AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made
as of this 8th day of August, 2016 by Destra Investment Trust, a
Massachusetts business trust (the "Acquiring Trust"), on behalf
of Destra Focused Equity Fund (the "Acquiring Fund"), a series
of the Acquiring Trust, and Destra Investment Trust II, a
Massachusetts business trust ("Trust II"), on behalf of Destra
Focused Equity Fund (the "Target Fund"), a series of Trust II,
and Destra Capital Advisors LLC, a Delaware limited liability
company (for purposes of Section 9.1 of the Agreement only), the
investment adviser to each of the Acquiring Fund and the Target
Fund (the "Adviser"). The Acquiring Fund and the Target Fund
may each be referred to herein as a "Fund" and may collectively
be referred to herein as the "Funds."
WHEREAS, this Agreement is intended to be, and is adopted as,
a plan of reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), and
the Treasury Regulations promulgated thereunder;
WHEREAS, the reorganization will consist of: (i) the
transfer of all the assets of the Target Fund to the Acquiring
Fund in exchange solely for Class A, Class C and Class I shares
of beneficial interest of the Acquiring Fund ("Acquiring Fund
Shares") and the assumption by the Acquiring Fund of all the
liabilities of the Target Fund; and (ii) the pro rata
distribution of all the Acquiring Fund Shares to the
shareholders of each corresponding class of the Target Fund, in
complete liquidation and termination of the Target Fund as
provided herein, all upon the terms and conditions set forth in
this Agreement (the "Reorganization");
WHEREAS, the Acquiring Fund has been organized in order to
continue the business and operations of the Target Fund;
WHEREAS, the Acquiring Fund currently has no assets and has
carried on no business activities prior to the date first
written above and will have no assets and will have carried on
no business activities prior to the consummation of the
transaction described herein except as necessary to consummate
the Reorganization;
WHEREAS, the Target Fund is a separate series of Trust II and
the Acquiring Fund is a separate series of the Acquiring Trust,
and Trust II and the Acquiring Trust are each an open-end,
management investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Target Fund owns securities that generally are
assets of the character in which the Acquiring Fund is permitted
to invest;
WHEREAS, the Acquiring Fund is authorized to issue the
Acquiring Fund Shares; and
WHEREAS, the Board of Trustees of the Acquiring Trust (the
"Acquiring Fund Board") and the Board of Trustees of Trust II
(the "Target Fund Board") have made the determinations required
by Rule 17a-8 under the 1940 Act with respect to the Target Fund
and Acquiring Fund, respectively.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements hereinafter set forth, the parties
hereto covenant and agree as follows:
ARTICLE I
TRANSFER OF ASSETS OF THE TARGET FUND IN EXCHANGE FOR ACQUIRING FUND
SHARES AND
THE ASSUMPTION OF THE TARGET FUND LIABILITIES AND TERMINATION AND
LIQUIDATION OF
THE TARGET FUND
Section 1.1.The Exchange. Subject to the terms and conditions
contained herein and on the basis of the representations and
warranties contained herein, the Target Fund agrees to transfer
all of its assets, as set forth in Section 1.2, to the Acquiring
Fund. In consideration therefor, the Acquiring Fund agrees:
(i) to deliver to the Target Fund the number of full and
fractional Class A, Class C and Class I Acquiring Fund Shares,
computed in the manner set forth in Section 2.2; and (ii) to
assume all the liabilities of the Target Fund, as set forth in
Section 1.3. All Acquiring Fund Shares delivered to the Target
Fund shall be delivered at net asset value without a sales load,
commission or other similar fee being imposed. Such
transactions shall take place at the closing provided for in
Section 3.1 (the "Closing").
Section 1.2.Assets to be Transferred. The Target Fund shall
transfer all of its assets to the Acquiring Fund, including,
without limitation, all cash, securities, commodities, interests
in futures, dividends or interest receivables owned by the
Target Fund and any deferred or prepaid expenses shown as an
asset on the books of the Target Fund on the Closing Date as
such term is defined in Section 3.1. The Target Fund will,
within a reasonable period of time before the Closing Date,
furnish, if requested, the Acquiring Fund with a list of the
Target Fund's portfolio securities and other investments. After
the Target Fund provides such list, the Target Fund will notify
the Acquiring Fund of its purchase or incurrence of additional
investments or of any additional encumbrances, rights,
restrictions or claims not reflected on such list, within a
reasonable time period after such purchase or incurrence.
