AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the Agreement)
is made as of August 31, 2016 in Boston, Massachusetts, by and
between XXXXXX INVESTMENT FUNDS, a Massachusetts business trust
(the Trust), on behalf of its XXXXXX GROWTH OPPORTUNITIES FUND
series (the Acquiring Fund), and PUTNAM VOYAGER FUND, a
Massachusetts business trust (the Acquired Fund).
PLAN OF REORGANIZATION
(a) Acquired Fund agrees to sell, assign, convey, transfer and
deliver to Acquiring Fund on the Exchange Date (as defined in
Section 6) all of its properties and assets existing at the
Valuation Time (as defined in Section 4(g)). In consideration
therefor, Acquiring Fund agrees, on the Exchange Date, to
assume all of the liabilities of Acquired Fund existing at
the Valuation Time and to deliver to Acquired Fund (i) a
number of full and fractional Class A shares of beneficial
interest of Acquiring Fund (the Class A Merger Shares) having
an aggregate net asset value equal to the value of the assets
of Acquired Fund attributable to Class A shares of Acquired
Fund transferred to Acquiring Fund on such date less the
value of the liabilities of Acquired Fund attributable to
Class A shares of Acquired Fund assumed by Acquiring Fund on
such date, (ii) a number of full and fractional Class B
shares of beneficial interest of Acquiring Fund (the Class B
Merger Shares) having an aggregate net asset value equal to
the value of the assets of Acquired Fund attributable to
Class B shares of Acquired Fund transferred to Acquiring Fund
on such date less the value of the liabilities of Acquired
Fund attributable to Class B shares of Acquired Fund assumed
by Acquiring Fund on such date, (iii) a number of full and
fractional Class C shares of beneficial interest of Acquiring
Fund (the Class C Merger Shares) having an aggregate net
asset value equal to the value of the assets of Acquired Fund
attributable to Class C shares of Acquired Fund transferred
to Acquiring Fund on such date less the value of the
liabilities of Acquired Fund attributable to Class C shares
of Acquired Fund assumed by Acquiring Fund on such date, (iv)
a number of full and fractional Class M shares of beneficial
interest of Acquiring Fund (the Class M Merger Shares) having
an aggregate net asset value equal to the value of the assets
of Acquired Fund attributable to Class M shares of Acquired
Fund transferred to Acquiring Fund on such date less the
value of the liabilities of Acquired Fund attributable to
Class M shares of Acquired Fund assumed by Acquiring Fund on
such date, (v) a number of full and fractional Class R shares
of beneficial interest of Acquiring Fund (the Class R Merger
Shares) having an aggregate net asset value equal to the
value of the assets of Acquired Fund attributable to Class R
shares of Acquired Fund transferred to Acquiring Fund on such
date less the value of the liabilities of Acquired Fund
attributable to Class R shares of Acquired Fund assumed by
Acquiring Fund on such date, (vi) a number of full and
fractional Class R5 shares of beneficial interest of
Acquiring Fund (the Class R5 Merger Shares) having an
aggregate net asset value equal to the value of the assets of
Acquired Fund attributable to Class R5 shares of Acquired
Fund transferred to Acquiring Fund on such date less the
value of the liabilities of Acquired Fund attributable to
Class R5 shares of Acquired Fund assumed by Acquiring Fund on
such date, (vii) a number of full and fractional Class R6
shares of beneficial interest of Acquiring Fund (the Class R6
Merger Shares) having an aggregate net asset value equal to
the value of the assets of Acquired Fund attributable to
Class R6 shares of Acquired Fund transferred to Acquiring
Fund on such date less the value of the liabilities of
Acquired Fund attributable to Class R6 shares of Acquired
Fund assumed by Acquiring Fund on such date, and (viii) a
number of full and fractional Class Y shares of beneficial
interest of Acquiring Fund (the Class Y Merger Shares) having
an aggregate net asset value equal to the value of the assets
of Acquired Fund attributable to Class Y shares of Acquired
Fund transferred to Acquiring Fund on such date less the
value of the liabilities of Acquired Fund attributable to
Class Y shares of Acquired Fund assumed by Acquiring Fund on
such date. The Class A Merger Shares, Class B Merger Shares,
Class C Merger Shares, Class M Merger Shares, Class R Merger
Shares, Class R5 Merger Shares, Class R6 Merger Shares, and
Class Y Merger Shares are referred to collectively as the
Merger Shares. The reorganization described in this Plan is
intended to be a reorganization within the meaning of Section
368 of the Internal Revenue Code of 1986, as amended (the
Code). Before the Exchange Date, Acquired Fund will declare
and pay to its shareholders a dividend and/or other
distribution in an amount such that it will have distributed
all of its net investment income and capital gains as
described in Section 8(l) hereof.
(b) Upon consummation of the transactions described in
paragraph (a) of this Agreement, Acquired Fund will
distribute in complete liquidation to its Class A, Class B,
Class C, Class M, Class R, Class R5, Class R6, and Class Y
shareholders of record as of the Exchange Date the Class A,
Class B, Class C, Class M, Class R, Class R5, Class R6, and
Class Y Merger Shares, each shareholder being entitled to
receive that proportion of Class A Merger Shares, Class B
Merger Shares, Class C Merger Shares, Class M Merger Shares,
Class R Merger Shares, Class R5 Merger Shares, Class R6
Merger Shares, or Class Y Merger Shares that the number of
Class A, Class B, Class C, Class M, Class R, Class R5, Class
R6, and Class Y shares of beneficial interest of Acquired
Fund held by such shareholder bears to the number of Class A,
Class B, Class C, Class M, Class R, Class R5, Class R6, or
Class Y shares of Acquired Fund outstanding on such date.
AGREEMENT
Acquiring Fund and Acquired Fund agree as follows:
1. Representations and warranties of Acquiring Fund.
Acquiring Fund represents and warrants to and agrees with
Acquired Fund that:
(a) Acquiring Fund is a series of the Trust, a business trust
duly established and validly existing under the laws of The
Commonwealth of Massachusetts, and has power to own all of
its properties and assets and to carry out its obligations
under this Agreement. The Trust is not required to qualify as
a foreign association in any jurisdiction. The Trust has all
necessary federal, state and local authorizations to carry on
its business as now being conducted and to carry out this
Agreement.
(b) The Trust is registered under the Investment Company Act of
1940, as amended (the 1940 Act), as an open-end management
investment company, and its registration has not been revoked
or rescinded and is in full force and effect.
(c) A statement of assets and liabilities, statement of
operations, statement of changes in net assets and schedule
of investments (indicating their market values) of Acquiring
Fund for the fiscal year ended July 31, 2016, audited by KPMG
LLP, the Acquiring Funds independent registered public
accounting firm, have been furnished to Acquired Fund. The
statements of assets and liabilities and schedules of
investments fairly present the financial position of
Acquiring Fund as of the dates thereof and the statements of
operations and changes in net assets fairly reflect the
results of its operations and changes in net assets for the
periods covered thereby in conformity with U.S. generally
accepted accounting principles.
