx Growth & Income Fund in exchange
for shares of Xxxxx New York Venture Fund and the assumption by Xxxxx New
York Venture Fund of certain liabilities of Xxxxx Growth & Income Fund,
followed by the distribution of such Class A, Class B, Class C and Class Y
shares of Xxxxx New York Venture Fund to the respective Class A, Class B,
Class C and Class Y shareholders of Xxxxx Growth & Income Fund in exchange
for their Class A, Class B, Class C and Class Y shares of Xxxxx Growth &
Income Fund, all upon and subject to the terms of the Agreement hereinafter
set forth.
The share transfer books of Xxxxx Growth & Income Fund will be permanently
closed at the close of business on the Valuation Date (which shall be the
business day preceding the Closing Date, as later defined), and only
redemption requests received in proper form on or prior to the close of
business on the Valuation Date shall be honored by Xxxxx Growth & Income
Fund; redemption requests received by Xxxxx Growth & Income Fund after that
date shall be treated as requests for the redemption of the shares of
Xxxxx New York Venture Fund to be distributed to the shareholder in
question as provided in Section 6 hereof.
2. Shareholder Meeting and Proxy Statement/Prospectus. A meeting of the
shareholders of Xxxxx Growth & Income Fund shall be called for the purpose of
acting upon and authorizing the transactions contemplated in this Agreement.
Xxxxx New York Venture Fund agrees that it will prepare and file a
Registration Statement on Form N-14 under the 1933 Act which shall contain a
preliminary form of proxy statement and prospectus contemplated by Rule
145 under the 1933 Act (the "Proxy Statement and Prospectus"). Each Fund
agrees that it will use its best efforts to have such Registration
Statement declared effective and to supply such information concerning
itself for inclusion in the Proxy Statement and Prospectus as may be
necessary or desirable in this connection.
3. Transfer of Assets. On the Closing Date (as hereinafter defined), all
of the assets of Xxxxx Growth & Income Fund on that date, excluding a cash
reserve (the "Cash Reserve") to be retained for the benefit of Xxxxx Growth
& Income Fund, sufficient in its discretion for the payment of the expenses of
Xxxxx Growth & Income Fund's dissolution and its liabilities, but not in
excess of the amount contemplated by Section 11.E. hereof, shall be
delivered as provided in Section 9 to Xxxxx New York Venture Fund, in
exchange for and against delivery to Xxxxx Growth & Income Fund on the
Closing Date of a number of Class A, Class B, Class C and Class Y shares
of Xxxxx New York Venture Fund, having an aggregate net asset value equal to
the value of the assets of Xxxxx Growth & Income Fund so transferred and
delivered.
4. Calculation of Net Asset Value, Declaration of Dividends. (a) The net
asset value of Class A, Class B, Class C and Class Y shares of Xxxxx New
York Venture Fund and the value of the assets of Xxxxx Growth & Income
Fund to be transferred shall in each case be determined as of the close of
business of The New York Stock Exchange on the Valuation Date. The
computation of the net asset value of the Class A, Class B, Class C and
Class Y shares of Xxxxx New York Venture Fund and the Class A, Class B,
Class C and Class Y shares of Xxxxx Growth & Income Fund and the valuation of
the assets of Xxxxx Growth & Income Fund to be transferred to Xxxxx New York
Venture Fund, shall be done in the manner used by the Corporation as of the
Valuation Date, in accordance with established valuation procedures and
current prospectuses.
(b) Xxxxx Growth & Income Fund shall declare and pay, immediately prior to
the Valuation Date, a dividend or dividends which, together with all
previous such dividends, shall have the effect of distributing to Xxxxx
Growth & Income Fund's shareholders all of Xxxxx Growth & Income Fund's
investment company taxable income for taxable years ending on or prior to
the Closing Date (computed without regard to any dividends paid) and all
of its net capital gain, if any, realized in taxable years ending on or
prior to the Closing Date (after reduction for any capital loss carry-forward).