Section 1.3.Liabilities to be Assumed. Any liabilities not
discharged before the Closing Date shall be assumed by the
Acquiring Fund, which assumed liabilities shall include all of
the Target Fund's liabilities, debts, obligations, and duties of
whatever kind or nature, whether absolute, accrued, contingent,
or otherwise, whether or not arising in the ordinary course of
business, whether or not determinable at the Closing Date, and
whether or not specifically referred to in this Agreement.
Section 1.4.Liquidating Distribution. As of the Effective
Time (as defined in Section 3.1), the Target Fund will make a
liquidating distribution of the Acquiring Fund Shares received
pursuant to Section 1.1 to its shareholders of record with
respect to each corresponding class of shares, determined as of
the close of business on the Closing Date, as such term is
defined in Section 3.1 (each a "Target Fund Shareholder" and
collectively, the "Target Fund Shareholders"), on a pro rata
basis within that class. Such distribution will be accomplished
with respect to each class of shares of the Target Fund by the
transfer of the Acquiring Fund Shares of the corresponding class
then credited to the account of the Target Fund on the books of
the Acquiring Fund to open accounts on the share records of the
Acquiring Fund in the names of Target Fund Shareholders of such
class. The Acquiring Fund shall not issue certificates
representing Acquiring Fund Shares in connection with such
transfer. As of the Effective Time, all issued and outstanding
shares of the Target Fund shall be cancelled on the books of the
Target Fund and retired.
Section 1.5.Ownership of Shares. Ownership of Acquiring Fund
Shares will be shown on the books of the Acquiring Fund's
transfer agent. Acquiring Fund Shares will be issued to the
Target Fund, in an amount computed in the manner set forth in
Section 2.2.
Section 1.6.Transfer Taxes. Any transfer taxes payable upon
the issuance of Acquiring Fund Shares due a Target Fund
Shareholder pursuant to Section 1.4 that result from such
issuance being made to an account in a name other than the
registered holder of such Target Fund shares on the books of the
Target Fund as of the Effective Time shall, as a condition of
such issuance and transfer, be paid by the person to whom such
Acquiring Fund Shares are to be issued and transferred.
Section 1.7.Liquidation and Termination. The Target Fund
shall completely liquidate and be dissolved, terminated and have
its affairs wound up in accordance with Massachusetts state law,
promptly following the Closing Date and the making of all
distributions pursuant to Section 1.4.
Section 1.8.Board Reporting. Any reporting responsibility of
the Target Fund including, without limitation, the
responsibility for filing of regulatory reports, tax returns or
other documents with the Securities and Exchange Commission (the
"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 Target
Fund.
Section 1.9.Books and Records. All books and records of the
Target Fund, including all books and records required to be
maintained under the 1940 Act, and the rules and regulations
thereunder, shall be available to the Acquiring Fund from and
after the Closing Date and shall be turned over to the Acquiring
Fund as soon as practicable following the Closing Date.
ARTICLE II
VALUATION
Section 2.1.Valuation of Assets. The value of the Target
Fund's assets and liabilities shall be computed as of the close
of regular trading on the New York Stock Exchange ("NYSE") on
the Closing Date (such time and date being hereinafter called
the "Valuation Time"), using the valuation procedures set forth
in the Acquiring Fund's then-current prospectus or statement of
additional information (in effect as of the Closing Date) or
such other valuation procedures as shall be mutually agreed upon
by the parties.
Section 2.2.Shares to be Issued. At the Effective Time, the
Acquiring Fund shall issue and deliver to the Target Fund a
number of full and fractional Class A, Class C and Class I
shares of beneficial interest of the Acquiring Fund equal to the
number of full and fractional Class A, Class C and Class I
shares of beneficial interest of the Target Fund. The Acquiring
Fund shall issue Class A, Class C and Class I shares of
beneficial interest of the Acquiring Fund with an aggregate net
asset value equal to the value of the Target Fund's assets net
of the Target Fund's liabilities at the Effective Time.
Section 2.3.Effect of Suspension in Trading. In the event
that on the Closing Date, either: (a) the NYSE or another
primary exchange on which the portfolio securities of the
Acquiring Fund or the Target Fund are purchased or sold shall be
closed to trading or trading on such exchange shall be
restricted; or (b) trading or the reporting of trading on the
NYSE or elsewhere shall be disrupted so that accurate appraisal
of the value of the net assets of the Target Fund is
impracticable, the Closing Date shall be postponed until the
first business day when trading is fully resumed and reporting
is restored.
ARTICLE III
CLOSING AND CLOSING DATE
Section 3.1.Closing Date. The Closing shall occur on
September 30, 2016 or such other date as the parties may agree
(the "Closing Date"). Unless otherwise provided, all acts
taking place at the Closing shall be deemed to take place as of
immediately after the Valuation Time on the Closing Date (the
"Effective Time"). The Closing shall be held as of the close of
business at the offices of Xxxxxxx and Xxxxxx LLP in Chicago,
Illinois or at such other time and/or place as the parties may
agree.