(d) The prospectus and statement of additional information
dated November 30, 2015, previously furnished to Acquired
Fund, as modified by any amendment or supplement thereto or
any superseding prospectus or statement of additional
information in respect thereof in effect before the Exchange
Date, which will be furnished to Acquired Fund (collectively,
the Acquiring Fund Prospectus), do not, as of the date
hereof, and will not, as of the Exchange Date, 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; provided however,
that Acquiring Fund makes no representation or warranty as to
any information in the Acquiring Fund Prospectus that does
not specifically relate to Acquiring Fund.
(e) There are no material legal, administrative or other
proceedings pending or, to the knowledge of Acquiring Fund,
threatened against Acquiring Fund which assert liability or
which may, if successfully prosecuted to their conclusion,
result in liability on the part of Acquiring Fund, other than
as have been disclosed in the Registration Statement (defined
below), the Acquiring Fund Prospectus or otherwise disclosed
in writing to Acquired Fund.
(f) Acquiring Fund has no known liabilities of a material
nature, contingent or otherwise, other than those shown as
belonging to it on its statement of assets and liabilities as
of July 31, 2016 and those incurred in the ordinary course of
Acquiring Funds business as an investment company since such
date.
(g) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by
Acquiring Fund of the transactions contemplated by this
Agreement, except such as may be required under the
Securities Act of 1933, as amended (the 1933 Act), the
Securities Exchange Act of 1934, as amended (the 1934 Act),
the 1940 Act, state securities or blue sky laws (which term
as used herein will include the laws of the District of
Columbia and of Puerto Rico) or the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976 (the H-S-R Act).
(h) The registration statement and any amendment thereto
(including any post-effective amendment) (the Registration
Statement) filed with the Securities and Exchange Commission
(the Commission) by Acquiring Fund on Form N-14 relating to
the Merger Shares issuable hereunder, on the effective date
of the Registration Statement (i) will comply in all material
respects with the provisions of the 1933 Act, the 1934 Act
and the 1940 Act and the rules and regulations thereunder and
(ii) will 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; and at the Exchange Date, the prospectus
contained in the Registration Statement (the Prospectus), as
amended or supplemented by any amendments or supplements
filed or requested to be filed with the Commission by
Acquiring Fund, will 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; provided however, that none of the
representations and warranties in this subsection shall apply
to statements in or omissions from the Registration Statement
or the Prospectus made in reliance upon and in conformity
with information furnished by Acquired Fund for use in the
Registration Statement or the Prospectus.
(i) There are no material contracts outstanding to which
Acquiring Fund is a party, other than as disclosed in the
Registration Statement or the Prospectus.
(j) All of the issued and outstanding shares of beneficial
interest of Acquiring Fund have been offered for sale and
sold in conformity with all applicable federal securities
laws.
(k) For each taxable year of its operation, Acquiring Fund has
qualified and will at all times through the Exchange Date
qualify for taxation as a regulated investment company under
Sections 851 and 852 of the Code.
(l) Acquiring Fund has timely filed or will timely file (taking
into account extensions) all federal, state and other tax
returns or reports which are required to be filed by
Acquiring Fund and all such tax returns and reports are or
will be true, correct and complete in all material respects.
Acquiring Fund has timely paid or will timely pay all
federal, state and other taxes shown to be due or required to
be shown as due on said returns or on any assessments
received by Acquiring Fund. All tax liabilities of Acquiring
Fund have been adequately provided for on its books, and to
the knowledge of Acquiring Fund, no tax deficiency or
liability of Acquiring Fund has been asserted, and no
question with respect thereto has been raised, by the
Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid. As of
the Exchange Date, Acquiring Fund is not under audit by the
Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
(m) The issuance of the Merger Shares pursuant to this
Agreement will be in compliance with all applicable federal
securities laws.
(n) The Merger Shares have been duly authorized and, when
issued and delivered pursuant to this Agreement, will be
legally and validly issued and will be fully paid and
nonassessable by Acquiring Fund, and no shareholder of
Acquiring Fund will have any preemptive right of subscription
or purchase in respect thereof.
2. Representations and warranties of Acquired Fund.
Acquired Fund represents and warrants to and agrees with
Acquiring Fund that:
(a) Acquired Fund is a business trust duly established and
validly existing under the laws of The Commonwealth of
Massachusetts, and has power to own all of its properties and
assets and to carry out its obligations under this Agreement.
Acquired Fund is not required to qualify as a foreign
association in any jurisdiction. Acquired Fund has all
necessary federal, state and local authorizations to carry on
its business as now being conducted and to carry out this
Agreement.
(b) Acquired Fund is registered under the 1940 Act as an open-
end management investment company, and its registration has
not been revoked or rescinded and is in full force and
effect.
(c) A statement of assets and liabilities, statement of
operations, statement of changes in net assets and schedule
of investments (indicating their market values) of Acquired
Fund for the fiscal year ended July 31, 2016, audited by
PricewaterhouseCoopers LLP, the Acquired Funds independent
registered public accounting firm, have been furnished to
Acquiring Fund. The statements of assets and liabilities and
schedules of investments fairly present the financial
position of Acquired Fund as of the dates thereof, and the
statements of operations and changes in net assets fairly
reflect the results of its operations and changes in net
assets for the periods covered thereby in conformity with
U.S. generally accepted accounting principles.
(d) The prospectus and statement of additional information
dated November 30, 2015, previously furnished to Acquiring
Fund, together with any amendment or supplement thereto or
any superseding prospectus or statement of additional
information in respect thereof in effect before the Exchange
Date, which will be furnished to Acquiring Fund (collectively
the Acquired Fund Prospectus), do not, as of the date hereof,
and will not, as of the Exchange Date, 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; provided however, that
Acquired Fund makes no representation or warranty as to any
information in the Acquired Fund Prospectus that does not
specifically relate to Acquired Fund.
(e) There are no material legal, administrative or other
proceedings pending or, to the knowledge of Acquired Fund,
threatened against Acquired Fund which assert liability or
which may, if successfully prosecuted to their conclusion,
result in liability on the part of Acquired Fund, other than
as have been disclosed in the Registration Statement, the
Acquired Fund Prospectus or otherwise disclosed in writing to
the Acquiring Fund.
(f) Acquired Fund has no known liabilities of a material
nature, contingent or otherwise, other than those shown as
belonging to it on its statement of assets and liabilities as
of July 31, 2016 and those incurred in the ordinary course of
Acquired Funds business as an investment company since such
date. Before the Exchange Date, Acquired Fund will advise
Acquiring Fund of all material liabilities, contingent or
otherwise, incurred by it subsequent to July 31, 2016,
whether or not incurred in the ordinary course of business.
(g) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by
Acquired Fund of the transactions contemplated by this
Agreement, except such as may be required under the 1933 Act,
the 1934 Act, the 1940 Act, state securities or blue sky
laws, or the H-S-R Act.