5. Closing. The closing (the "Closing") shall be at the offices of Xxxxx
Selected Advisers, L.P. (the "Agent"), 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxxxx 00000 at 9:00 A.M. Mountain Standard Time on September 14,
2001 or at such other time or place as the Corporation may designate or as
provided below (the "Closing Date"). In the event that on the Valuation
Date either Fund or the Corporation has, pursuant to the Investment Company
Act of 1940, as amended (the "Act"), or any rule, regulation or order
thereunder, suspended the redemption of its shares or postponed payment
therefore, the Closing Date shall be postponed until the first business
day after the date when any such suspension or postponement has ceased;
provided, however, that if such suspension shall continue for a period of
60 days beyond the Valuation Date, then the Corporation shall be permitted
to terminate this Agreement.
6. Distribution of Xxxxx New York Venture Fund Shares, Shareholder List.
(a) In conjunction with the Closing, Xxxxx Growth & Income Fund shall
distribute on a pro rata basis to the shareholders of Xxxxx Growth & Income
Fund as of the Valuation Date Class A, Class B, Class C and Class Y shares
of Xxxxx New York Venture Fund received by Xxxxx Growth & Income Fund on
the Closing Date in exchange for the assets of Xxxxx Growth & Income Fund in
complete liquidation of Xxxxx Growth & Income Fund. For the purpose of the
distribution by Xxxxx Growth & Income Fund of Class A, Class B, Class C and
Class Y shares of Xxxxx New York Venture Fund to Xxxxx Growth & Income Fund's
shareholders, Xxxxx New York Venture Fund will promptly cause its
transfer agent to: (a) credit an appropriate number of Class A, Class B,
Class C and Class Y shares of Xxxxx New York Venture Fund on the books of
Xxxxx New York Venture Fund to each Class A, Class B, Class C and Class Y
shareholder of Xxxxx Growth & Income Fund in accordance with a list
(the "Shareholder List") of Xxxxx Growth & Income Fund shareholders
received from Xxxxx Growth & Income Fund; and (b) confirm an appropriate
number of Class A, Class B, Class C and Class Y shares of Xxxxx New York
Venture Fund to each Class A, Class B, Class C and Class Y shareholder of
Xxxxx Growth & Income Fund.
(b) The Shareholder List shall indicate, as of the close of business on
the Valuation Date, the name and address of each shareholder of Xxxxx
Growth & Income Fund, indicating his or her share balance. Xxxxx Growth
& Income Fund agrees to supply the Shareholder List to Xxxxx New York
Venture Fund not later than the Closing Date.
7. Cash Reserve. Within one year after the Closing Date, the Corporation
shall (a) either pay or make provision for payment of all of the
liabilities and taxes of the Xxxxx Growth & Income Fund from the Cash
Reserve, and (b) either (i) transfer any remaining amount of the Cash
Reserve to Xxxxx New York Venture Fund, if such remaining amount (as reduced
by the estimated cost of distributing it to shareholders) is not material
(as defined below) or (ii) distribute such remaining amount pro rata to
the shareholders of Xxxxx Growth & Income Fund on the Valuation Date. Such
remaining amount shall be deemed to be material if the amount to be
distributed, after deduction of the estimated expenses of the distribution,
equals or exceeds one cent per share of Xxxxx Growth & Income Fund outstanding
on the Valuation Date.
8. Coordination of Investment Portfolios. Prior to the Closing Date, there
shall be coordination between the respective Funds as to their respective
portfolios so that, after the Closing, Xxxxx New York Venture Fund will be
in compliance with all of its investment policies and restrictions. At the
Closing, Xxxxx Growth & Income Fund shall deliver to Xxxxx New York Venture
Fund a list setting forth the securities then owned by Xxxxx Growth &
Income Fund, and setting forth the respective federal income tax basis
thereof.