Section 3.2.Custodian's Certificate. The Target Fund shall
cause its custodian to deliver to the Acquiring Fund at the
Closing a certificate of an authorized officer stating that:
(a) the Target Fund's portfolio securities, cash, and any other
assets shall have been delivered in proper form to the Acquiring
Fund's custodian on behalf of the Acquiring Fund on the Closing
Date; and (b) all necessary taxes, including all applicable
federal and state stock transfer stamps, if any, shall have been
paid, or provision for payment shall have been made, in
conjunction with the delivery of portfolio securities by the
Target Fund.
Section 3.3.Transfer Agent's Certificate. The Target Fund
shall cause its transfer agent to deliver to the Acquiring Fund
at the Closing a certificate of an authorized officer stating
that such transfer agent's records contain the names and
addresses of all the Class A, Class C and Class I Target Fund
Shareholders, and the number and percentage ownership of
outstanding shares per class owned by each such shareholder
immediately prior to the Closing. The Acquiring Fund shall
issue and deliver or cause its transfer agent to issue and
deliver to the Target Fund a confirmation evidencing the Class
A, Class C and Class I Acquiring Fund Shares to be credited at
the Closing to the Secretary of Trust II or provide evidence
satisfactory to the Target Fund that such Acquiring Fund Shares
have been credited to the Target Fund's account on the books of
the Acquiring Fund.
Section 0.0.Xxxxxxxx of Additional Items. At the Closing,
each party shall deliver to the other such bills of sale,
checks, assignments, share certificates, receipts and other
documents, if any, as such other party or its counsel may
reasonably request to effect the transactions contemplated by
this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1.Representations of the Target Fund. Trust II, on
behalf of the Target Fund, represents and warrants as follows:
(a)Trust II is a business trust duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts.
(b)The Target Fund is a separate series of Trust II
duly authorized in accordance with the applicable
provisions of Trust II's Declaration of Trust.
(c)Trust II is registered as an open-end management
investment company under the 1940 Act, and such
registration is in full force and effect.
(d)The Target Fund is not, and the execution,
delivery, and performance of this Agreement will not result
in, the violation of any provision of Trust II's
Declaration of Trust or By-Laws or of any material
agreement, indenture, instrument, contract, lease, or other
undertaking to which the Target Fund is a party or by which
it is bound.
(e)Except as otherwise disclosed in writing to and
accepted by the Acquiring Fund, the Target Fund has no
material contracts or other commitments that will be
terminated with liability to the Target Fund before the
Closing Date.
(f)No litigation, administrative proceeding, or
investigation of or before any court or governmental body
is presently pending or to its knowledge threatened against
the Target Fund or any of its properties or assets, which,
if adversely determined, would materially and adversely
affect the Target Fund's financial condition, the conduct
of its business, or the ability of the Target Fund to carry
out the transactions contemplated by this Agreement. The
Target Fund knows of no facts that might form the basis for
the institution of such proceedings and is not a party to
or subject to the provisions of any order, decree, or
judgment of any court or governmental body that materially
and adversely affects its business or its ability to
consummate the transactions contemplated herein.
(g)The financial statements of the Target Fund for
its most recently completed fiscal year have been prepared
in accordance with generally accepted accounting principles
and have been audited by an independent registered public
accounting firm, and such statements (copies of which have
been furnished to the Acquiring Fund) fairly reflect the
financial condition of the Target Fund as of the date
indicated, and there are no known liabilities, contingent
or otherwise, of the Target Fund as of such date that are
not disclosed in such statements.
(h)The financial statements of the Target Fund for
the six-month period completed since the end of the most
recently completed fiscal year, to the extent available,
have been prepared in accordance with generally accepted
accounting principles, and such statements (copies of which
have been furnished to the Acquiring Fund) fairly reflect
the financial condition of the Target Fund as of the date
indicated, and there are no known liabilities, contingent
or otherwise, of the Target Fund as of such date that are
not disclosed in such statements.
(i)Since the date of the financial statements
referred to in subsection (h) above, there have been no
material adverse changes in the Target Fund's financial
condition, assets, liabilities or business (other than
changes occurring in the ordinary course of business) and
there are no known contingent liabilities of the Target
Fund arising after such date. For the purposes of this
subsection (i), a decline in the net asset value of the
Target Fund shall not constitute a material adverse change.