(h) The Registration Statement and the Prospectus, on the
effective date of the Registration Statement and insofar as
they do not relate to Acquiring Fund (i) will comply in all
material respects with the provisions of the 1933 Act, the
1934 Act and the 1940 Act and the rules and regulations
thereunder and (ii) will 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; and at the Exchange Date, the Prospectus, as
amended or supplemented by any amendments or supplements
filed or requested to be filed with the Commission by the
Acquiring Fund, will 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; provided however, that the representations
and warranties in this subsection shall apply only to
statements of fact relating to Acquired Fund contained in the
Registration Statement or the Prospectus, or omissions to
state in any thereof a material fact relating to Acquired
Fund, as such Registration Statement and Prospectus shall be
furnished to Acquired Fund in definitive form as soon as
practicable following effectiveness of the Registration
Statement and before any public distribution of the
Prospectus.
(i) There are no material contracts outstanding to which
Acquired Fund is a party, other than as disclosed in the
Acquired Funds registration statement (including any post-
effective amendment) filed with the Commission on Form N-1A
or the Acquired Funds Prospectus.
(j) All of the issued and outstanding shares of beneficial
interest of Acquired Fund have been offered for sale and sold
in conformity with all applicable federal securities laws.
(k) For each taxable year of its operation (including the
taxable year ending on the Exchange Date), Acquired Fund has
qualified and will at all times through the Exchange Date
qualify for taxation as a regulated investment company under
Sections 851 and 852 of the Code.
(l) Acquired Fund has timely filed or will timely file (taking
into account extensions) all federal, state and other tax
returns or reports which are required to be filed by Acquired
Fund on or before the Exchange Date, and all such tax returns
and reports are or will be true, correct and complete in all
material respects. Acquiring Fund has timely paid or will
timely pay all federal, state and other taxes shown to be due
or required to be shown as due on said returns or on any
assessments received by Acquired Fund. All tax liabilities of
Acquired Fund have been adequately provided for on its books,
and to the knowledge of Acquired Fund, no tax deficiency or
liability of Acquired Fund has been asserted, and no question
with respect thereto has been raised, by the Internal Revenue
Service or by any state or local tax authority for taxes in
excess of those already paid. As of the Exchange Date,
Acquired Fund is not under audit by the Internal Revenue
Service or by any state or local tax authority for taxes in
excess of those already paid.
(m) At both the Valuation Time and the Exchange Date, Acquired
Fund will have full right, power and authority to sell,
assign, transfer and deliver the Investments (defined below)
and any other assets and liabilities of Acquired Fund to be
transferred to Acquiring Fund pursuant to this Agreement. At
the Exchange Date, subject only to the delivery of the
Investments and any such other assets and liabilities as
contemplated by this Agreement, Acquiring Fund will acquire
the Investments and any such other assets and liabilities
subject to no encumbrances, liens or security interests
whatsoever and without any restrictions upon the transfer
thereof (except for restrictions previously disclosed to
Acquiring Fund by Acquired Fund). As used in this Agreement,
the term Investments means Acquired Funds investments shown
on the schedule of its investments as of July 31, 2016
referred to in Section 2(c) hereof, as supplemented with such
changes as Acquired Fund makes and changes resulting from
stock dividends, stock splits, mergers and similar corporate
actions.
(n) No registration under the 1933 Act of any of the
Investments would be required if they were, as of the time of
such transfer, the subject of a public distribution by either
of Acquiring Fund or Acquired Fund, except as previously
disclosed to Acquiring Fund by Acquired Fund.
(o) At the Exchange Date, Acquired Fund will have sold such of
its assets, if any, as may be necessary to ensure that, after
giving effect to the acquisition of the assets of Acquired
Fund pursuant to this Agreement, Acquiring Fund will remain
in compliance with its investment restrictions as set forth
in the Registration Statement.
3. Reorganization.
(a) Subject to the other terms and conditions contained herein
(including Acquired Funds obligation to distribute to its
shareholders all of its net investment income and capital
gains as described in Section 8(l) hereof), Acquired Fund
agrees to sell, assign, convey, transfer and deliver to
Acquiring Fund, and Acquiring Fund agrees to acquire from
Acquired Fund, on the Exchange Date all of the Investments
and all of the cash and other properties and assets of
Acquired Fund, whether accrued or contingent (including cash
received by Acquired Fund upon the liquidation by Acquired
Fund of any investments purchased by Acquired Fund after July
31, 2016 and designated by Acquiring Fund as being unsuitable
for it to acquire), in exchange for that number of Merger
Shares provided for in Section 4 and the assumption by
Acquiring Fund of all of the liabilities of Acquired Fund,
whether accrued or contingent, existing at the Valuation
Time. Pursuant to this Agreement, Acquired Fund will, as soon
as practicable after the Exchange Date, distribute all of the
Class A Merger Shares, Class B Merger Shares, Class C Merger
Shares, Class M Merger Shares, Class R Merger Shares, Class
R5 Merger Shares, Class R6 Merger Shares, and Class Y Merger
Shares received by it to the Class A, Class B, Class C, Class
M, Class R, Class R5, Class R6, and Class Y shareholders,
respectively, of Acquired Fund, in complete liquidation of
Acquired Fund.
(b) Reserved.
(c) Acquired Fund agrees to pay or cause to be paid to
Acquiring Fund any interest, cash or such dividends, rights
and other payments received by it on or after the Exchange
Date with respect to the Investments and other properties and
assets of Acquired Fund, whether accrued or contingent. Any
such distribution will be deemed included in the assets
transferred to Acquiring Fund at the Exchange Date and will
not be separately valued unless the securities in respect of
which such distribution is made have gone ex before the
Valuation Time, in which case any such distribution which
remains unpaid at the Exchange Date will be included in the
determination of the value of the assets of Acquired Fund
acquired by Acquiring Fund.
4. Exchange date; valuation time.
On the Exchange Date, Acquiring Fund will deliver to Acquired
Fund (i) a number of full and fractional Class A Merger Shares
having an aggregate net asset value equal to the value of the
assets of Acquired Fund attributable to Class A shares of
Acquired Fund transferred to Acquiring Fund on that date less
the value of the liabilities of Acquired Fund attributable to
Class A shares of Acquired Fund assumed by Acquiring Fund on
that date; (ii) a number of full and fractional Class B Merger
Shares having an aggregate net asset value equal to the value of
the assets of Acquired Fund attributable to Class B shares of
Acquired Fund transferred to Acquiring Fund on that date less
the value of the liabilities of Acquired Fund attributable to
Class B shares of Acquired Fund assumed by Acquiring Fund on
that date; (iii) a number of full and fractional Class C Merger
Shares having an aggregate net asset value equal to the value of
the assets of Acquired Fund attributable to Class C shares of
Acquired Fund transferred to Acquiring Fund on that date less
the value of the liabilities of Acquired Fund attributable to
Class C shares of Acquired Fund assumed by Acquiring Fund on
that date; (iv) a number of full and fractional Class M Merger
Shares having an aggregate net asset value equal to the value of
the assets of Acquired Fund attributable to Class M shares of
Acquired Fund transferred to Acquiring Fund on that date less
the value of the liabilities of Acquired Fund attributable to
Class M shares of Acquired Fund assumed by Acquiring Fund on
that date; (v) a number of full and fractional Class R Merger
Shares having an aggregate net asset value equal to the value of
the assets of Acquired Fund attributable to Class R shares of
Acquired Fund transferred to Acquiring Fund on that date less
the value of the liabilities of Acquired Fund attributable to
Class R shares of Acquired Fund assumed by Acquiring Fund on
that date; (vi) a number of full and fractional Class R5 Merger
Shares having an aggregate net asset value equal to the value of
the assets of Acquired Fund attributable to Class R5 shares of
Acquired Fund transferred to Acquiring Fund on that date less
the value of the liabilities of Acquired Fund attributable to
Class R5 shares of Acquired Fund assumed by Acquiring Fund on
that date; (vii) a number of full and fractional Class R6 Merger
Shares having an aggregate net asset value equal to the value of
the assets of Acquired Fund attributable to Class R6 shares of
Acquired Fund transferred to Acquiring Fund on that date less
the value of the liabilities of Acquired Fund attributable to
Class R6 shares of Acquired Fund assumed by Acquiring Fund on
that date; and (viii) a number of full and fractional Class Y
Merger Shares having an aggregate net asset value equal to the
value of the assets of Acquired Fund attributable to Class Y
shares of Acquired Fund transferred to Acquiring Fund on that
date less the value of the liabilities of Acquired Fund
attributable to Class Y shares of Acquired Fund assumed by
Acquiring Fund on that date determined in each case as hereafter
provided in this Section 4.