9. Ownership of Portfolio Securities. Portfolio securities or written
evidence acceptable to Xxxxx New York Venture Fund of record ownership thereof
by The Depository Trust Company or through the Federal Reserve Book
Entry System or any other depository approved by Xxxxx Growth & Income
Fund shall be endorsed and delivered, or transferred by appropriate transfer
or assignment documents, by Xxxxx Growth & Income Fund on the Closing Date
to Xxxxx New York Venture Fund, or at its direction, to its custodian
bank, in proper form for transfer in such condition as to constitute
good delivery thereof in accordance with the custom of brokers and shall be
accompanied by all necessary state transfer stamps, if any. The cash delivered
shall be in the form of certified or bank cashiers' checks or by bank wire
or intra-bank transfer payable to the order of Xxxxx New York Venture Fund
for the account of Xxxxx New York Venture Fund. Class A, Class B, Class C
and Class Y shares of Xxxxx New York Venture Fund representing the number of
Class A, Class B, Class C and Class Y shares of Xxxxx New York Venture Fund
being delivered against the assets of Xxxxx Growth & Income Fund, registered
in the name of Xxxxx Growth & Income Fund, shall be transferred to Xxxxx
Growth & Income Fund on the Closing Date. Such shares shall thereupon be
assigned by Xxxxx Growth & Income Fund to its shareholders so that the shares
of Xxxxx New York Venture Fund may be distributed as provided in Section 6.
If, at the Closing Date, Xxxxx Growth & Income Fund is unable to make delivery
under this Section 9 to Xxxxx New York Venture Fund of any of its portfolio
securities or cash for the reason that any of such securities purchased
by Xxxxx Growth & Income Fund, or the cash proceeds of a sale of portfolio
securities, prior to the Closing Date have not yet been delivered to it or
Xxxxx Growth & Income Fund's custodian, then the delivery requirements of
this Section 9 with respect to said undelivered securities or cash will be
waived and Xxxxx Growth & Income Fund will deliver to Xxxxx New York Venture
Growth & Income Fund by or on the Closing Date with respect to said
undelivered securities or cash executed copies of an agreement or agreements
of assignment in a form reasonably satisfactory to Xxxxx New York
Venture Fund, together with such other documents, including a due xxxx or
due bills and brokers'confirmation slips as may reasonably be required by
Xxxxx New York Venture Fund.
10. Expenses. Xxxxx New York Venture Fund shall not assume the liabilities
of Xxxxx Growth & Income Fund, except for portfolio securities purchased
which have not settled and for shareholder redemption and dividend checks
outstanding. Xxxxx Growth & Income Fund will, nevertheless, use its best
efforts to discharge all known liabilities, so far as may be possible, prior
to the Closing Date. The cost of printing and mailing the proxies and proxy
statements will be borne by Xxxxx Growth & Income Fund. Any documents, such
as existing prospectuses or annual reports, that are included in that
mailing will be a cost of the Fund issuing the document. Any other
out-of-pocket expenses of Xxxxx New York Venture Fund and Xxxxx Growth
& Income Fund associated with this reorganization, including legal,
accounting and transfer agent expenses, will be borne by Xxxxx Growth &
Income Fund and Xxxxx New York Venture Fund, respectively, in the amounts so
incurred by each, or, if named collectively by both Funds, will be shared
equally.
11. Conditions of Xxxxx New York Venture Fund. The obligations of Xxxxx New
York Venture Fund hereunder shall be subject to the following conditions:
A. The Board of Directors of the Corporation shall have authorized the
execution of the Agreement, and the shareholders of Xxxxx Growth & Income
Fund shall have approved the Agreement and the transactions contemplated
hereby, and Xxxxx Growth & Income Fund shall have furnished to Xxxxx New
York Venture Fund copies of resolutions to that effect certified by the
Secretary or the Assistant Secretary of the Corporation; such shareholder
approval shall have been by the affirmative vote required by the
Maryland General Corporation Law and its charter documents at a meeting
for which proxies have been solicited.