(j)All federal, state, local and other tax returns
and reports of the Target Fund required by law to be filed
by it (taking into account permitted extensions for filing)
have been timely filed and are complete and correct in all
material respects. All federal, state, local and other
taxes of the Target Fund required to be paid (whether or
not shown on any such return or report) have been paid, or
provision shall have been made for the payment thereof and
any such unpaid taxes are properly reflected on the
financial statements referred to in subsection (h) above.
To the Target Fund's knowledge, no tax authority is
currently auditing or preparing to audit the Target Fund,
and no assessment for taxes, interest, additions to tax or
penalties has been asserted against the Target Fund.
(k)All issued and outstanding shares of the Target
Fund are, and as of the Closing Date will be, duly and
validly issued and outstanding, fully paid and non-
assessable by the Target Fund (recognizing that under
Massachusetts law, Target Fund Shareholders, under certain
circumstances, could be held personally liable for the
obligations of the Target Fund). All the issued and
outstanding shares of the Target Fund will, at the time of
the Closing, be held by the persons and in the amounts set
forth in the records of the Target Fund's transfer agent as
provided in Section 3.3. The Target Fund has no
outstanding options, warrants or other rights to subscribe
for or purchase any shares of the Target Fund, and has no
outstanding securities convertible into shares of the
Target Fund.
(l)At the Closing, the Target Fund will have good
and marketable title to the Target Fund's assets to be
transferred to the Acquiring Fund pursuant to Section 1.2,
and full right, power, and authority to sell, assign,
transfer, and deliver such assets free and clear of any
liens, encumbrances and restrictions on transfer, except
those liens, encumbrances and restrictions for which the
Acquiring Fund has received written notice of prior to the
Closing and not objected to, and the Acquiring Fund will
acquire good and marketable title thereto, subject to no
other restrictions on the full transfer thereof, including
such restrictions as might arise under the Securities Act
of 1933, as amended (the "1933 Act").
(m)The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action
on the part of the Target Fund including the determinations
of the Target Fund Board required by Rule 17a-8(a) of the
1940 Act. This Agreement constitutes a valid and binding
obligation of the Target 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.
(n)The information to be furnished by the Target
Fund for use in connection with the transactions
contemplated herein shall be accurate and complete in all
material respects and shall comply in all material respects
with federal securities and other laws and regulations.
(o)All materials provided by the Target Fund to the
Acquiring Fund in connection with the Reorganization do not
and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
or necessary to make the statements, in light of the
circumstances under which such statements were made, not
misleading.
(p)For each taxable year of its operations
(including the taxable year ending on the Closing Date),
the Target Fund has been treated as a separate corporation
for federal income tax purposes pursuant to Section 851(g)
of the Code, has met the requirements of Subchapter M of
the Code for qualification as a regulated investment
company and has elected to be treated as such, has been
eligible to compute and has computed its federal income tax
under Section 852 of the Code.
Section 4.2.Representations of the Acquiring Fund. The
Acquiring Trust, on behalf of the Acquiring Fund, represents and
warrants as follows:
(a)The Acquiring Trust is a business trust duly
organized, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts.
(b)The Acquiring Fund is a separate series of the
Acquiring Trust duly authorized in accordance with the
applicable provisions of the Acquiring Trust's Declaration
of Trust.
(c)The Acquiring Trust is registered as an open-end
management investment company under the 1940 Act, and such
registration is in full force and effect.
(d)The Acquiring Fund shall have no assets as of the
Closing Date, and there shall be no issued and outstanding
shares of the Acquiring Fund prior to or at the Closing
Date, other than those acquired, assumed or issued in order
to facilitate the commencement of the operations of the
Acquiring Fund.
(e)The Acquiring Fund is not, and the execution,
delivery and performance of this Agreement will not result,
in a violation of the Acquiring Trust's Declaration of
Trust or By-Laws or of any material agreement, indenture,
instrument, contract, lease, or other undertaking to which
the Acquiring Fund is a party or by which it is bound.
(f)No litigation, administrative proceeding or
investigation of or before any court or governmental body
is presently pending or to its knowledge threatened against
the Acquiring Fund or any of its properties or assets,
which, if adversely determined, would materially and
adversely affect the Acquiring Fund's financial condition,
the conduct of its business or the ability of the Acquiring
Fund to carry out the transactions contemplated by this
Agreement. The Acquiring Fund knows of no facts that might
form the basis for the institution of such proceedings and
it is not a party to or subject to the provisions of any
order, decree, or judgment of any court or governmental
body that materially and adversely affects its business or
its ability to consummate the transaction contemplated
herein.