(a) The net asset value of the Merger Shares to be delivered to
Acquired Fund, the value of the assets attributable to the
Class A, Class B, Class C, Class M, Class R, Class R5, Class
R6 and Class Y shares of Acquired Fund and the value of the
liabilities attributable to the Class A, Class B, Class C,
Class M, Class R, Class R5, Class R6 and Class Y shares of
Acquired Fund to be assumed by Acquiring Fund will in each
case be determined as of the Valuation Time.
(b) The net asset value of the Class A Merger Shares, Class B
Merger Shares, Class C Merger Shares, Class M Merger Shares,
Class R Merger Shares, Class R5 Merger Shares, Class R6
Merger Shares and Class Y Merger Shares and the value of the
assets and liabilities of the Class A, Class B, Class C,
Class M, Class R, Class R5, Class R6 and Class Y shares of
Acquired Fund will be determined by Acquiring Fund, in
cooperation with Acquired Fund, pursuant to procedures
customarily used by Acquiring Fund in determining the fair
market value of Acquiring Funds assets and liabilities.
(c) No adjustment will be made in the net asset value of either
Acquired Fund or Acquiring Fund to take into account
differences in realized and unrealized gains and losses.
(d) The investment restrictions of Acquired Fund will be
temporarily amended to the extent necessary to effect the
transactions contemplated by this Agreement.
(e) Acquiring Fund will issue the Merger Shares, registered in
the name of Acquired Fund, to Acquired Fund. Acquiring Fund
will then, in accordance with written instructions furnished
by Acquired Fund, re-register the Class A Merger Shares in
the names of the Class A shareholders of Acquired Fund, re-
register the Class B Merger Shares in the names of the Class
B shareholders of Acquired Fund, re-register the Class C
Merger Shares in the names of the Class C shareholders of
Acquired Fund, re-register the Class M Merger Shares in the
names of the Class M shareholders of Acquired Fund, re-
register the Class R Merger Shares in the names of the Class
R shareholders of Acquired Fund, re-register the Class R5
Merger Shares in the names of the Class R5 shareholders of
Acquired Fund, re-register the Class R6 Merger Shares in the
names of the Class R6 shareholders of Acquired Fund, and re-
register the Class Y Merger Shares in the names of the Class
Y shareholders of Acquired Fund. Acquiring Fund will not
permit any Acquired Fund shareholder holding share
certificates as of the Exchange Date to receive dividends and
other distributions on the Merger Shares (although such
dividends and other distributions will be credited to the
account of such shareholder) or pledge the Merger Shares
until such shareholder has surrendered his or her outstanding
Acquired Fund certificates or, in the event of lost, stolen,
or destroyed certificates, posted adequate bond. In the event
that a shareholder is not permitted to receive dividends and
other distributions on the Merger Shares as provided in the
preceding sentence, Acquiring Fund will pay any such
dividends or distributions in additional shares,
notwithstanding any election such shareholder has made
previously with respect to the payment, in cash or otherwise,
of dividends and distributions on shares of Acquired Fund.
Acquired Fund will, at its expense, request the shareholders
of Acquired Fund to surrender their outstanding Acquired Fund
certificates, or post adequate bond, as the case may be.
(f) Acquiring Fund will assume all liabilities of Acquired
Fund, whether accrued or contingent, in connection with the
acquisition of assets and subsequent dissolution of Acquired
Fund or otherwise.
(g) The Valuation Time is 4:00 p.m. Eastern time on October 21,
2016 or such earlier or later time and day as may be mutually
agreed upon in writing by the parties (the Valuation Time).
5. Expenses, fees, etc.
(a) All direct fees and expenses, including legal and
accounting expenses, portfolio transfer taxes (if any) or
other similar expenses incurred in connection with the
consummation by Acquired Fund and Acquiring Fund of the
transactions contemplated by this Agreement (together with
the costs specified below, Expenses) will be allocated
ratably between Acquiring Fund and Acquired Fund in
proportion to their net assets as of the Valuation Time,
except that the costs of printing and mailing the
Registration Statement will be borne by the Acquired Fund;
and provided that such Expenses will in any event be paid by
the party directly incurring such Expenses if and to the
extent that the payment by the other party of such Expenses
would result in the disqualification of Acquiring Fund or
Acquired Fund, as the case may be, as a regulated investment
company within the meaning of Section 851 of the Code.
(b) In the event the transactions contemplated by this
Agreement are not consummated by reason of (i) Acquiring
Funds being either unwilling or unable to go forward (other
than by reason of the nonfulfillment or failure of any
condition to Acquiring Funds obligations referred to in
Section 8) or (ii) the nonfulfillment or failure of any
condition to Acquired Funds obligations referred to in
Section 9, Acquiring Fund will pay directly all reasonable
fees and expenses incurred by Acquired Fund in connection
with such transactions, including, without limitation, legal,
accounting and filing fees.
(c) In the event the transactions contemplated by this
Agreement are not consummated by reason of (i) Acquired Funds
being either unwilling or unable to go forward (other than by
reason of the nonfulfillment or failure of any condition to
Acquired Funds obligations referred to in Section 9) or (ii)
the nonfulfillment or failure of any condition to Acquiring
Funds obligations referred to in Section 8, Acquired Fund
will pay directly all reasonable fees and expenses incurred
by Acquiring Fund in connection with such transactions,
including without limitation legal, accounting and filing
fees.
(d) In the event the transactions contemplated by this
Agreement are not consummated for any reason other than (i)
Acquiring Funds or Acquired Funds being either unwilling or
unable to go forward or (ii) the nonfulfillment or failure of
any condition to Acquiring Funds or Acquired Funds
obligations referred to in Section 8 or Section 9 of this
Agreement, then each of Acquiring Fund and Acquired Fund will
bear all of its own expenses incurred in connection with such
transactions.