X. Xxxxx Growth & Income Fund shall have received an opinion of counsel to the
Corporation, dated the Closing Date, to the effect that (i) Xxxxx Growth &
Income Fund is an authorized series of Xxxxx New York Venture Fund, Inc., a
corporation duly organized, validly existing and in good standing under the
laws of the State of Maryland with full corporate powers to carry on its
business as then being conducted and to enter into and perform the Agreement;
and (ii) that all corporate action necessary to make the Agreement, according
to its terms, valid, binding and enforceable on Xxxxx Growth & Income Fund
and to authorize effectively the transactions contemplated by the Agreement
have been taken by Xxxxx Growth & Income Fund.
C. The representations and warranties of Xxxxx Growth & Income Fund
contained herein shall be true and correct at and as of the Closing Date,
and Xxxxx New York Venture Fund shall have been furnished with a certificate
of the President or a Vice President of the Corporation, dated the Closing
Date, to that effect.
D. On the Closing Date, Xxxxx Growth & Income Fund shall have furnished to
Xxxxx New York Venture Fund a certificate of the Treasurer or Assistant
Treasurer of Xxxxx Growth & Income Fund as to the amount of the capital
loss carry-over and net unrealized appreciation or depreciation, if any, with
respect to Xxxxx Growth & Income Fund as of the Closing Date, and as to other
financial matters which may be reasonably requested on behalf of Xxxxx New
York Venture Fund.
E. The Cash Reserve shall not exceed 10% of the value of the net assets,
nor 30% in value of the gross assets, of Xxxxx Growth & Income Fund at the
close of business on the Valuation Date.
F. A Registration Statement on Form N-14 filed by the Corporation, on behalf
of Xxxxx New York Venture Fund, under the Securities Act of 1933, as amended
(the "1933 Act"), shall have become effective under the 1933 Act.
G. On the Closing Date, Xxxxx New York Venture Fund shall have received a
letter of an executive officer of Xxxxx Selected Advisers, L.P. acceptable
to Xxxxx New York Venture Fund, stating that nothing has come to his or her
attention which in his or her judgment would indicate that as of the Closing
Date there were any material, actual or contingent liabilities of
Xxxxx Growth & Income Fund arising out of litigation brought against Xxxxx
Growth & Income Fund or claims asserted against it, or pending or to the best
of his or her knowledge threatened claims or litigation not reflected in or
apparent from the most recent audited financial statements and footnotes
thereto of Xxxxx Growth & Income Fund delivered to Xxxxx New York Venture
Fund. Such letter may also include such additional statements relating to
the scope of the review conducted by such person and his or her
responsibilitiesand liabilities as are not unreasonable under the
circumstances.
X. Xxxxx New York Venture Fund shall have received an opinion, dated the
Closing Date, to the same effect as contemplated by Section 12.E. of this
Agreement.
X. Xxxxx New York Venture Fund shall have received at the Closing all of the
assets of Xxxxx Growth & Income Fund to be conveyed hereunder, which assets
shall be free and clear of all liens, encumbrances, security interests,
restrictions and limitations whatsoever.
12. Conditions of Xxxxx Growth & Income Fund. The obligations of Xxxxx Growth
& Income Fund hereunder shall be subject to the following conditions:
A. The Board of Directors of the Corporation shall have authorized the
execution of the Agreement, and the transactions contemplated thereby,
and Xxxxx New York Venture Fund shall have furnished to Xxxxx Growth & Income
Fund copies of resolutions to that effect certified by the Secretary or the
Assistant Secretary of the Corporation.
X. Xxxxx Growth & Income Fund's shareholders shall have approved the
Agreement and the transactions contemplated hereby, by an affirmative
vote required by the Maryland General Corporation Law and its charter
documents, and Xxxxx Growth & Income Fund shall have furnished Xxxxx New York
Venture Fund copies of resolutions to that effect certified by the Secretary
or an Assistant Secretary of the Corporation.