(g)Before the Closing Date, the Acquiring Fund shall
have duly authorized the shares of the Acquiring Fund to be
issued and delivered to the Target Fund as of the Effective
Time. When issued and delivered, the shares of the
Acquiring Fund shall be duly and validly issued, fully paid
and non-assessable by the Acquiring Fund (recognizing that
under Massachusetts law, Acquiring Fund shareholders, under
certain circumstances, could be held personally liable for
the obligations of the Acquiring Fund). The Acquiring Fund
has no outstanding options, warrants, or other rights to
subscribe for or purchase shares of the Acquiring Fund, and
there are no outstanding securities convertible into shares
of the Acquiring Fund.
(h)The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action
on the part of the Acquiring Fund, including the
determination of the Acquiring Fund Board required pursuant
to Rule 17a-8(a) of the 1940 Act. This Agreement
constitutes a valid and binding obligation of the 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.
(i)The Acquiring Fund Shares to be issued and
delivered to the Target Fund for the account of the Target
Fund Shareholders pursuant to the terms of this Agreement
will, at the Closing Date, have been duly authorized. When
so issued and delivered, such shares will be duly and
validly issued shares of the Acquiring Fund, and will be
fully paid and non-assessable (recognizing that under
Massachusetts law, Acquiring Fund shareholders, under
certain circumstances, could be held personally liable for
the obligations of the Acquiring Fund).
(j)The information to be furnished by the Acquiring
Fund for use in connection with the transactions
contemplated herein shall be accurate and complete in all
material respects and shall comply in all material respects
with federal securities laws and other laws and
regulations.
(k)Any written information furnished by the
Acquiring Trust with respect to the Acquiring Fund for use
in connection with the Reorganization, does not and will
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated or necessary
to make the statements, in light of the circumstances under
which such statements were made, not misleading.
(l)The Acquiring Fund will have the same investment
objective, investment policies, investment advisor, sub-
advisor, portfolio managers and service providers as the
Target Fund.
(m)The Acquiring Fund agrees to use all reasonable
efforts to obtain the approvals and authorizations required
by the 1933 Act, the 1940 Act, and any state securities
laws as it may deem appropriate in order to continue its
operations after the Closing Date.
ARTICLE V
COVENANTS OF THE FUNDS
Section 5.1.Operation in Ordinary Course. Subject to Section
1.2, each of the Acquiring Fund and the Target Fund will operate
its respective business in the ordinary course between the date
of this Agreement and the Closing Date.
Section 5.2.Investment Representation. The Target Fund
covenants that the Acquiring Fund Shares to be issued pursuant
to this Agreement are not being acquired for the purpose of
making any distribution, other than in connection with the
Reorganization and in accordance with the terms of this
Agreement.
Section 5.3.Additional Information. The Target Fund will
assist the Acquiring Fund in obtaining such information as the
Acquiring Fund reasonably requests concerning the beneficial
ownership of the Target Fund's shares.
Section 5.4.Further Action. Subject to the provisions of this
Agreement, each Fund 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, including any
actions required to be taken after the Closing Date.
Section 5.5.Statement of Earnings and Profits. As promptly as
practicable, but in any case within 60 days after the Closing
Date, the Target Fund shall furnish the Acquiring Fund, in such
form as is reasonably satisfactory to the Acquiring Fund and
which shall be certified by Trust II's Controller or Treasurer,
a statement of the earnings and profits of the Target Fund for
federal income tax purposes, as well as any net operating loss
carryovers and capital loss carryovers, that will be carried
over to the Acquiring Fund pursuant to Section 381 of the Code.
Section 0.0.Xxx Status of Reorganization. The intention of
the parties is that the Reorganization will qualify as a
reorganization within the meaning of Section 368(a) of the Code.
None of the Target Fund, Trust II, the Acquiring Fund or the
Acquiring Trust shall take any action, or cause any action to be
taken (including, without limitation, the filing of any tax
return), that is inconsistent with such treatment or results in
the failure of the transaction to qualify as a reorganization
within the meaning of Section 368(a) of the Code. At or prior
to the Closing Date, the Target Fund, Trust II, the Acquiring
Fund and the Acquiring Trust will take such action, or cause
such action to be taken, as is reasonably necessary to enable
counsel to render the tax opinion contemplated in Section 8.5
herein.