(e) Notwithstanding any other provisions of this Agreement, if
for any reason the transactions contemplated by this
Agreement are not consummated, no party shall be liable to
the other party for any damages resulting therefrom,
including without limitation consequential damages, except as
specifically set forth above.
6. Exchange date.
Delivery of the assets of Acquired Fund to be transferred,
assumption of the liabilities of Acquired Fund to be assumed and
the delivery of the Merger Shares to be issued shall be made at
the offices of The Xxxxxx Funds, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, at 7:30 a.m. on the next full business day
following the Valuation Time, or at such other time and date
agreed to by Acquiring Fund and Acquired Fund, the date and time
upon which such delivery is to take place being referred to
herein as the Exchange Date.
7. Dissolution.
(a) Reserved.
(b) Acquired Fund agrees that the liquidation and dissolution
of Acquired Fund will be effected in the manner provided in
the Agreement and Declaration of Trust of Acquired Fund in
accordance with applicable law and that on and after the
Exchange Date, Acquired Fund will not conduct any business
except in connection with its liquidation and dissolution.
(c) Acquiring Fund will file the Registration Statement with
the Commission. Each of Acquired Fund and Acquiring Fund
will cooperate with the other, and each will furnish to the
other the information relating to itself required by the 1933
Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder to be set forth in the Registration
Statement, including the Prospectus.
8. Conditions to Acquiring Funds obligations.
The obligations of Acquiring Fund hereunder are subject to the
following conditions:
(a) That this Agreement is adopted and the transactions
contemplated hereby are approved by the affirmative vote of
(i) at least a majority of the Trustees of Acquired Fund
(including a majority of those Trustees who are not
interested persons of Acquired Fund, as defined in Section
2(a)(19) of the 0000 Xxx) and (ii) at least a majority of the
Trustees of Acquiring Fund (including a majority of those
Trustees who are not interested persons of Acquiring Fund, as
defined in Section 2(a)(19) of the 1940 Act).
(b) That Acquired Fund will have furnished to Acquiring Fund
(i) a statement of Acquired Funds net assets, with values
determined as provided in Section 4 of this Agreement,
together with a list of Investments, all as of the Valuation
Time, certified on Acquired Funds behalf by Acquired Funds
President (or any Vice President) and Treasurer (or any
Assistant or Associate Treasurer), and a certificate of both
officers, dated the Exchange Date, to the effect that as of
the Valuation Time and as of the Exchange Date there has been
no material adverse change in the financial position of
Acquired Fund since July 31, 2016, other than changes in the
Investments and other assets and properties since that date
or changes in the market value of the Investments and other
assets of Acquired Fund, changes due to net redemptions or
changes due to dividends paid or losses from operations; (ii)
a statement of the tax basis of each Investment transferred
by Acquired Fund to Acquiring Fund; and (iii) copies of all
relevant tax books and records.
(c) That Acquired Fund will have furnished to Acquiring Fund a
statement, dated the Exchange Date, signed on behalf of
Acquired Fund by Acquired Funds President (or any Vice
President) and Treasurer (or any Assistant or Associate
Treasurer) certifying that as of the Valuation Time and as of
the Exchange Date all representations and warranties of
Acquired Fund made in this Agreement are true and correct in
all material respects as if made at and as of such dates, and
that Acquired Fund has complied with all of the agreements
and satisfied all of the conditions on its part to be
performed or satisfied at or prior to each of such dates.
(d) That there is no material litigation pending with respect
to the matters contemplated by this Agreement.
(e) That Acquiring Fund will have received an opinion of Ropes
& Xxxx LLP, in form satisfactory to Acquiring Fund and dated
the Exchange Date, to the effect that (i) Acquired Fund is a
business trust duly established and validly existing under
the laws of The Commonwealth of Massachusetts, and, to the
knowledge of such counsel, is not required to qualify to do
business as a foreign association in any jurisdiction except
as may be required by state securities or blue sky laws, (ii)
this Agreement has been duly authorized, executed, and
delivered by Acquired Fund and, assuming that the
Registration Statement and the Prospectus comply with the
1933 Act, the 1934 Act and the 1940 Act and assuming due
authorization, execution and delivery of this Agreement by
Acquiring Fund, is a valid and binding obligation of Acquired
Fund, (iii) Acquired Fund has power to sell, assign, convey,
transfer and deliver the assets contemplated hereby and, upon
consummation of the transactions contemplated hereby in
accordance with the terms of this Agreement, Acquired Fund
will have duly sold, assigned, conveyed, transferred and
delivered such assets to Acquiring Fund, (iv) the execution
and delivery of this Agreement did not, and the consummation
of the transactions contemplated hereby will not, violate
Acquired Funds Agreement and Declaration of Trust, as
amended, or Bylaws or any provision of any agreement known to
such counsel to which Acquired Fund is a party or by which it
is bound, it being understood that with respect to investment
restrictions as contained in Acquired Funds Agreement and
Declaration of Trust, Bylaws, then-current prospectus or
statement of additional information or the Registration
Statement, such counsel may rely upon a certificate of an
officer of Acquired Fund whose responsibility it is to advise
Acquired Fund with respect to such matters, (v) no consent,
approval, authorization or order of any court or governmental
authority is required for the consummation by Acquired Fund
of the transactions contemplated hereby, except such as have
been obtained under the 1933 Act, the 1934 Act, the 1940 Act
and such as may be required under state securities or blue
sky laws and the H-S-R Act, and (vi) such other matters as
Acquiring Fund may reasonably deem necessary or desirable.
(f) That Acquiring Fund will have received an opinion of Ropes
& Xxxx LLP dated the Exchange Date (which opinion would be
based upon certain factual representations and customary
assumptions and subject to certain qualifications), in a form
reasonably satisfactory to each of Acquired Fund and
Acquiring Fund, substantially to the effect that, on the
basis of the existing provisions of the Code, Treasury
regulations promulgated thereunder, current administrative
rules and court decisions, generally for federal income tax
purposes: (i) the acquisition by Acquiring Fund of
substantially all of the assets of Acquired Fund solely in
exchange for Merger Shares and the assumption by Acquiring
Fund of liabilities of Acquired Fund followed by the
distribution by Acquired Fund to its shareholders of Merger
Shares in complete liquidation of Acquired Fund, all pursuant
to this Agreement, will constitute a reorganization within
the meaning of Section 368(a) of the Code and Acquired Fund
and Acquiring Fund will each be a party to a reorganization
within the meaning of Section 368(b) of the Code, (ii) under
Sections 361 and 357 of the Code, no gain or loss will be
recognized by Acquired Fund upon the transfer of its assets
to Acquiring Fund pursuant to this Agreement in exchange for
Merger Shares and the assumption of Acquired Funds
liabilities by Acquiring Fund or upon the distribution of
Merger Shares by Acquired Fund to its shareholders in
liquidation of Acquired Fund, except for (A) any gain or loss
recognized on (1) Section 1256 contracts as defined in
Section 1256(b) of the Code or (2) stock in a passive foreign
investment company as defined in Section 1297(a) of the Code,
and (B) any other gain or loss required to be recognized by
reason of the transactions contemplated by this Agreement (1)
as a result of the closing of the tax year of Acquired Fund,
(2) upon the termination of a position, or (3) upon the
transfer of an asset regardless of whether such a transfer
would otherwise be a nontaxable transaction under the Code,
(iii) under Section 354 of the Code, no gain or loss will be
recognized by shareholders of Acquired Fund upon the exchange
of their shares of Acquired Fund for Merger Shares, (iv)
under Section 358 of the Code, the aggregate tax basis of the
Merger Shares an Acquired Fund shareholder receives pursuant
to this Agreement will be the same as the aggregate tax basis
of the Acquired Fund shares exchanged therefor, (v) under
Section 1223(1) of the Code, an Acquired Fund shareholders
holding period for the Merger Shares received pursuant to
this Agreement will include the holding period for which such
shareholder held or is treated for federal income tax
purposes as having held the Acquired Fund shares exchanged
therefor, provided that, the shareholder held those Acquired
Fund shares as capital assets, (vi) under Section 1032 of the
Code, no gain or loss will be recognized by Acquiring Fund
upon the receipt of assets of Acquired Fund in exchange for
Merger Shares and the assumption by Acquiring Fund of the
liabilities of Acquired Fund, (vii) under Section 362(b) of
the Code, the tax basis in the hands of Acquiring Fund of the
assets of Acquired Fund transferred to Acquiring Fund
pursuant to this Agreement will be the same tax basis of such
assets in the hands of Acquired Fund immediately prior to the
transfer, adjusted for any gain or loss required to be
recognized as described in (ii) above, (viii) under Section
1223(2) of the Code, Acquiring Funds holding period for the
assets it receives from Acquired Fund pursuant to this
Agreement, other than certain assets with respect to which
gain or loss is required to be recognized as described in
(ii) above, will include the period during which such assets
were held or treated for federal income tax purposes as held
by Acquired Fund, and (ix) Acquiring Fund will succeed to and
take into account the items of Acquired Fund described in
Section 381(c) of the Code, subject to the conditions and
limitations specified in Sections 381, 382, 383 and 384 of
the Code and regulations thereunder.
(g) That the assets of Acquired Fund to be acquired by
Acquiring Fund will include no assets which Acquiring Fund,
by reason of charter limitations or of investment
restrictions disclosed in the Registration Statement in
effect on the Exchange Date, may not properly acquire.
(h) That the Registration Statement will have become effective
under the 1933 Act, and no stop order suspending such
effectiveness will have been instituted or, to the knowledge
of Acquiring Fund, threatened by the Commission.
(i) That Acquiring Fund will have received from the Commission,
any relevant state securities administrator and the
Department of Justice (the Department) such order or orders
as Ropes & Xxxx LLP deems reasonably necessary or desirable
under the 1933 Act, the 1934 Act, the 1940 Act and any
applicable state securities or blue sky laws in connection
with the transactions contemplated hereby, and that all such
orders will be in full force and effect.
(j) That all proceedings taken by Acquired Fund in connection
with the transactions contemplated by this Agreement and all
documents incidental thereto are satisfactory in form and
substance to Acquiring Fund and Ropes & Xxxx LLP.
(k) That, before the Exchange Date, Acquired Fund declares a
dividend or dividends which, together with all previous
distributions qualifying for the dividends-paid deduction,
has the effect of distributing to the shareholders of
Acquired Fund, in distributions qualifying for the dividends-
paid deduction, (i) all of the excess of (X) Acquired Funds
investment income excludable from gross income under Section
103 of the Code over (Y) Acquired Funds deductions disallowed
under Sections 265 and 171 of the Code, (ii) all of Acquired
Funds investment company taxable income (as defined in
Section 852 of the Code), and (iii) all of its net capital
gain realized after reduction by any capital loss carryover;
the amounts in (i), (ii) and (iii) shall in each case be
computed without regard to the dividends-paid deduction and
shall include amounts in respect of both (x) Acquired Funds
taxable year that will end on the Exchange Date and (y) any
prior taxable year of Acquired Fund, to the extent such
dividend or dividends are eligible to be treated as paid
during such prior year under Section 855(a) of the Code.
(l) That Acquired Funds custodian has delivered to Acquiring
Fund a certificate identifying all of the assets of Acquired
Fund held by such custodian as of the Valuation Time.
(m) That Acquired Funds transfer agent has provided to
Acquiring Fund (i) the originals or true copies of all of the
records of Acquired Fund in the possession of such transfer
agent as of the Exchange Date, (ii) a certificate setting
forth the number of shares of Acquired Fund outstanding as of
the Valuation Time, and (iii) the name and address of each
holder of record of any such shares and the number of shares
held of record by each such shareholder.
(n) That all of the issued and outstanding shares of beneficial
interest of Acquired Fund will have been offered for sale and
sold in conformity with all applicable state securities or
blue sky laws and, to the extent that any audit of the
records of Acquired Fund or its transfer agent by Acquiring
Fund or its agents will have revealed otherwise, either (i)
Acquired Fund will have taken all actions that in the opinion
of Acquiring Fund or its counsel are necessary to remedy any
prior failure on the part of Acquired Fund to have offered
for sale and sold such shares in conformity with such laws or
(ii) Acquired Fund shall have furnished (or caused to be
furnished) surety, or deposited (or caused to be deposited)
assets in escrow, for the benefit of Acquiring Fund in
amounts sufficient and upon terms satisfactory, in the
opinion of Acquiring Fund or its counsel, to indemnify
Acquiring Fund against any expense, loss, claim, damage or
liability whatsoever that may be asserted or threatened by
reason of such failure on the part of Acquired Fund to have
offered and sold such shares in conformity with such laws.
(o) That Acquired Fund will have executed and delivered to
Acquiring Fund an instrument of transfer dated as of the
Exchange Date pursuant to which Acquired Fund will assign,
transfer and convey all of the assets and other property to
Acquiring Fund at the Valuation Time in connection with the
transactions contemplated by this Agreement.
9. Conditions to Acquired Funds obligations.
The obligations of Acquired Fund hereunder shall be subject to
the following conditions:
(a) That this Agreement is adopted and the transactions
contemplated hereby are approved by the affirmative vote of
(i) at least a majority of the Trustees of Acquired Fund
(including a majority of those Trustees who are not
interested persons of Acquired Fund, as defined in Section
2(a)(19) of the 0000 Xxx) and (ii) at least a majority of the
Trustees of Acquiring Fund (including a majority of those
Trustees who are not interested persons of Acquiring Fund, as
defined in Section 2(a)(19) of the 1940 Act).
(b) That Acquiring Fund will have furnished to Acquired Fund a
statement of Acquiring Funds net assets, together with a list
of portfolio holdings with values determined as provided in
Section 4 of this Agreement, all as of the Valuation Time,
certified on behalf of Acquiring Fund by Acquiring Funds
President (or any Vice President) and Treasurer (or any
Assistant or Associate Treasurer), and a certificate of both
such officers, dated the Exchange Date, to the effect that as
of the Valuation Time and as of the Exchange Date there has
been no material adverse change in the financial position of
Acquiring Fund since July 31, 2016, other than changes in its
portfolio securities since that date, changes in the market
value of its portfolio securities, changes due to net
redemptions or changes due to dividends paid or losses from
operations.
(c) That Acquiring Fund will have executed and delivered to
Acquired Fund an Assumption of Liabilities dated as of the
Exchange Date pursuant to which Acquiring Fund will assume
all of the liabilities of Acquired Fund existing at the
Valuation Time in connection with the transactions
contemplated by this Agreement.
(d) That Acquiring Fund will have furnished to Acquired Fund a
statement, dated the Exchange Date, signed on behalf of
Acquiring Fund by Acquiring Funds President (or any Vice
President) and Treasurer (or any Assistant or Associate
Treasurer) certifying that as of the Valuation Time and as of
the Exchange Date all representations and warranties of
Acquiring Fund made in this Agreement are true and correct in
all material respects as if made at and as of such dates, and
that Acquiring Fund has complied with all of the agreements
and satisfied all of the conditions on its part to be
performed or satisfied at or prior to each of such dates.
(e) That there is no material litigation pending or threatened
with respect to the matters contemplated by this Agreement.
(f) That Acquired Fund will have received an opinion of Ropes &
Xxxx LLP, in form satisfactory to Acquired Fund and dated the
Exchange Date, to the effect that (i) Acquiring Fund is a
series of the Trust, a business trust duly established and
validly existing in conformity with the laws of The
Commonwealth of Massachusetts, and, to the knowledge of such
counsel, is not required to qualify to do business as a
foreign association in any jurisdiction except as may be
required by state securities or blue sky laws, (ii) this
Agreement has been duly authorized, executed and delivered by
the Trust, on behalf of Acquiring Fund, and, assuming that
the Prospectus and the Registration Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and assuming due
authorization, execution and delivery of this Agreement by
Acquired Fund, is a valid and binding obligation of Acquiring
Fund, (iii) the Merger Shares to be delivered to Acquired
Fund as provided for by this Agreement are duly authorized
and upon such delivery will be validly issued and will be
fully paid and nonassessable by Acquiring Fund and no
shareholder of Acquiring Fund has any preemptive right to
subscription or purchase in respect thereof, (iv) the
execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated hereby will
not, violate the Trusts Agreement and Declaration of Trust,
as amended, or Bylaws, or any provision of any agreement
known to such counsel to which Acquiring Fund is a party or
by which it is bound, it being understood that with respect
to investment restrictions as contained in the Trusts
Agreement and Declaration of Trust, Bylaws, then current
prospectus or statement of additional information or the
Registration Statement, such counsel may rely upon a
certificate of an officer of Acquiring Fund whose
responsibility it is to advise Acquiring Fund with respect to
such matters, (v) no consent, approval, authorization or
order of any court or governmental authority is required for
the consummation by Acquiring Fund of the transactions
contemplated herein, except such as have been obtained under
the 1933 Act, the 1934 Act and the 1940 Act and such as may
be required under state securities or blue sky laws and the
H-S-R Act, and (vi) the Registration Statement has become
effective under the 1933 Act, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the 1933 Act.
(g) That Acquired Fund will have received an opinion of Ropes &
Xxxx LLP dated the Exchange Date (which opinion would be
based upon certain factual representations and customary
assumptions and subject to certain qualifications), in a form
reasonably satisfactory to each of Acquired Fund and
Acquiring Fund, substantially to the effect that, on the
basis of the existing provisions of the Code, Treasury
regulations promulgated thereunder, current administrative
rules and court decisions, generally for federal income tax
purposes: (i) the acquisition by Acquiring Fund of
substantially all of the assets of Acquired Fund solely in
exchange for Merger Shares and the assumption by Acquiring
Fund of liabilities of Acquired Fund followed by the
distribution by Acquired Fund to its shareholders of Merger
Shares in complete liquidation of Acquired Fund, all pursuant
to this Agreement, will constitute a reorganization within
the meaning of Section 368(a) of the Code and Acquired Fund
and Acquiring Fund will each be a party to a reorganization
within the meaning of Section 368(b) of the Code, (ii) under
Sections 361 and 357 of the Code, no gain or loss will be
recognized by Acquired Fund upon the transfer of its assets
to Acquiring Fund pursuant to this Agreement in exchange for
Merger Shares and the assumption of Acquired Funds
liabilities by Acquiring Fund or upon the distribution of
Merger Shares by Acquired Fund to its shareholders in
liquidation of Acquired Fund, except for (A) any gain or loss
recognized on (1) Section 1256 contracts as defined in
Section 1256(b) of the Code or (2) stock in a passive foreign
investment company as defined in Section 1297(a) of the Code,
and (B) any other gain or loss required to be recognized by
reason of the transactions contemplated by this Agreement (1)
as a result of the closing of the tax year of Acquired Fund,
(2) upon the termination of a position, or (3) upon the
transfer of an asset regardless of whether such a transfer
would otherwise be a nontaxable transaction under the Code,
(iii) under Section 354 of the Code, no gain or loss will be
recognized by shareholders of Acquired Fund upon the exchange
of their shares of Acquired Fund for Merger Shares, (iv)
under Section 358 of the Code, the aggregate tax basis of the
Merger Shares an Acquired Fund shareholder receives pursuant
to this Agreement will be the same as the aggregate tax basis
of the Acquired Fund shares exchanged therefor, (v) under
Section 1223(1) of the Code, an Acquired Fund shareholders
holding period for the Merger Shares received pursuant to
this Agreement will include the holding period for which such
shareholder held or is treated for federal income tax
purposes as having held the Acquired Fund shares exchanged
therefor, provided that, the shareholder held those Acquired
Fund shares as capital assets, (vi) under Section 1032 of the
Code, no gain or loss will be recognized by Acquiring Fund
upon the receipt of assets of Acquired Fund in exchange for
Merger Shares and the assumption by Acquiring Fund of the
liabilities of Acquired Fund, (vii) under Section 362(b) of
the Code, the tax basis in the hands of Acquiring Fund of the
assets of Acquired Fund transferred to Acquiring Fund
pursuant to this Agreement will be the same tax basis of such
assets in the hands of Acquired Fund immediately prior to the
transfer, adjusted for any gain or loss required to be
recognized as described in (ii) above, (viii) under Section
1223(2) of the Code, Acquiring Funds holding period for the
assets it receives from Acquired Fund pursuant to this
Agreement, other than certain assets with respect to which
gain or loss is required to be recognized as described in
(ii) above, will include the period during which such assets
were held or treated for federal income tax purposes as held
by Acquired Fund, and (ix) Acquiring Fund will succeed to and
take into account the items of Acquired Fund described in
Section 381(c) of the Code, subject to the conditions and
limitations specified in Sections 381, 382, 383 and 384 of
the Code and regulations thereunder.
(h) That all proceedings taken by or on behalf of Acquiring
Fund in connection with the transactions contemplated by this
Agreement and all documents incidental thereto will be
satisfactory in form and substance to Acquired Fund and Ropes
& Xxxx LLP.
(i) That the Registration Statement is effective under the 1933
Act, and no stop order suspending such effectiveness will
have been instituted or, to the knowledge of Acquiring Fund,
threatened by the Commission.
(j) That Acquired Fund shall have received from the Commission,
any relevant state securities administrator and the
Department such order or orders as Ropes & Xxxx LLP deems
reasonably necessary or desirable under the 1933 Act, the
1934 Act, the 1940 Act and any applicable state securities or
blue sky laws in connection with the transactions
contemplated hereby, and that all such orders shall be in
full force and effect.
10. Indemnification.
(a) Acquired Fund agrees to indemnify and hold harmless, out of
the assets of Acquired Fund but no other assets, Acquiring
Fund, its Trustees and its officers (for purposes of this
subparagraph, the Indemnified Parties) against any and all
expenses, losses, claims, damages and liabilities at any time
imposed upon or reasonably incurred by any one or more of the
Indemnified Parties in connection with, arising out of, or
resulting from any claim, action, suit or proceeding in which
any one or more of the Indemnified Parties may be involved or
with which any one or more of the Indemnified Parties may be
threatened by reason of any untrue statement or alleged
untrue statement of a material fact relating to Acquired Fund
contained in the Registration Statement, the Prospectus, or
any amendment or supplement to any of the foregoing, or
arising out of or based upon the omission or alleged omission
to state in any of the foregoing a material fact relating to
Acquired Fund required to be stated therein or necessary to
make the statements relating to Acquired Fund therein not
misleading, including, without limitation, any amounts paid
by any one or more of the Indemnified Parties in a reasonable
compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding
made with the consent of Acquired Fund. The Indemnified
Parties will notify Acquired Fund in writing within ten days
after the receipt by any one or more of the Indemnified
Parties of any notice of legal process or any suit brought
against or claim made against such Indemnified Party as to
any matters covered by this Section 10(a). Acquired Fund
shall be entitled to participate at its own expense in the
defense of any claim, action, suit or proceeding covered by
this Section 10(a), or, if it so elects, to assume at its
expense by counsel satisfactory to the Indemnified Parties
the defense of any such claim, action, suit or proceeding,
and if Acquired Fund elects to assume such defense, the
Indemnified Parties shall be entitled to participate in the
defense of any such claim, action, suit or proceeding at
their expense. Acquired Funds obligation under this Section
10(a) to indemnify and hold harmless the Indemnified Parties
constitutes a guarantee of payment so that Acquired Fund will
pay in the first instance any expenses, losses, claims,
damages and liabilities required to be paid by it under this
Section 10(a) without the necessity of the Indemnified
Parties first paying the same.
(b) Acquiring Fund agrees to indemnify and hold harmless, out
of the assets of Acquiring Fund but no other assets, Acquired
Fund, its Trustees and its officers (for purposes of this
subparagraph, the Indemnified Parties) against any and all
expenses, losses, claims, damages and liabilities at any time
imposed upon or reasonably incurred by any one or more of the
Indemnified Parties in connection with, arising out of, or
resulting from any claim, action, suit or proceeding in which
any one or more of the Indemnified Parties may be involved or
with which any one or more of the Indemnified Parties may be
threatened by reason of any untrue statement or alleged
untrue statement of a material fact relating to Acquiring
Fund contained in the Registration Statement, the Prospectus,
or any amendment or supplement to any of the foregoing, or
arising out of, or based upon, the omission or alleged
omission to state in any of the foregoing a material fact
relating to Acquiring Fund required to be stated therein or
necessary to make the statements relating to Acquiring Fund
therein not misleading, including without limitation any
amounts paid by any one or more of the Indemnified Parties in
a reasonable compromise or settlement of any such claim,
action, suit or proceeding, or threatened claim, action, suit
or proceeding made with the consent of Acquiring Fund. The
Indemnified Parties will notify Acquiring Fund in writing
within ten days after the receipt by any one or more of the
Indemnified Parties of any notice of legal process or any
suit brought against or claim made against such Indemnified
Party as to any matters covered by this Section 10(b).
Acquiring Fund shall be entitled to participate at its own
expense in the defense of any claim, action, suit or
proceeding covered by this Section 10(b), or, if it so
elects, to assume at its expense by counsel satisfactory to
the Indemnified Parties the defense of any such claim,
action, suit or proceeding, and, if Acquiring Fund elects to
assume such defense, the Indemnified Parties shall be
entitled to participate in the defense of any such claim,
action, suit or proceeding at their own expense. Acquiring
Funds obligation under this Section 10(b) to indemnify and
hold harmless the Indemnified Parties constitutes a guarantee
of payment so that Acquiring Fund will pay in the first
instance any expenses, losses, claims, damages and
liabilities required to be paid by it under this Section
10(b) without the necessity of the Indemnified Parties first
paying the same.
11. No broker, etc.
Each of Acquired Fund and Acquiring Fund represents that there
is no person who has dealt with it who by reason of such
dealings is entitled to any brokers or is Agreement.
12. Termination.
Acquired Fund and the Trust, on behalf of the Acquiring Fund,
may, by mutual consent of their Trustees, terminate this
Agreement, and Acquired Fund or Acquiring Fund, after
consultation with counsel and by consent of their Trustees or an
officer authorized by such Trustees, may waive any condition to
their respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially
completed by December 31, 2016, this Agreement shall
automatically terminate on that date unless a later date is
agreed to by Acquired Fund and the Trust, on behalf of the
Acquiring Fund.
13. Covenants, etc. deemed material.
All covenants, agreements, representations and warranties made
under this Agreement and any certificates delivered pursuant to
this Agreement shall be deemed to have been material and relied
upon by each of the parties, notwithstanding any investigation
made by them or on their behalf.
14. Sole agreement; amendments.
This Agreement supersedes all previous correspondence and oral
communications between the parties regarding the subject matter
hereof, constitutes the only understanding with respect to such
subject matter, may not be changed except by a letter of
agreement signed by each party hereto, and shall be construed in
accordance with and governed by the laws of The Commonwealth of
Massachusetts.
15. Agreement and declaration of trust.
Copies of the Agreements and Declarations of Trust, as amended,
of Acquired Fund and the Trust are on file with the Secretary of
State of the Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed by the Trustees or
officers of each trust, respectively, as Trustees or officers
and not individually and that the obligations of this instrument
are not binding upon any of the Trustees, officers or
shareholders of Acquired Fund or Acquiring Fund individually but
are binding only upon the assets and property of Acquired Fund
and Acquiring Fund, respectively.
This Agreement may be executed in any number of counterparts,
each of which, when executed and delivered, shall be deemed to
be an original.
XXXXXX INVESTMENT FUNDS, on behalf of its XXXXXX
GROWTH OPPORTUNITIES FUND series
By: /s/ Xxxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Executive Vice President, Principal Executive
Officer and Compliance Liaison
XXXXXX VOYAGER FUND
By: /s/ Xxxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Executive Vice President, Principal Executive
Officer and Compliance Liaison
55669803_10
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