X. Xxxxx Growth & Income Fund shall have received an opinion of counsel to
the Corporation, dated the Closing Date, to the effect that (i) Xxxxx New
York Venture Fund is an authorized series of Xxxxx New York Venture Fund,
Inc., a corporation organized, validly existing and in good standing
under the laws of the State of Maryland with full powers to carry on its
business as then being conducted and to enter into and perform the
Agreement; (ii) all corporate action necessary to make the Agreement,
according to its terms, valid, binding and enforceable upon Xxxxx New York
Venture Fund and to authorize effectively the transactions contemplated by
the Agreement have been taken by Xxxxx New York Venture Fund, and (iii) the
shares of Xxxxx New York Venture Fund to be issued hereunder are duly
authorized and when issued will be validly issued, fully-paid and
non-assessable.
D. The representations and warranties of Xxxxx New York Venture Fund
contained herein shall be true and correct at and as of the Closing Date,
and Xxxxx Growth & Income Fund shall have been furnished with a certificate
of the President or a Vice President of the Corporation to that effect dated
the Closing Date.
X. Xxxxx Growth & Income Fund shall have received an opinion of a nationally
recognized accounting firm, the Corporation's legal counsel, or other legal
counsel reasonably acceptable to the Corporation's officers, to the effect
that the federal tax consequences of the transaction, if carried out in the
manner outlined in the Agreement and in accordance with (i) Xxxxx Growth
& Income Fund's representation that to Xxxxx Growth & Income Fund's best
knowledge, there is no plan or intention by any Xxxxx Growth & Income Fund
shareholder to redeem, sell, exchange or otherwise dispose of a number of
Xxxxx New York Venture Fund shares received in the transaction that would
reduce Xxxxx Growth & Income Fund shareholders' ownership of Xxxxx New York
Venture Fund shares to a number of shares having a value, as of the Closing
Date, of less than 50% of the value of all of the formerly outstanding
Xxxxx Growth & Income Fund shares as of the same date, and (ii) the
representation by each of Xxxxx Growth & Income Fund and Xxxxx New York
Venture Fund that, as of the Closing Date, Xxxxx Growth & Income Fund and
Xxxxx New York Venture Fund will qualify as regulated investment companies
or will meet the diversification test of Section 368(a)(2)(F)(ii) of the
Code, will be substantially as follows:
i. The transactions contemplated by the Agreement will qualify as a tax-free
"reorganization" within the meaning of Section 368(a)(1) of the Code, and
under the regulations promulgated thereunder.
ii. Xxxxx Growth & Income Fund and Xxxxx New York Venture Fund will each
qualify as a "party to a reorganization" within the meaning of Section
368(b)(2) of the Code.
iii. No gain or loss will be recognized by the shareholders of Xxxxx
Growth & Income Fund upon the distribution of Class A, Class B, Class C and
Class Y shares of beneficial interest in Xxxxx New York Venture Fund to the
shareholders of Xxxxx Growth & Income Fund pursuant to Section 354 of the
Code.
iv. Under Section 361(a) of the Code, no gain or loss will be recognized
by Xxxxx Growth & Income Fund by reason of the transfer of substantially all
its assets in exchange for Class A, Class B, Class C and Class Y shares
of Xxxxx New York Venture Fund.
v. Under Section 1032 of the Code, no gain or loss will be recognized by
Xxxxx New York Venture Fund by reason of the transfer of substantially all
of Xxxxx Growth & Income Fund's assets in exchange for Class A, Class B, Class
C and Class Y shares of Xxxxx New York Venture Fund and Xxxxx New York
Venture Fund's assumption of certain liabilities of Xxxxx Growth &
Income Fund.