ARTICLE VI
CONDITION PRECEDENT TO OBLIGATIONS OF THE TARGET FUND
The obligations of the Target Fund to consummate the
transactions provided for herein shall be subject to the
fulfillment or waiver of the following conditions:
Section 6.1.The Acquiring Fund shall have delivered to the
Target Fund on the Closing Date a certificate executed in its
name by the Acquiring Trust's President, Chief Executive Officer
or Chief Financial Officer and Treasurer, in a form reasonably
satisfactory to the Target Fund and dated as of the Closing
Date, to the effect that the representations, covenants, and
warranties of the Acquiring Trust, on behalf of the Acquiring
Fund, made in this Agreement are true and correct in all
material respects on and as of the Closing Date, with the same
force and effect as if made on and as of the Closing Date, and
as to such other matters as the Target Fund shall reasonably
request.
Section 6.2.The Acquiring Fund shall have performed and
complied in all material respects with all terms, conditions,
covenants, obligations, agreements and restrictions required by
this Agreement to be performed or complied with by the Acquiring
Fund prior to or at the Closing.
Section 6.3Regulatory Approvals. All regulatory consents,
authorizations, orders, approvals or filings required to be
obtained or made by the Acquiring Fund under the federal laws of
the United States of America or the laws of the Commonwealth of
Massachusetts for the issuance of Acquiring Fund Shares and all
other transactions pursuant to the Agreement shall have been
obtained or made.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to consummate the
transactions provided for herein shall be subject to the
fulfillment or waiver of the following conditions:
Section 7.1.The Target Fund shall have delivered to the
Acquiring Fund on the Closing Date a certificate executed in its
name by Trust II's President, Chief Executive Officer or Chief
Financial Officer and Treasurer, in a form reasonably
satisfactory to the Acquiring Fund and dated as of the Closing
Date, to the effect that the representations, covenants, and
warranties of Trust II, on behalf of the Target Fund, made in
this Agreement are true and correct in all material respects on
and as of the Closing Date, with the same force and effect as if
made on and as of the Closing Date, and as to such other matters
as the Acquiring Fund shall reasonably request.
Section 7.2.The Target Fund shall have delivered to the
Acquiring Fund a statement of the Target Fund's assets and
liabilities, together with a list of the Target Fund's portfolio
securities showing the tax basis of such securities by lot and
the holding periods of such securities, as of the Closing Date,
certified by the Controller or Treasurer of Trust II.
Section 7.3.The Target Fund shall have performed and complied
in all material respects with all terms, conditions, covenants,
obligations, agreements and restrictions required by this
Agreement to be performed or complied with by the Target Fund
prior to or at the Closing.
Section 7.4.The Target Fund shall have delivered to the
Acquiring Fund such records, agreements, certificates,
instruments and such other documents as the Acquiring Fund shall
reasonably request.
ARTICLE VIII
FURTHER CONDITIONS PRECEDENT
The obligations of the Target Fund and the Acquiring Fund
to consummate the transactions provided for herein shall also be
subject to the fulfillment (or waiver by the affected parties)
of the following conditions:
Section 8.1.On the Closing Date, the Commission shall not have
issued an unfavorable report under Section 25(b) of the 1940
Act, or instituted any proceeding seeking to enjoin the
consummation of the transactions contemplated by this Agreement
under Section 25(c) of the 1940 Act. Furthermore, no action,
suit or other proceeding shall be threatened or pending before
any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in
connection with this Agreement or the transactions contemplated
herein.
Section 8.2.All required consents of other parties and all
other consents, orders, and permits of federal, state and local
regulatory authorities (including those of the Commission and of
state securities authorities, including any necessary "no-
action" positions and exemptive orders from such federal and
state authorities) to permit consummation of the transactions
contemplated herein shall have been obtained.
Section 8.3.The Acquiring Fund shall have received on the
Closing Date an opinion from Xxxxxx, Xxxxx & Xxxxxxx, LLP, dated
as of the Closing Date, substantially to the effect that:
(a)Trust II is a validly existing voluntary
association with transferable shares of beneficial interest
commonly referred to as a "Massachusetts business trust"
and is existing under the laws of the Commonwealth of
Massachusetts.
(b)The Agreement has been duly authorized, executed
and delivered by Trust II, on behalf of the Target Fund.
(c)Assuming that the Acquiring Fund Shares will be
issued in accordance with the terms of this Agreement, the
Acquiring Fund Shares to be issued and delivered to the
Target Fund Shareholders as provided by this Agreement are
duly authorized and upon such delivery will be validly
issued, fully paid and non-assessable, except that, as
described in the registration statement for the Acquiring
Fund, shareholders of the Acquiring Fund may under certain
circumstances be held personally liable for its
obligations.
(d)The execution and delivery of the Agreement by
Trust II, on behalf of the Target Fund, did not, and the
exchange of the Target Fund's assets for Acquiring Fund
Shares pursuant to the Agreement will not, violate Trust
II's Declaration of Trust or By-Laws.