vi. The shareholders of Xxxxx Growth & Income Fund will have the same tax basis
and holding period for the Class A, Class B, Class C and Class Y shares of
beneficial interest in Xxxxx New York Venture Fund that they receive as they
had for Xxxxx Growth & Income Fund shares that they previously held, pursuant
to Section 358(a) and 1223(1), respectively, of the Code.
vii. The securities transferred by Xxxxx Growth & Income Fund to Xxxxx New
York Venture Fund will have the same tax basis and holding period in the hands
of Xxxxx New York Venture Fund as they had for Xxxxx Growth & Income Fund,
pursuant to Section 362(b) and 1223(1), respectively, of the Code.
F. The Cash Reserve shall not exceed 10% of the value of the net assets,
nor 30% in value of the gross assets, of Xxxxx Growth & Income Fund at the
close of business on the Valuation Date.
G. A Registration Statement on Form N-14 filed by the Corporation, on behalf
of Xxxxx New York Venture Fund, under the 1933 Act, containing a preliminary
form of the Proxy Statement and Prospectus, shall have become effective
under the 1933 Act.
H. On the Closing Date, Xxxxx Growth & Income Fund shall have received a letter
of an executive officer of Xxxxx Selected Advisers, L.P. acceptable to
Xxxxx Growth & Income Fund, stating that nothing has come to his or her
attention which in his or her judgment would indicate that as of the Closing
Date there were any material, actual or contingent liabilities of Xxxxx
New York Venture Fund arising out of litigation brought against Xxxxx New
York Venture Fund or claims asserted against it, or pending or, to the best
of his or her knowledge, threatened claims or litigation not reflected in
or apparent by the most recent audited financial statements and footnotes
thereto of Xxxxx New York Venture Fund delivered to Xxxxx Growth & Income
Fund. Such letter may also include such additional statements
relating to the scope of the review conducted by such person and his or
her responsibilities and liabilities as are not unreasonable under the
circumstances.
X. Xxxxx Growth & Income Fund shall acknowledge receipt of the Class A,
Class B, Class C and Class Y shares of Xxxxx New York Venture Fund.
13. Representations of Xxxxx Growth & Income Fund. Xxxxx Growth & Income
Fund hereby represents and warrants that:
A. The financial statements of Xxxxx Growth & Income Fund as of July 31, 2001
(audited), will present fairly the financial position, results of operations,
and changes in net assets of Xxxxx Growth & Income Fund as of that date, in
conformity with generally accepted accounting principles applied on a basis
consistent with the preceding year; and that from July 31, 2001, through
the Closing Date there will not be any material adverse change in the
business or financial condition of Xxxxx Growth & Income Fund, it being
agreed that a decrease in the size of Xxxxx Growth & Income Fund due to a
diminution in the value of its portfolio and/or redemption of its shares
shall not be considered a material adverse change;
B. Contingent upon approval of the Agreement and the transactions
contemplated thereby by Xxxxx Growth & Income Fund's shareholders, Xxxxx
Growth & Income Fund has authority to transfer all of the assets of Xxxxx
Growth & Income Fund to be conveyed hereunder free and clear of all
liens, encumbrances, security interests, restrictions and limitations
whatsoever;
C. The Xxxxx Growth & Income Fund Prospectus, as amended and supplemented,
contained in the Corporation's Registration Statement under the 1933 Act,
as amended, is true, correct and complete, conforms to the requirements of
the 1933 Act and does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
D. There is no material contingent liability of Xxxxx Growth & Income Fund
and no material claim and no material legal, administrative or other
proceedings pending or, to the knowledge of Xxxxx Growth & Income Fund,
threatened against Xxxxx Growth & Income Fund, not reflected in such
Prospectus;
E. Except for the Agreement, there are no material contracts
outstanding to which the Corporation, on behalf of Xxxxx Growth & Income
Fund, is a party other than those ordinary in the conduct of its business;
X. Xxxxx Growth & Income Fund is an authorized series of the Corporation, a
Maryland corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland; and has all necessary and material
federal and state authorizations to own all of its assets and to carry
on its business as now being conducted;
G. All federal and other tax returns and reports required by law to be
filed on behalf of Xxxxx Growth & Income Fund have been filed, and all
federal and other taxes shown due on said returns and reports have been paid
or provision shall have been made for the payment thereof, and to the best of
the knowledge of Xxxxx Growth & Income Fund no such return is currently under
audit and no assessment has been asserted with respect to such returns
and to the extent such tax returns with respect to the taxable year of Xxxxx
Growth & Income Fund ended July 31, 2001, have not been filed, such returns
will be filed when required and the amount of tax shown as due thereon
shall be paid when due; and
H. The Corporation has elected to be treated as a regulated investment company
and, for each fiscal year of its operations, Xxxxx Growth & Income Fund has
met the requirements of Subchapter M of the Code for qualification and
treatment as a series of a regulated investment company and Xxxxx Growth &
Income Fund intends to meet such requirements with respect to its current
taxable year.