(e)To the knowledge of such counsel, and without any
independent investigation, all regulatory consents,
authorizations, orders, approvals or filings required to be
obtained or made by the Target Fund under the laws of the
Commonwealth of Massachusetts for the transfer of the
Target Fund's assets and liabilities in exchange for
Acquiring Fund Shares and all other transactions pursuant
to the Agreement have been obtained or made.
Section 8.4.The Target Fund shall have received on the Closing
Date an opinion from Xxxxxx, Xxxxx & Bockius, LLP, dated as of
the Closing Date, substantially to the effect that:
(a)The Acquiring Trust is a validly existing
voluntary association with transferable shares of
beneficial interest commonly referred to as a
"Massachusetts business trust," and is existing under the
laws of the Commonwealth of Massachusetts.
(b)The Agreement has been duly authorized, executed
and delivered by the Acquiring Trust.
(c)The execution and delivery of the Agreement by
the Acquiring Trust, on behalf of the Acquiring Fund, did
not, and the exchange of the Target Fund's assets for
Acquiring Fund Shares pursuant to the Agreement and the
issuance of Acquiring Fund Shares pursuant to the Agreement
will not, violate the Acquiring Trust's Declaration of
Trust or By-Laws.
(d)To the knowledge of such counsel, and without any
independent investigation, all regulatory consents,
authorizations, orders, approvals or filings required to be
obtained or made by the Acquiring Fund under the laws of
the Commonwealth of Massachusetts for the issuance of
Acquiring Fund Shares and all other transactions pursuant
to the Agreement have been obtained or made.
Section 8.5.The Funds shall have received on the Closing Date
an opinion of Xxxxxxx and Xxxxxx LLP addressed to the Acquiring
Fund and the Target Fund substantially to the effect that for
federal income tax purposes:
(a)The transfer of all the Target Fund's assets to
the Acquiring Fund in exchange solely for Acquiring Fund
Shares and the assumption by the Acquiring Fund of all the
liabilities of the Target Fund followed by the pro rata, by
class, distribution to the Target Fund Shareholders of all
the Acquiring Fund Shares received by the Target Fund in
complete liquidation of the Target Fund will constitute a
"reorganization" within the meaning of Section 368(a) of
the Code and the Acquiring Fund and the Target Fund will
each be a "party to a reorganization," within the meaning
of Section 368(b) of the Code, with respect to the
Reorganization.
(b)No gain or loss will be recognized by the
Acquiring Fund upon the receipt of all the assets of the
Target Fund solely in exchange for Acquiring Fund Shares
and the assumption by the Acquiring Fund of all the
liabilities of the Target Fund.
(c)No gain or loss will be recognized by the Target
Fund upon the transfer of all the Target Fund's assets to
the Acquiring Fund solely in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of all the
liabilities of the Target Fund or upon the distribution
(whether actual or constructive) of such Acquiring Fund
Shares to the Target Fund Shareholders solely in exchange
for such shareholders' shares of the Target Fund in
complete liquidation of the Target Fund.
(d)No gain or loss will be recognized by the Target
Fund Shareholders upon the exchange of their Target Fund
shares solely for Acquiring Fund Shares in the
Reorganization.
(e)The aggregate basis of the Acquiring Fund Shares
received by each Target Fund Shareholder pursuant to the
Reorganization will be the same as the aggregate basis of
the Target Fund shares exchanged therefor by such
shareholder. The holding period of the Acquiring Fund
Shares received by each Target Fund Shareholder will
include the period during which the Target Fund shares
exchanged therefor were held by such shareholder, provided
such Target Fund shares are held as capital assets at the
time of the Reorganization.
(f)The basis of the Target Fund's assets transferred
to the Acquiring Fund will be the same as the basis of such
assets to the Target Fund immediately before the
Reorganization. The holding period of the assets of the
Target Fund in the hands of the Acquiring Fund will include
the period during which those assets were held by the
Target Fund.
No opinion will be expressed as to (1) the effect of the
Reorganization on (A) the Target Fund or the Acquiring Fund with
respect to any asset as to which any unrealized gain or loss is
required to be recognized for federal income tax purposes at the
end of a taxable year (or on the termination thereof) under a
xxxx-to-market system of accounting, (B) any Target Fund
shareholder that is required to recognize unrealized gains and
losses for federal income tax purposes under a xxxx-to-market
system of accounting, or (C) the Target Fund or the Acquiring
Fund with respect to any stock held in a passive foreign
investment company as defined in Section 1297(a) of the Code or
(2) any other federal tax issues (except those set forth above)
and all state, local or foreign tax issues of any kind.