14. Representations of Xxxxx New York Venture Fund. Xxxxx New York Venture
Fund hereby represents and warrants that:
A. The financial statements of Xxxxx New York Venture Fund as of July 31, 2001
(audited), will present fairly the financial position, results of operations,
and changes in net assets of Xxxxx New York Venture Fund, as of that date, in
conformity with generally accepted accounting principles applied on a basis
consistent with the preceding year; and that from July 31, 2001, through the
Closing Date there will not be, any material adverse changes in the business
or financial condition of Xxxxx New York Venture Fund, it being understood
that a decrease in the size of Xxxxx New York Venture Fund due to a diminution
in the value of its portfolio and/or redemption of its shares shall not be
considered a material or adverse change;
B. The Xxxxx New York Venture Prospectuses, as amended and supplemented,
contained the Corporation's Registration Statement under the 1933 Act,
is true, correct and complete, conforms to the requirements of the 1933
Act and does not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
C. There is no material contingent liability of Xxxxx New York Venture Fund
and no material claim and no material legal, administrative or other proceedings
pending or, to the knowledge of Xxxxx New York Venture Fund, threatened
against Xxxxx New York Venture Fund, not reflected in such Prospectus;
D. Except for this Agreement, there are no material contracts
outstanding to which the Corporation, on behalf of Xxxxx New York Venture
Fund, is a party other than those ordinary in the conduct of its business;
X. Xxxxx New York Venture Fund is an authorized series of the Corporation,
a corporation duly organized, validly existing and in good standing under
the laws of the State of Maryland; Xxxxx New York Venture Fund has all
necessary and material federal and state authorizations to own all its
properties and assets and to carry on its business as now being conducted;
and the Class A, Class B, Class C and Class Y shares of Xxxxx New York Venture
Fund which it issues to Xxxxx Growth & Income Fund pursuant to the Agreement
will be duly authorized, validly issued, fully-paid and non-assessable, will
conform to the description thereof contained in the Corporation's Registration
Statement and will be duly registered under the 1933 Act and in the states
where registration is required;
F. All federal and other tax returns and reports required by law to be
filed on behalf of Xxxxx New York Venture Fund have been filed, and all
federal and other taxes shown due on said returns and reports have been paid
or provision shall have been made for the payment thereof and to the best
of the knowledge of Xxxxx New York Venture Fund no such return is currently
under audit and no assessment has been asserted with respect to such returns
and to the extent such tax returns with respect to the taxable year of
Xxxxx New York Venture Fund ended July 31, 2001, have not been filed, such
returns will be filed when required and the amount of tax shown as due
thereon shall be paid when due;
G. The Corporation has elected to be treated as a regulated investment company
and, for each fiscal year of its operations, Xxxxx New York Venture Fund has
met the requirements of Subchapter M of the Code for qualification and
treatment as a series of a regulated investment company and Xxxxx New York
Venture Fund intends to meet such requirements with respect to its current
taxable year;
X. Xxxxx New York Venture Fund has no plan or intention (i) to dispose of any
of the assets transferred by Xxxxx Growth & Income Fund, other than in the
ordinary course of business, or (ii) to redeem or reacquire any of the
Class A, Class B, Class C and Class Y shares issued by it in the
reorganization other than pursuant to valid requests of shareholders;
and
I. After consummation of the transactions contemplated by the
Agreement, Xxxxx New York Venture Fund intends to operate its business in a
substantially unchanged manner.
15. Mutual Representations. Each Fund hereby represents to the other that no
broker or finder has been employed by it with respect to the Agreement
or the transactions contemplated hereby. Each Fund also represents and
warrants to the other that the information concerning it in the Proxy Statement
and Prospectus will not as of its date contain any untrue statement of a
material fact or omit to state a fact necessary to make the statements
concerning it therein not misleading and that the financial statements
concerning it will present the information shown fairly in accordance with
generally accepted accounting principles applied on a basis consistent with
the preceding year. Each Fund also represents and warrants to the other
that the Agreement is valid, binding and enforceable in accordance with
its terms and that the execution, delivery and performance of the Agreement
will not result in any violation of, or be in conflict with, any provision
of any charter, by-laws, contract, agreement, judgment, decree or order
to which it is subject or to which it is a party.
16. Nonsurvival of Warranties; Termination of Series. The representations and
warranties in or pursuant to this Agreement shall not survive the
Reorganization. As promptly as is reasonably practicable after the liquidation
of Xxxxx Growth & Income Fund, the authority to issue shares of Xxxxx Growth
& Income Fund, and its classes, shall be terminated by an amendment to the
Corporation's Articles of Incorporation.
17. Termination. The Corporation, on its behalf or on behalf of either Fund,
may abandon and terminate the Agreement for any reason and there shall be no
liability for damages or other recourse available to a Fund not so
terminating this Agreement, provided, however, that in the event that a Fund
shall cause this Agreement to be terminated without reasonable cause, the
Fund so terminating shall, upon demand, reimburse the other Fund for all
expenses, including reasonable out-of-pocket expenses and fees incurred
in connection with this Agreement.
18. Counterparts. The Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all taken together shall
constitute one Agreement. The rights and obligations of each party pursuant
to the Agreement shall not be assignable.
19. Entire Agreement, Amendments. All prior or contemporaneous agreements
and representations are merged into the Agreement, which constitutes the
entire contract. No amendment or modification hereof shall be of any force
and effect unless in writing and signed by the Corporation on behalf of both
Funds.
20. Directors, Officers and Shareholders Not Liable. (a) Xxxxx New York
Venture Fund agrees that the obligations of Xxxxx Growth & Income Fund
under the Agreement are not binding upon any director, officer or
shareholder of the Corporation personally, but bind only Xxxxx Growth &
Income Fund's property.
(b) Xxxxx Growth & Income Fund agrees that the obligations of Xxxxx New York
Venture Fund under the Agreement are not binding upon any director, officer
or shareholder of the Corporation personally, but bind only Xxxxx New York
Venture Fund's property.
(c) Nothing in this Agreement, expressed or implied, is intended to confer upon
any other person or entity any rights or remedies by reason of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused the Agreement to be executed
and attested by its officers thereunto duly authorized on the date first
set forth above.
XXXXX NEW YORK VENTURE FUND, INC.
on behalf of its series
XXXXX GROWTH & INCOME FUND
____________________________
By: Xxxxxx Xxxx
Vice President and Treasurer
XXXXX NEW YORK VENTURE FUNDS, INC.
on behalf of its series
XXXXX NEW YORK VENTURE FUND
__________________________
By: Xxxxxx Xxxx
Vice President and Secretary