Such opinion shall be based on certain factual
representations, reasonable assumptions and such other
representations as Xxxxxxx and Xxxxxx LLP may request of the
Funds, and the Target Fund and the Acquiring Fund will cooperate
to make and certify the accuracy of such representations.
Notwithstanding anything herein to the contrary, neither the
Acquiring Fund nor the Target Fund may waive the conditions set
forth in this Section 8.5.
ARTICLE IX
EXPENSES
Section 9.1.The Adviser will bear all expenses incurred by the
Target Fund and the Acquiring Fund in connection with this
Agreement and the transactions contemplated hereby whether or
not the Reorganization is consummated. Notwithstanding the
foregoing, such expenses will in any event be paid by the party
directly incurring such expenses if and to the extent that the
payment by another party of such expenses would result in the
disqualification of such party as a regulated investment company
within the meaning of Section 851 of the Code.
ARTICLE X
ENTIRE AGREEMENT
Section 10.1.The parties agree that no party has made to the
other parties any representation, warranty and/or covenant not
set forth herein, and that this Agreement constitutes the entire
agreement between and among the parties.
ARTICLE XI
TERMINATION
Section 11.1.This Agreement may be terminated by the mutual
agreement of the parties and such termination may be effected by
(i) Trust II's President or Chief Executive Officer of Trust II,
and (ii) the Acquiring Trust's President or Chief Executive
Officer of the Acquiring Trust, without further action by the
Target Fund Board or Acquiring Fund Board. In addition, either
Fund may, at its option, terminate this Agreement at or before
the Closing Date due to:
(a)a breach by any other party of any
representation, warranty, or agreement contained herein to
be performed at or before the Closing Date, if not cured
within 30 days of notification to the breaching party and
prior to the Closing;
(b)a condition precedent to the obligations of the
terminating party that has not been met or waived and it
reasonably appears that it will not or cannot be met; or
(c)a determination by the Target Fund Board or
Acquiring Fund Board that the consummation of the
transactions contemplated herein is not in the best
interests of the Target Fund or Acquiring Fund,
respectively.
Section 00.0.Xx the event of any such termination, in the
absence of willful default, there shall be no liability for
damages on the part of Trust II or the Acquiring Trust.
ARTICLE XII
AMENDMENTS
Section 12.1.This Agreement may be amended, modified, or
supplemented in such manner as may be mutually agreed upon in
writing by any duly authorized officer of Trust II and any duly
authorized officer of the Acquiring Trust, as such officers are
specifically authorized by the Target Fund Board and the
Acquiring Fund Board, respectively.
ARTICLE XIII
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION OF LIABILITY
Section 13.1.The article and section headings contained in this
Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
Section 13.2.This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 13.3.This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of
Massachusetts.
Section 13.4.This Agreement shall bind and inure to the benefit
of the parties hereto and their respective successors and
assigns, but, except as provided in this section, 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.
Section 00.0.Xx is expressly agreed that the obligations of the
Funds hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents, or employees of either
Trust II or the Acquiring Trust, personally, but shall bind only
the property of such Fund, as provided in Trust II's Declaration
of Trust and the Acquiring Trust's Declaration of Trust. The
execution and delivery of this Agreement have been authorized by
the Trustees of the Acquiring Trust, on behalf of the Acquiring
Fund, and the Trustees of Trust II, on behalf of the Target
Fund, and signed by the respective authorized officers of Trust
II and the Acquiring Trust acting as such. Neither the
authorization by such Trustees nor the execution and delivery by
such officers shall be deemed to have been made by any of them
individually or to impose any liability on any of them
personally, but shall bind only the property of a Fund as
provided in Trust II's Declaration of Trust and the Acquiring
Trust's Declaration of Trust.
Section 00.0.Xx is understood and agreed that no Fund shall
have any liability for the obligations of the other Fund, and
the liabilities of each Fund shall be several and not joint.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have duly executed this
Agreement, all as of the date first written above.
DESTRA INVESTMENT TRUST, on behalf
of Destra Focused Equity Fund
By:
Name:
__________________________
___
Title:
__________________________
___
ACKNOWLEDGED:
By:
Name:
Title:
DESTRA INVESTMENT TRUST II, on
behalf of Destra Focused
Equity Fund
By:
Name:________________________
______
Title:_______________________
________
ACKNOWLEDGED:
By:
Name:
Title:
The undersigned is a party to
this Agreement for the purposes
of Section 9.1 only:
DESTRA CAPITAL ADVISORS LLC
By:
Name:__________________________
____
Title:_________________________
______
ACKNOWLEDGED:
By:
Name:
Title:
