AGREEMENT & PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN (the "Agreement") is made as of
September 3, 1996, by and between: The Xxxxxxx Covenant Fund
(hereinafter referred to as "LCF"), an Indiana Business Trust;
Xxxxxxx Holdings Asset Management, Inc. (hereinafter referred to
as "Xxxxxxx"), a New York corporation; The Vintage Funds
(hereinafter referred to as "Vintage"), an Indiana Business Trust
on behalf of the Fiduciary Value Fund (hereinafter referred to as
"Portfolio"), a series and sub-trust of Vintage; and Vintage
Advisers, Inc. (hereinafter referred to as "Advisers"), an
Indiana corporation which serves as the investment adviser to the
Portfolio.
WITNESSETH:
WHEREAS, this Agreement is intended to be and is adopted as
a "plan of reorganization", within the meaning of Treasury Reg.
Sec. 1.368-2 (g), for a reorganization under Section 368 (a) (1)
of the Internal Revenue Code of 1986, as amended (the "Code");
and
WHEREAS, the reorganization (the "Reorganization") will
consist of the transfer to the Portfolio of all of the assets of
LCF in exchange for the assumption by Portfolio of all the stated
liabilities of LCF and the issuance by Portfolio of shares of
beneficial interest, without par value, (the "Portfolio Shares"),
to be distributed pro rata, after the Closing Date hereinafter
defined, to the shareholders of LCF in complete liquidation and
dissolution of LCF as provided for herein, all upon the terms and
conditions hereinafter set forth in this Agreement; and
WHEREAS, it is intended that the transactions contemplated
herein shall qualify as a tax-free reorganization under Section
368(a) (1) (D) of the Code; and
WHEREAS, the Board of Trustees of Vintage, on behalf of the
Portfolio, and the Board of Trustees of LCF, each a registered
open-end management investment company, deem it advisable that
the parties enter into this Agreement, and that this Agreement
and the transactions contemplated herein are in the best
interests of the LCF and the Portfolio shareholders; and
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements hereinafter set forth and herein
contained, the parties hereto covenant and agree as follows:
1.0 The Reorganization and Liquidation of LCF.
On the Closing Date (as hereinafter defined), Portfolio will
issue to LCF the number of Portfolio Shares, taken at their then
net asset value, having an aggregate net asset value equal to the
aggregate value of the net assets of LCF, and shall provide
evidence satisfactory to LCF that Portfolio has credited such
Portfolio Shares on the books of Portfolio to the account of LCF.
The aggregate value of the net assets of LCF and Portfolio shall
be determined in accordance with their then currently effective
registration statements as of the close of the New York Stock
Exchange on the Valuation Date, using consistently applied
accounting principles, as approved and agreed to by officers of
LCF and Portfolio.
1.1 Subject to the terms and conditions herein set forth
and on the basis of the representations and warranties contained
herein, on the Closing Date (as hereinafter defined), LCF will
assign, deliver and otherwise transfer its assets as set forth in
paragraph 1.2 (the "LCF Assets") to Portfolio, and Portfolio
will in exchange therefore, assume all the stated LCF liabilities
determined as set forth in paragraph 1.3 and deliver to LCF the
number of Portfolio Shares, including fractional Portfolio
Shares, determined by dividing the value of the LCF Assets, net
of such stated liabilities, computed in the manner and as of the
time and date set forth in paragraph 2.1, by the net asset value
of one full Portfolio Share, computed in the manner and as of the
time and date set forth in paragraph 2.2 herein. Such
transactions shall take place at the closing provided for in
paragraph 3.1 (the "Closing").
Based on the respective representations, warranties, and
agreements, and subject to the terms and conditions contained
herein, LCF agrees to transfer to Portfolio and Portfolio agrees
to accept from LCF, all of the assets of LCF on the Closing Date
in exchange for the assumption by Portfolio of all of the stated
liabilities of LCF shown on the list to be delivered to Portfolio
pursuant to paragraph 1.3 and the issuance of the number of
Portfolio Shares provided in Section 2. Portfolio will assume
only those liabilities shown on such financial statements and
shall not assume any others, whether absolute or contingent,
known or unknown, accrued or unaccrued. Such Portfolio Shares
subsequently shall be distributed pro rata to the shareholders of
LCF in complete liquidation and dissolution of LCF and in
exchange for all of the outstanding shares of beneficial
interest, without par value, of LCF (the "LCF Shares"). LCF
shall not issue, sell or transfer any LCF Shares after the
Closing Date, and only redemption requests received by LCF in
proper form no later than seven days before the Closing Date
shall be fulfilled by LCF. Redemption requests received by LCF
thereafter shall be treated as requests for redemption of those
Portfolio Shares allocable to the shareholder in question as
provided in Section 1.5 of this Agreement.
1.2 (a) The LCF Assets shall include all property,
including without limitation, all cash, cash equivalents,
securities and dividends and interest receivable owned by LCF,
and any deferred or prepaid expenses shown as an asset on LCF's
books on the Closing Date;
(b) Subsequent to the execution of this Agreement and
prior to the Closing Date, LCF shall deliver to Portfolio a list
setting forth the assets to be assigned, delivered and
transferred to Portfolio, including the securities then owned by
LCF and the respective Federal income tax bases (on an identified
cost basis)
thereof, and the liabilities to be assumed by Portfolio pursuant
to this Agreement;
1.3 (a) LCF will endeavor to discharge all of it
liabilities and obligations when and as due prior to the Closing
Date;
(b) On the Closing Date, Portfolio will assume all
stated liabilities, expenses, costs, charges and reserves
reflected on an unaudited Statement of Assets and Liabilities
(the "Statement of Assets and Liabilities") of LCF, prepared by
the Treasurer of LCF, and agreed to by the parties as of the
Valuation Date, and prepared in conformity with generally
accepted accounting principles and consistently applied from the
prior audited period. Said Statement of Assets and Liabilities
shall be attached hereto as Schedule 1.3(b);
(c) Portfolio shall only assume the liabilities that
are listed and included as part of the LCF Statement of Assets
and Liabilities. Portfolio shall not be responsible for nor
shall it assume any liabilities which are not included on the
aforementioned LCF Statement of Assets and Liabilities.
(d) After the Closing Date, any refunds relating to
expenditures paid by LCF or Xxxxxxx shall inure to the benefit of
Portfolio, except for those otherwise agreed between the parties
and attached hereto as Schedule 1.3 (d);
(e) Any deferred organizational costs and/or any
prepaid filing and registration fees of LCF and/or Xxxxxxx shall
be 100% expensed at or prior to the Closing Date along with any
known additional fees and/or expenses due and payable for the
unwinding of LCF's activities in the states in which LCF was
registered; and
(f) All receivables due LCF from Xxxxxxx shall be paid
in full prior to Closing.
1.4 In order for LCF to comply with Section 852 (a) (1) of
the Code and to avoid having any investment company taxable
income or net capital gain (as defined in Sections 852 (b) (2)
and 1222 (11) of the Code, respectively) in the short taxable
year ending with its liquidation, LCF will, on or before the
Closing Date, (a) declare a dividend in an amount large enough so
that it will have declared dividends of all of its investment
company taxable income and net capital gain, if any, for such
taxable year (determined without regard to any deduction for
dividends paid) and (b) distribute such dividend in shares or
cash, as applicable and provided for in LCF's currently effective
registration statement.
1.5 As soon as practicable after the Closing Date, (a)
LCF shall distribute on a pro rata basis to the shareholders of
record of LCF at the close of business on the Valuation Date in
exchange for all of the outstanding LCF Shares, (each shareholder
of LCF being entitled to receive that proportion of the Portfolio
Shares to be received by LCF that the number of LCF Shares owned
by each such shareholder bears to the number of outstanding LCF
Shares) and (b) LCF shall be liquidated and dissolved in
accordance with applicable law and its Declaration of Trust.
Upon liquidation, all issued and outstanding LCF Shares will be
canceled on LCF's books and LCF shareholders will have no further
rights as such shareholders. Portfolio will not issue
certificates representing Portfolio Shares in connection with
such exchange.
For purpose of distribution of the Portfolio Shares to
shareholders of LCF, Portfolio shall credit on the books of
Portfolio an appropriate number of Portfolio Shares to the
account of each shareholder of LCF, and shall provide evidence
satisfactory to LCF that such Portfolio Shares have been so
credited. After the Closing Date, each outstanding certificate
which, prior to the Closing Date, represented LCF Shares, shall
be deemed void. Portfolio will pay the registration or
qualification fees as are necessary under applicable securities
laws to qualify the Portfolio Shares to be issued inconnection
with this Agreement.
1.6 After the Closing, LCF shall not conduct any business
except in connection with the winding up of its affairs and shall
file at no expense to Portfolio or Advisers, or make provision
for the filing of, all reports it is required by law to file.
Xxxxxxx and LCF shall prepare and cause to be filed, at no
expense to Portfolio or Advisers, the final 1120 RIC for LCF,
which form shall make the proper election of tax-free
reorganization as approved by and coordinated with Portfolio and
Vintage.
1.7 Copies of all books and records maintained on behalf of
LCF in connection with its obligations under the Investment
Company Act of 1940, as amended, (the "1940 Act"), the Code,
state blue sky laws or otherwise in connection with this
Agreement will promptly after the Closing be delivered to
officers of Portfolio or their designee and Portfolio or its
designee shall comply with applicable record retention
requirements to which LCF is subject under the 0000 Xxx.
1.8 Any effective insurance policies for LCF, and any other
LCF insurance policies required under the law to effect the
transactions contemplated herein, shall be maintained or acquired
and shall be in full force and effect as of the Closing Date.
1.9 At Closing, or as soon as practicable thereafter under
the law, Portfolio shall change its name from the Fiduciary Value
Fund to the Xxxxxxx Fund, or such other name as may be mutually
agreed upon between the parties. Portfolio and Vintage agree to
take all requisite actions necessary to effect such name change,
including but not limited to the amendment of its Declaration of
Trust.
2.0 The Calculation of Net Asset Value.
2.1 The value of the LCF Assets shall be the value of such
assets computed as of 4:00 p.m. on the Friday immediately
following the satisfaction of the condition set forth in
paragraph 8.1, or as otherwise mutually agreed upon in writing by
the parties (such time and date being hereinafter called the
"Valuation Date"), using the valuation procedures set forth in
paragraph 1.0.
2.2 The net asset value of a Portfolio Share shall be the
net asset value per share computed on the Valuation Date, using
the valuation procedures set forth in Paragraph 1.0.
2.3 The number of Portfolio Shares (including fraction
thereof, if any) to be issued hereunder shall be determined by
dividing the value of the LCF Assets, net of the liabilities
assumed by Portfolio pursuant to paragraph 1.1, determined in
accordance with paragraph 2.1, by the net asset value of a
Portfolio Share determined in accordance with paragraph 2.2.
2.4 All computations of value shall be made by Unified
Advisers, Inc. Portfolio shall cause Unified Advisers, Inc. to
deliver a copy of its valuation report at Closing.
3.0 Closing and Closing Date.
3.1 The closing date (the "Closing Date") shall be the next
business day following the Valuation Date. All acts taking place
at the Closing shall be deemed to take place simultaneously as of
9:00 a.m. Eastern time on the Closing Date unless otherwise
agreed by the parties. The Closing shall be held at the offices
of the transfer agent, Unified Advisers, Inc., 000 Xxxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx.
3.2 LCF securities held by LCF and represented by a
certificate or written instrument shall be made available by it
or on its behalf to Star Bank, N.A., the custodian bank for
Portfolio (the "Portfolio Custodian") for examination no later
than five business days preceding the Valuation Date. Such LCF
securities (together with any cash or other assets) shall be
delivered by LCF to the Portfolio Custodian for the account of
Portfolio on or before the Closing Date in conformity with
applicable custody provisions under the 1940 Act and duly
endorsed in proper form for transfer in such condition as to
constitute good delivery thereof in accordance with the custom of
brokers. LCF securities and instruments deposited with a
securities depository, as defined in Rule 17f-4 under the 1940
Act, shall be delivered on or before the Closing Date by book
entry in accordance with customary practices of such depositories
and the Portfolio Custodian. The cash delivered shall be in the
form of a Federal Funds wire payable to the order of "Star Bank,
NA, Custodian for the Fiduciary Value Fund".
If on the Closing Date LCF is unable to make good delivery
pursuant to this Section to the Portfolio Custodian of any of
LCF's portfolio securities because such securities have not yet
been delivered to LCF's custodian by its brokers or by the
transfer agent for such securities, then the delivery requirement
of this Section with respect to such securities shall be waived,
and LCF shall deliver to the Portfolio Custodian on or by said
Closing Date with respect to said undelivered securities executed
copies of an agreement or assignment in a form satisfactory to
the Portfolio Custodian, together with such other documents
including brokers' confirmations, as may be reasonably requested
by Portfolio.
3.3 In the event that on the Valuation Date (a) the New
York Stock Exchange shall be closed to trading or trading thereon
shall be restricted or (b) trading or the reporting of trading on
such Exchange or elsewhere shall be disrupted so that, in the
judgment of both Portfolio and LCF, accurate appraisal of the
value of the net assets of Portfolio or LCF is impracticable,
the Valuation Date shall be postponed until the first business
day after the day when trading shall have been fully resumed
without restriction or disruption and reporting shall have been
restored.
3.4 LCF shall deliver to Portfolio or its designee (a) at
the Closing, a list, certified by LCF's Secretary, of the names,
addresses and taxpayer identification numbers of LCF's
shareholders and the number of outstanding LCF Shares owned by
each such shareholder, all as of the Valuation Date, and (b) as
soon as practicable after the Closing, all original documentation
(including Internal Revenue Service forms, certificates,
certifications and correspondence) relating to the LCF
shareholders' taxpayer identification numbers and their liability
for or exemption from back-up withholding. Portfolio shall issue
and deliver to LCF a confirmation evidencing delivery of the
Portfolio Shares to be credited on the Closing Date to the LCF
shareholders. At the Closing, each party shall deliver to the
other such bills of sale, assignments, assumption agreements,
receipts or other documentation as such other party or its
counsel may reasonably request to effect the consummation of the
transactions contemplated by this Agreement.
4.0 Covenants of Portfolio, Xxxxxxx and LCF.
4.1 Portfolio and LCF each will operate its business in the
ordinary course between the date hereof and the Closing Date, it
being understood that such ordinary course of business will
include customary dividends and other distributions.
4.2 LCF, or Xxxxxxx on behalf of LCF, at no expense to
Portfolio or Advisers, will assist Portfolio in the preparation
of the registration statement on Form N-14 under the Securities
Act of 1933, as amended (the "1933 Act") relating to the
Portfolio Shares to be exchanged pursuant to paragraph 1.0 and
including the Proxy Materials described in paragraph 4.3 below
(the "Registration Statement"), and Portfolio shall then file the
Registration Statement with the Securities and Exchange
Commission (the "Commission") pursuant to filing requirements and
deadlines. Both LCF and Portfolio agree to provide the other
with such other information and documentation as are reasonably
necessary for the preparation of the Registration Statement. The
legal fees and expenses of Xxxxx, Cummins & Xxxxx, Co., L.P.A. in
preparing the Registration Statement shall be borne by Xxxxxxx up
to $25,000.
4.3 LCF will call a meeting of its shareholders to consider
and act upon this Agreement and to take all other actions
necessary to obtain approval of the transactions contemplated
herein. LCF will assist Portfolio in the preparation of the
notice of the meeting, form of proxy and proxy statement
(collectively "Proxy Materials") to be used in connection with
such meeting) it being understood that Portfolio will furnish a
currently effective prospectus relating to the Portfolio for
inclusion in the Proxy Materials and with such other information
relating to Portfolio as is reasonably necessary for the
preparation of the Proxy Materials, including the currently
effective registration statement of the Portfolio.
4.4 Prior to the Closing Date, LCF will assist Portfolio in
obtaining such information as Portfolio reasonably requests
concerning the beneficial ownership of the LCF Shares.
4.5 Subject to the provisions in this Agreement, Portfolio
and LCF will each take, or cause to be taken, all actions, 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.
4.6 As promptly as practicable, but in any case within
sixty (60) calendar days after the Closing Date, LCF shall
furnish, or cause to be furnished, to Portfolio such information
as Portfolio reasonably requests to enable Portfolio to determine
LCF's earnings and profits for Federal income tax purposes that
will be carried over to Portfolio pursuant to Section 381 of the
Code.
4.7 As soon after the Closing Date as is reasonably
practicable, LCF (a) shall prepare and file all Federal and other
tax returns and reports of LCF required by law to be filed with
respect to all periods ending on or before the Closing Date but
not theretofore filed and (b) shall submit to Portfolio for
payment all Federal and other taxes shown as due thereon which
were not required to be paid on or before the Closing Date,
provision for the payment of which was made as of the Closing
Date on the unaudited LCF Statement of Assets and Liabilities
referred to in paragraph 1.2.
4.8 Portfolio agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act,
the 1940 Act and such of the state securities laws as it may deem
appropriate in order to continue its operations after the Closing
Date.
4.9 The parties agree that Xxxxxxx shall be retained to
provide certain consulting services to Portfolio's sub-adviser,
Fiduciary Counsel (the "Sub-Adviser") pursuant to and more fully
described in a consulting agreement, (the"Consulting Agreement"),
the material terms of which are described in Schedule 4.9
attached hereto. The Consulting Agreement will define the
specific nature of the services and duties to be provided by
Xxxxxxx, which include, among others, Xxxxxxx'x consulting
arrangement with the Sub-Adviser and the preparation and delivery
by Xxxxxxx to Sub-Adviser of Xxxxxxx'srecommended list of
socially conscious companies, investment in which would be
consistent with the Portfolio prospectus and statement of
additional information. The parties agree that Portfolio's
registration statement will be modified to reflect that Portfolio
will be a "socially conscious" fund.
5.0 Representations and Warranties of Portfolio, LCF and
Xxxxxxx.
5.1 Portfolio represents and warrants to LCF as follows:
(a) Portfolio is a series and sub-trust of a business
trust validly existing and in good standing under the laws of the
State of Indiana and has the power and authority to own its
properties and to carry on its business as it is now conducted.
The beneficial interest in Portfolio is divided into an unlimited
number of transferable shares, without par value.
(b) . . Portfolio is, or at the Closing Date will be,
a duly registered, open-end management investment company, and
its registration with the Commission as an investment company
under the 1940 Act and the registration of its shares under the
1933 Act are, or at the Closing Date will be, in full force and
effect;
(c) . . All of the issued and outstanding Portfolio
Shares have been offered and sold in compliance in all material
respects with applicable registration requirements of the 1933
Act and state securities laws. Portfolio Shares are and will at
the Closing be registered in all jurisdictions in which they are
and will at the Closing be required to be registered under state
securities laws and other laws, and said registrations, including
any periodic reports or supplemental filings, are and will at the
Closing be complete and current, all fees required to be paid
have been and shall be paid, and Portfolio is not and at the
Closing will not be subject to any stop order and is and will be
fully qualified to sell Portfolio Shares in each state in which
its shares have been registered;
(d) .The currently effective prospectus and statement
of additional information of Portfolio conform in all material
respects to the applicable requirements of the 1933 Act and the
1940 Act and the regulations thereunder and do not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(e) At the Closing Date, Portfolio will have title to
its assets, subject to no liens, security interests or other
encumbrances;
(f) No litigation or administrative proceeding or
investigation of or before any court or governmental body is
presently pending or to its knowledge threatened against
Portfolio or any of its properties or assets, except as
previously disclosed in writing to LCF. Portfolio 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
which materially and adversely affects its business or its
ability to consummate the transactions contemplated herein;
(g) All issued and outstanding Portfolio Shares are,
and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable with no personal
liability attaching to ownership thereof; the Portfolio Shares
to be issued and delivered to LCF for the accounts of the LCF
shareholders, pursuant to the terms of this Agreement, will at
the Closing Date have been duly authorized and, when issued and
delivered, will be validly issued Portfolio Shares, and will be
fully paid and non-assessable, and no shareholder of Portfolio
will have any preemptive right or right of subscription or
purchase in respect thereof; Portfolio does not have outstanding
any options, warrants or other rights to subscribe for or
purchase any of its shares, nor is there outstanding any security
convertible into any of its shares;
(h) Portfolio has the power to enter into this
Agreement and carry out its obligations hereunder. The
execution, delivery and performance of this Agreement have been
duly authorized by all necessary actions on the part of Portfolio
under its Declaration of Trust and Code of Regulations, and this
Agreement constitutes a valid and binding obligation of Portfolio
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 financial statements of Portfolio as of and
for the fiscal year ended September 30, 1995, examined by Price
Waterhouse, Portfolio's independent accountants, and Semi-Annual
Report of Portfolio as of March 31, 1996 (copies of which have
been or will be furnished to LCF) fairly represent, in all
material respects, Portfolio's financial condition as of their
respective dates indicated, results of operations for such
periods and changes in net assets for such periods in conformity
with generally accepted accounting principles applied on a
consistent basis, and as of such dates there were no known
liabilities of Portfolio (contingent or otherwise) not disclosed
therein that would be required in conformity with generally
accepted accounting principles to be disclosed therein;
(j) Since the date of Portfolio's most recent audited
financial statements, there has not been any material adverse
change in Portfolio's financial condition, assets, liabilities or
business, other than changes occurring in the ordinary course of
business, or any occurrence by Portfolio of indebtedness maturing
more than one year from the date such indebtedness was incurred,
except as otherwise disclosed in writing to LCF prior to the
Closing Date. For the purposes of this subparagraph (j) neither
a decline in Portfolio's net asset value per share nor a decrease
in Portfolio's size due to ordinary redemption activity shall
constitute a material adverse change;
(k) The information furnished or to be furnished by
Portfolio for use in registrations, registration statements,
proxy materials and other documents which may be necessary in
connection with the transactions contemplated hereby shall be
accurate and complete in all material respects and shall comply
in all material respects with Federal securities and other laws
and regulations applicable thereto. Any information furnished by
Portfolio for use in the Registration Statement or in any other
manner that may be necessary in connection with the transactions
contemplated herein shall be accurate and complete and shall
comply in all material respects with applicable Federal
securities and other laws and all regulations thereunder;
(l) The Registration Statement and the proxy materials
(only insofar as they relate to Portfolio, Vintage, Advisers and
any of its affiliates) will, on the effective date of the
Registration Statement, at the time of the meeting of LCF's
shareholders and on the Closing Date, 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, in light of the circumstances under which such
statements were made, not materially misleading;
(m) Portfolio has filed all tax returns required to be
filed and has no liability for any unpaid taxes. Portfolio has
made a proper election to be treated as a regulated investment
company under Subchapter M of the Code and has qualified to be
treated as a regulated investment company during all previous
taxable years;
(n) Portfolio is not in violation of, and the
execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not,
violate Portfolio's Declaration of Trust or By-Laws or any
provision of any agreement to which Portfolio is a party or by
which it is bound, or result in the acceleration of any
obligation or the imposition of any penalty under any agreement,
judgment or decree to which Portfolio is a party or by which it
is bound. Portfolio has not material contracts or other
commitments (other than this Agreement) that will be terminated
with liability to it prior to or on the Closing Date;
(o) Portfolio has maintained or has caused to be
maintained on its behalf all books and accounts as required of a
registered investment company in compliance with the requirements
of Section 31 of the 1940 Act and the Rules thereunder. The
books and records of Portfolio made available to LCF and/or its
counsel, accurately summarize the accounting data represented and
contain no material omissions with respect to the business and
operation of Portfolio;
(p) There are no unresolved or outstanding shareholder
claims or inquiries related to Portfolio and there will be no
such claims or inquiries as of the Closing Date other than as
disclosed by Portfolio in writing to LCF prior to the Closing
Date. There are no anticipated, outstanding or unresolved
investigations examinations or inquires relating to Portfolio by
the Commission, or any other governmental authority having
jurisdiction over the business and affairs of Portfolio;
(q) . . No consent, approval authorization or order
of any court or governmental authority of the United States or
any state is required for the consummation by Portfolio of the
transactions contemplated herein; except such as may be required
under the 1933 Act, the Securities Exchange Act of 1934 (the
"1934 Act"), the 1940 Act and state securities laws;
(r) There are and will be no legal or governmental
proceedings or other agreements, only insofar as they relate to
Portfolio, existing on or before the date of mailing of the Proxy
Materials or the Closing Date that will have been required to be
described in the Registration Statement or in any documents that
are required to be filed as exhibits to the Registration
Statement that will not have been described as required;
(s) Except as described in paragraph 4.9, as of the
Closing Date, there shall have been no material change in the
investment objective, policies and restrictions nor any increase
in the investment management fees, fees payable pursuant to
Portfolio's 12b-1 Plan or shareholder services plan from those
described in Portfolio's currently effective prospectus and
statement of additional information; and
(t) To the best knowledge of Portfolio, the operations
of Portfolio (and the operations of Vintage with respect to
Portfolio's operations) as heretofore and as now conducted have
complied and comply in all material respects with all applicable
laws, statutes, legislation, acts, rules and regulations.
5.2 Except as provided in schedule 5.2 attached hereto, LCF
represents and warrants to Portfolio as follows:
(a) LCF is an Indiana business trust validly existing
and in good standing under the laws of the State of Indiana and
has the power and authority to own properties and to carry on
LCF's business as it is now conducted;
(b) LCF is a duly registered, open-end, management
investment company, and its registration with the Commission as
an investment company under the 1940 Act is in full force and
effect and such registration has not been revoked or rescinded.
LCF's current prospectus and statement of additional information
conform in all material respects to the requirements of the 1933
Act and the 1940 Act;
(c) All of the issued and outstanding shares of LCF
have been offered and sold in compliance in all material respects
with applicable registration requirements of the 1933 Act and
state securities laws. Shares of LCF are registered in all
jurisdictions in which they are required to be registered under
state securities laws and other laws.
(d) LCF has no material contracts or other commitments
(other than this Agreement) that will be terminated with
liability to it prior to or on the Closing Date;
(e) No litigation or administrative proceeding or
investigation of or before any court or governmental body is
presently pending or to its knowledge threatened against LCF,
Xxxxxxx or any of LCF's properties or assets. LCF 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 affect its business or its ability
to consummate the transactions herein contemplated;
(f) The financial statements of LCF as of and for the
fiscal year ended December 31, 1995, examined by Coopers &
Xxxxxxx, LCF's independent accountants, and Semi-Annual Report of
LCF as of June 30, 1996 (copies of which have been or will be
furnished to Portfolio) fairly represent, in all material
respects, LCF's financial condition as of the respective dates
indicated, results of operations for such periods and changes in
net assets for such periods in conformity with generally accepted
accounting principles applied on a consistent basis, and as of
such dates there were no known liabilities of LCF (contingent or
otherwise) not disclosed therein that would be required in
conformity with generally accepted accounting principles to be
disclosed therein. All liabilities (contingent and otherwise) as
of the Closing Date known to LCF will be reflected in conformity
with generally accepted accounting principles on the unaudited
Statement of Assets and Liabilities referred to in paragraph 1.3;
(g) Since the date of LCF's most recent audited
financial statements, there has not been any material adverse
change in LCF's financial condition, assets, liabilities or
business, other than changes occurring in the ordinary course of
business, or any incurrence by LCF of indebtedness maturing more
than one year from the date such indebtedness was incurred,
except as otherwise disclosed in writing to Portfolio prior to
the Closing Date. All liabilities of LCF (contingent or
otherwise) are reflected in the unaudited statement described in
paragraph 1.3 above. For the purposes of this subparagraph (h),
neither a decline in LCF's net asset value per share nor a
decrease in LCF's size due to ordinary redemption activity shall
constitute a material adverse change;
(h) At the Closing Date, all Federal and other tax
returns and reports of LCF required by law to be filed on or
before the Closing Date shall have been filed, and all Federal
and other taxes shall have been paid in full as due, and to the
best of LCF's knowledge no such return is currently under audit
and no assessment has been asserted with respect to any such
return;
(i) For each taxable year since its inception, LCF has
met all the requirements of Subchapter M of the Code for
qualification and treatment as a "registered investment company"
as defined therein;
(j) All issued and outstanding LCF Shares are, and at
the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable with no personal
liability attaching to the ownership thereof. All such shares
will, at the time of Closing, be held by persons and in the
amounts set forth in the list of shareholders submitted to
Portfolio pursuant to paragraph 3.4. LCF does not have
outstanding any options, warrants or other rights to subscribe
for or purchase any of its shares, nor is there outstanding any
security convertible into any of its shares;
(k) At the Closing Date, LCF will have title to the
LCF Assets, subject to no liens, security interests or other
encumbrances, and full right, power and authority to assign,
deliver and otherwise transfer the LCF Assets hereunder, and upon
delivery of the LCF Assets and exchange of the Portfolio Shares
to LCF's shareholders for the LCF Assets, Portfolio will attain
good title thereto, free and clear of all liens, claims, charges,
options, and encumbrances and subject to no restriction on the
full transfer thereof, including such restrictions as might arise
under the 1933 Act;
(l) Subject to the approval of this Agreement by LCF's
shareholders, the execution, delivery and performance of this
Agreement will have been duly authorized by all necessary action
on the part of LCF and Xxxxxxx, and this Agreement will
constitute a valid and binding obligation of LCF, 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. No other consents, authorizations or approvals are
necessary in connection with the performance of this Agreement,
except such as may be required under the 1933 Act, the 1934 Act,
the 1940 Act and state securities laws;
(m) On the effective date of the Registration
Statement, at the time of the meeting of LCF's shareholders and
on the Closing Date, the Proxy Materials (exclusive of
information relating to Portfolio, Advisers and any of their
affiliates, and the currently effective Prospectus of Portfolio
and the Statement of Additional Information incorporated therein)
will (i) comply in all material respects with the provisions of
the 1933 Act, the 1934 Act and the 1940 Act and the regulations
thereunder and (ii) 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, in
light of the circumstances under which such statements were made,
not misleading. Any other information furnished by LCF for use
in the Registration Statement or in any other manner that may be
necessary in connection with the transactions contemplated herein
shall be accurate and complete and shall comply in all material
respects with applicable Federal securities and other laws and
all regulations thereunder;
(n) LCF will, on or prior to the Closing Date, declare
one or more dividends or other distributions to its shareholders
that, together with all previous dividends and other
distributions to shareholders, shall have the effect of
distributing to the shareholders all of its investment company
taxable income and net realized capital gains, if any, through
the Closing Date (computed without regard to any deduction for
dividends paid);
(o) LCF has maintained or has caused to be maintained
on its behalf all books and accounts as required of a registered
investment company in compliance with the requirements of Section
31 of the 1940 Act and the Rules thereunder. The books and
records of LCF made available to Portfolio and/or its counsel,
accurately summarize the accounting data represented and contain
no material omissions with respect to the business and operation
of LCF;
(p) LCF is not receiving the Portfolio Shares to be
issuedhereunder for the purpose of making any distributions
thereof other than in accordance with this Agreement;
(q) LCF is not in violation of, and the execution and
delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, violate LCF's
Declaration of Trust or Code of Regulations or any provision of
any agreement to which LCF is a party or by which it is bound, or
result in the acceleration of any obligation or the imposition of
any penalty under any agreement, judgment or decree to which LCF
is a party or by which it is bound;
(r) As of the Closing Date, there shall have been no
material change in the investment objective, policies and
restrictions nor any increase in the investment management fees,
fees payable pursuant to LCF's 12b-1 Plan, Distribution Plan or
Shareholder Services Plan, if any, from those described in LCF's
currently effective prospectus and statement of additional
information; and
(s) To the best knowledge of LCF, the operations of
LCF as heretofore and as now conducted have complied and comply
in all material respects with all applicable laws, statutes,
legislation, acts, rules and regulations.
5.3 Xxxxxxx represents and warrants to Portfolio as
follows:
(a) As of the Closing Date, no violation of applicable
federal, state and local statute, law or regulation exists that
individually, or in the aggregate, would have a material adverse
effect on the business or operations of LCF, except as provided
in Schedule 5.2 attached hereto;
(b) Assuming fulfillment of the conditions precedent
to the consummation of the Reorganization, LCF has the right,
power, legal capacity and authority to enter into the
Reorganization contemplated by this Agreement;
(c) As of the Closing Date the affairs of LCF are in
compliance with the terms of its currently effective registration
statement, and LCF is in compliance with its investment policies
and restrictions as described in such documents;
(d) As of the Closing Date, there are no outstanding
breaches by LCF of any contract to which it is a party, including
but not limited to any contract with a custodian, transfer agent
or pricing agent, and there are no outstanding breaches by LCF of
any plan of distribution it has adopted pursuant to Rule 12b-1
under the 1940 Act;
(e) There are no unresolved or outstanding shareholder
claims or inquiries related to LCF and there will be no such
claims or inquiries as of the Closing Date other than as
disclosed by Xxxxxxx in writing to Portfolio prior to the Closing
Date;
(f) There are no anticipated, outstanding or
unresolved investigations, examinations or inquiries relating to
LCF by the Commission, or any other governmental authority having
jurisdiction over the business and affairs of LCF;
(g) There are no any outstanding or threatened private
claims or litigation relating to LCF and knows of no facts that
might form the basis for such proceedings;
(h) Except as previously disclosed to Portfolio in
writing and except as will have been fully corrected prior to the
Closing Date, there have been no miscalculations of the net asset
value of LCF during the twelve-month period preceding the Closing
Date and all such calculations have been done in accordance with
the provisions of Rule 2a-4 under the 1940 Act;
(i) The Federal and state income tax returns of LCF
for the fiscal year ended December 31, 1995 properly reflect, in
all material respects, the Federal and state income tax
liabilities of LCF for the periods covered thereby;
(j) There are no claims, levies or liabilities for
corporate, excise, income or other Federal, state or local taxes
outstanding or threatened against LCF, other than those reflected
in its most recent audited and unaudited financial statements.
Xxxxxxx knows of no facts that might form the basis for such
proceedings; and
(k) There have been no material adverse changes in
LCF's financial condition, assets, liabilities or business, other
than those reflected in its most recent audited and unaudited
financial statements; and all liabilities of LCF (contingent or
otherwise) known to Xxxxxxx have been reported in writing to and
accepted by Portfolio prior to the Closing Date. A reduction in
net assets due to ordinary shareholder redemption activity will
not be deemed to be a material adverse change.
6.0 Conditions to Obligations of LCF.
The obligations of LCF to consummate the transactions
provided for herein shall be subject to the performance by
Portfolio of all obligations to be performed by it hereunder on
or before the Closing Date and, in addition thereto, the
following conditions:
6.1 All representations and warranties of Portfolio
contained in this Agreement shall have been true and correct in
all material respects as of the date hereof and except as they
may be affected by the transactions contemplated by this
Agreement, shall be true and correct in all material respects as
of the Closing Date with the same force and effect as if made on
and as of the Closing Date;
6.2 Portfolio shall have delivered to LCF a certificate
executed in Portfolio's name by the President and Treasurer of
Vintage, in a form reasonably satisfactory to LCF and dated as of
the Closing Date, to the effect that the representations and
warranties of Portfolio made in this Agreement are true and
correct at and as of the Closing Date, except as they may be
affected by the transactions contemplated by this Agreement, and
as to such other matters as LCF shall reasonably request;
6.3 Portfolio shall have delivered to LCF copies of the
Declaration of Trust, By-laws and other Trust documents of
Vintage, as currently in effect, together with copies of the
resolutions adopted by the Board of Trustees of Vintage
authorizing the execution of this Agreement and the transactions
contemplated herein, in each case certified by the Secretary or
Assistant Secretary of Vintage;
6.4 Portfolio shall have delivered to LCF a certificate of
the Secretary or Assistant Secretary of Vintage as to the
signatures and incumbency of its officers who executed this
Agreement on behalf of Vintage and Portfolio, and any other
documents delivered in connection with the transactions
contemplated herein on behalf of Portfolio.
6.5 Between the date hereof and the Closing Date, Portfolio
shall have provided LCF and its representatives reasonable access
during regular business hours and upon reasonable notice to the
books and records of Portfolio, as LCF may reasonably request.
All such information obtained by LCF and its representatives
shall be held in confidence and may not be used for any purpose
other than in connection with the transaction contemplated
herein. In the event that the transaction contemplated by this
Agreement is not consummated, LCF and its representatives will
promptly return to Portfolio all documents and copies thereof
with respect to Portfolio obtained during the course of such
investigation;
6.6 Portfolio shall have delivered to Portfolio, pursuant
to paragraph 5.1(i), copies of the most recent financial
statements of Portfolio certified by Price Waterhouse,
Portfolio's accountants;
6.7 All proceedings taken by Portfolio in connection with
the transactions contemplated by this Agreement and all documents
incidental thereto shall be reasonably satisfactory in form and
substance to LCF.
7.0 Conditions to Obligations of Portfolio.
The obligations of Portfolio to complete the transactions
provided for herein shall be subject to the performance by LCF of
all the obligations to be performed by it hereunder on or before
the Closing Date and, in addition thereto, the following
conditions:
7.1 All representations and warranties of LCF and Xxxxxxx
contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement,
as of the Closing Date with the same force and effect as if made
on and as of the Closing Date;
7.2 LCF shall have delivered to Portfolio a statement of
LCF's assets and its liabilities, together with a list of the
LCF's securities and other assets showing the respective adjusted
bases and holding periods thereof for income tax purposes, as of
the Valuation Date, certified by the Treasurer of LCF;
7.3 LCF shall have delivered to Portfolio at the Closing a
certificate executed in LCF's name by the President and the
Treasurer of LCF, in form and substance satisfactory to
Portfolio and dated as of the Closing Date, to effect that the
representations and warranties of LCF made in this Agreement are
true and correct at and as of the Closing Date, except as they
may be affected by the transactions contemplated by this
Agreement, and as such other matters as Portfolio shall
reasonably request;
7.4 LCF shall have delivered to Portfolio copies of its
Declaration of Trust, Code of Regulations and other Trust
documents, as currently in effect, together with copies of the
resolutions adopted by the Board of Trustees of LCF and by its
shareholders authorizing the execution of this Agreement by LCF
and the transactions contemplated herein, certified in each case
by the Secretary or Assistant Secretary of LCF;
7.5 LCF shall have delivered to Portfolio a certificate of
the Secretary or Assistant Secretary of LCF as to the signatures
and incumbency of it officers who executed this Agreement on
behalf of LCF and any other documents delivered in connection
with the transactions contemplated herein on behalf of LCF;
7.6 Between the date hereof and the Closing Date, LCF shall
have provided Portfolio and its representatives reasonable access
during regular business hours and upon reasonable notice to the
books and records of LCF, as Portfolio may reasonably request.
All such information obtained by Portfolio and its
representatives shall be held in confidence and may not be used
for any purpose other than in connection with the transaction
contemplated herein. In the event that the transaction
contemplated by this Agreement is not consummated, Portfolio and
its representatives will promptly return to LCF all documents and
copies thereof with respect to LCF obtained during the course of
such investigation;
7.7 LCF shall have delivered to Portfolio, pursuant to
paragraph 5.2(g), copies of financial statements of LCF for the
fiscal year ended December 31, 1995, certified by Coopers &
Xxxxxxx, LCF's independent accountants;
7.8 On the Closing Date, LCF Assets shall include no assets
that Portfolio, by reason of charter limitations or otherwise,
may not properly receive; and
7.9 All proceedings taken by LCF in connection with the
transactions contemplated by this Agreement and all documents
incidental thereto shall be reasonably satisfactory in form and
substance to Portfolio.
8.0 Further Conditions Precedent to Obligations of LCF and
Portfolio.
The obligations of LCF and Portfolio are each subject to the
further conditions that on or before the Closing Date:
8.1 This Agreement and the transactions contemplated herein
shall have been approved by the requisite vote of the holders of
the outstanding LCF Shares and certified copies of the
resolutions evidencing such approvals shall have been delivered
to Portfolio;
8.2 On the Closing Date, no action, suit or other
proceeding shall be 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;
8.3 All consents of other parties and all other consents,
orders and permits of Federal, state and local regulatory
authorities (including those of the Securities and Exchange
Commission and of state securities authorities) deemed necessary
by Portfolio or LCF to permit the consummation, in all material
respects, of the transactions contemplated herein shall have been
obtained, except where failure to obtain any such consent, order
or permit would not involve risk or a material adverse effect on
the assets or properties of Portfolio or LCF;
8.4 The Registration Statement shall have become effective
under the 1933 Act, no stop orders suspending the effectiveness
thereof shall have been issued and, to the best knowledge of the
parties hereto, no investigation or proceeding for that purpose
shall have been instituted or be pending, threatened or
contemplated under the 1933 Act;
8.5 LCF shall have declared and paid a dividend or
dividends and/or other distributions that, together with all
previous such dividends or distributions, shall have the effect
of distributing to LCF's shareholders all of LCF's investment
company taxable income (computed without regard to any deduction
for dividends paid) and all of it net capital gain (after
reduction for any capital loss carry-forward and computed without
regard to any deduction for dividends paid) for all taxable years
ending or before the Closing Date; and
8.6 The parties shall have received a favorable opinion of
Xxxxx, Xxxxxxx & Xxxxx Co., L.P.A. (based upon such
representations as such law firm shall reasonably request),
addressed to Portfolio and LCF, which opinion may be relied upon
by the shareholders of LCF that, for Federal income tax purposes:
(a) The transfer of all of the LCF Assets in exchange
for the Portfolio Shares and the assumption by Portfolio of
certain identified liabilities of LCF followed by the
distribution by LCF of the Portfolio Shares to LCF's shareholders
in exchange for their LCF Shares will constitute a
"reorganization" within the meaning of Section 368 (a) (1) of the
Code, and LCF and Portfolio will each be a "party to a
reorganization" within the meaning of Section 368 (b) of the
Code, and that the transaction contemplated herein qualifies as a
tax-free reorganization under Section 368 (a) (1) of the Internal
Revenue Code of 1986;
(b) No gain or loss will be recognized by LCF or
Portfolio on the transfer of the LCF Assets to Portfolio solely
in exchange for the Portfolio Shares and the assumption by
Portfolio of the identified liabilities of LCF;
(c) No gain or loss will be recognized by LCF's
shareholders upon the exchange of the LCF Shares for the
Portfolio Shares and no gain or loss will be recognized by LCF on
the distribution of the Portfolio Shares to LCF's shareholders in
exchange for their LCF Shares;
(d) The aggregate tax basis for the Portfolio Shares
received by each LCF shareholder pursuant to the reorganization
will be the same as the aggregate tax basis of the LCF Shares
held by each such LCF shareholder immediately prior to the
reorganization;
(e) The holding period of the Portfolio Shares to be
received by each LCF shareholder will include the period during
which the LCF shares surrendered in exchange therefor were held
(provided such LCF Shares were held as capital assets on the date
of the Reorganization);
(f) The tax basis of the LCF Assets attained by
Portfolio will be the same as the tax basis of the LCF Assets to
LCF immediately prior to the Reorganization; and
(g) The holding period of the LCF Assets in the hands
of Portfolio will include the period during which those assets
were held by LCF.
Notwithstanding anything herein to the contrary, neither
Portfolio nor LCF may waive the conditions set forth in this
paragraph 8.6.
9.0 Brokerage Fees and Expenses.
9.1 Advisers, Portfolio, Xxxxxxx and LCF each represents
and warrants to the others that there are no brokers or finders
entitled to receive any payments in connection with the
transactions provided for herein.
9.2 (a) Advisers shall bear all Portfolio expenses
incurred in connection with entering into and carrying out the
provisions of this Agreement, including legal, accounting and
federal and state registration fees and expenses. Xxxxxxx shall
bear all LCF and Xxxxxxx expenses incurred in connection with
entering into and carrying out the provisions of this Agreement,
including legal and accounting fees, printing, filing and proxy
solicitation expenses and asset transfer taxes (if any) incurred
in connection with the consummation of the transactions
contemplated herein. Notwithstanding the foregoing, any legal
fees and expenses of Xxxxx, Xxxxxxx & Xxxxx Co., L.P.A. related
to the preparation and filing of the Registration Statement on
Form N-14 shall be borne by Xxxxxxx up to an amount of $25,000
and shall not be borne by LCF, Portfolio or Advisers, except that
Advisers shall bear any legal fees and expenses of Xxxxx, Xxxxxxx
& Xxxxx Co., L.P.A. related to the preparation and filing of the
Registration Statement on Form N-14 that exceed the $25,000 limit
borne by Xxxxxxx.
(b) In the event the transactions contemplated herein
are not consummated by reason of LCF's being either unwilling or
unable to go forward (other than by reason of nonfulfillment or
failure of any condition to LCF's obligations specified in the
Agreement), this Agreement shall terminate and LCF's only
obligation hereunder shall be to reimburse Portfolio for all
reasonable out of pocket fees and expenses incurred by Portfolio
in connection with those transactions, including legal,
accounting and filing fees.
(c) In the event the transactions contemplated herein
are not consummated by reason of Portfolio's being either
unwilling or unable to go forward (other than by reason of the
nonfulfillment or failure of any condition to Portfolio's
obligations specified in the Agreement), this Agreement shall
terminate and Portfolio's only obligation hereunder shall be to
reimburse LCF for all reasonable out-of-pocket fees and expenses
incurred by LCF in connection with those transactions including
legal, accounting and filing fees, and to comply with the
provisions of paragraph 7.6 herein.
10. Entire Agreement: Survival of Warranties.
10.1 Portfolio, LCF, Xxxxxxx, Advisers and Vintage agree
that no party has made any representation, warranty or covenant
not set forth herein and that this Agreement constitutes the
entire agreement between the parties.
11. Termination.
11.1 In addition to termination pursuant to paragraph 9.2(b)
or 9.2(c), this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the
Closing, whether before or after action thereon by the
shareholders of LCF and notwithstanding favorable action by such
shareholders:
(a) by the mutual consent of the Board of Trustees of
Vintage and the Board of Trustees of LCF;
(b) by either Portfolio or LCF by notice to the other,
without liability to the terminating party on account of such
termination (providing the terminating party is not otherwise in
default or in breach of this Agreement) if the Closing shall not
have occurred on or before December 31, 1996, or if later, two
business days after the date of any LCF Shareholders meeting
called for the purpose of approving this Agreement which was
convened prior to December 31, 1996 but adjourned to a date
after; or
(c) by either Portfolio or LCF, in writing without
liability to the terminating party on account of such termination
(provided the terminating party is not otherwise in default or
breach of this Agreement), if (i) the other party shall fail to
perform in any material respect its agreements contained herein
required to be performed prior to the Closing Date, (ii) the
other party materially breaches or shall have materially breached
any of its representations, warranties or covenants contained
herein, (iii) LCF shareholders fail to approve this Agreement at
any meeting called for such purpose at which a quorum was present
or (iv) any other condition herein expressed to be precedent to
the obligations of the terminating party has not been met and it
reasonably appears that it will not or cannot be met.
11.2 (a) Termination of this Agreement pursuant to
paragraphs 11.1(a) or (b) shall terminate all obligations of the
parties hereunder (other than Portfolio's obligations under
paragraph 7.6) and there shall be no liability for damages on the
part of Portfolio, LCF, Advisers or Xxxxxxx or the
directors/trustees or officers of Portfolio, LCF, Xxxxxxx or
Vintage, or to any other party or its directors/trustees or
officers.
(b) Termination of this Agreement pursuant to
paragraph 11.1(c) shall terminate all obligations of the parties
hereunder (other than Portfolio's obligations under paragraph
7.6) and there shall be no liability for damages on the part of
Portfolio, LCF, Xxxxxxx, Advisers or Vintage, or
directors/trustees or officers of Portfolio, LCF, Xxxxxxx,
Advisers or Vintage, to any other party or its directors/trustees
or officers, except that any party in breach of this Agreement
shall, upon demand, reimburse the non-breaching party or parties
for all reasonable out-of-pocket fees and expenses incurred in
connection with the transactions contemplated by this Agreement,
including legal, accounting and filing fees.
(c) Notwithstanding the foregoing, the parties may
extend any dates herein upon the unanimous written consent of all
of the parties hereto.
12. Amendments.
This Agreement may be amended, modified or supplemented in
such a manner as may be mutually agreed upon in writing by the
authorized officers of Portfolio, LCF, Xxxxxxx and Vintage;
provided, however, that following the meeting of the LCF
shareholders called by LCF pursuant to paragraph 4.3, no such
amendment may have the effect of changing the provisions for
determining the number of the Portfolio Shares to be issued to
the LCF shareholders under this Agreement to the detriment of
such shareholders without their further approval. Furthermore,
after the aforementioned approval by the LCF shareholders, no
amendment may be made with respect to this Agreement which in the
opinion of LCF's Board of Trustees materially adversely affects
the interests of the shareholders of LCF.
At any time either party hereto may, by written instrument
by it (i) waive any inaccuracies in the representations and
warranties made to it contained herein and (ii) waive compliance
with any of the covenants or conditions made for its benefit
contained herein.
13. Indemnification.
13.1 Portfolio will indemnify and hold harmless Xxxxxxx, its
directors, officers and shareholders against any and all claims
to the extent that such claims are based upon, arise out of or
relate to any untruthful or inaccurate representation made by
Portfolio in this Agreement or any breach by Portfolio of any
warranty or any failure to perform or comply with any of its
obligations, covenants conditions or agreements set forth in this
Agreement.
13.2 Xxxxxxx will indemnify and hold harmless Portfolio,
Vintage and Advisers, their directors/trustees, officers and
shareholders against any and all claims to the extent that such
claims are based upon, arise out of or relate to any untruthful
or inaccurate representation made by Xxxxxxx or LCF in this
Agreement or any breach by Xxxxxxx or LCF of any warranty or any
failure to perform or comply with any of its obligations,
covenants conditions or agreements set forth in this Agreement.
13.3 Advisers will indemnify and hold harmless Xxxxxxx, its
directors, officers and shareholders against any and all claims
to the extent that such claims are based upon, arise out of or
relate to any untruthful or inaccurate representation made by
Advisers in this Agreement or any breach by Advisers of any
warranty or any failure to perform or comply with any of its
obligations, covenants conditions or agreements set forth in this
Agreement.
13.4 As used in this section 13, the word "claim" shall mean
any and all liabilities, obligations, losses, damages,
deficiencies, demands, claims, penalties, assessments, judgments,
actions, proceedings and suits of whatever kind and nature and
all costs and expenses (including, without limitation, reasonable
attorney's fees and expenses and cost of settlement ).
13.5 Xxxxxxx will indemnify and hold harmless Portfolio,
Vintage and their respective trustees, officers and shareholders
against any and all claims with respect to any actions,
inactions, activities or any other matters occurring prior to the
Closing which in any way relate to LCF.
13.6 Promptly after receipt by any party (the "Indemnified
Party") of notice of any claim by a third party which may give
rise to indemnification hereunder, the Indemnified Party shall
notify the party against whom a Claim for indemnification may be
made hereunder (the "Indemnifying Party"), in reasonable detail
of the nature and amount of the claim. The Indemnifying Party
shall be entitled to assume, at its sole cost and expense (unless
it is subsequently determined that the Indemnifying Party did not
have the obligation to indemnify the Indemnified party under such
circumstances), in which case the Indemnified party shall bear
all costs and expenses relating to such claim and shall reimburse
the Indemnifying Party for any such costs and expenses, and shall
have sole control of the defense and settlement of such action or
claim; provided, however, that:
. . .(a) the Indemnified Party shall be entitled to
participate in the defense of such claim and, in connection
therewith, to employ counsel at its own expense; and
. . .(b) Without the prior written consent of the
Indemnified Party which shall not be unreasonably withheld, the
Indemnifying Party shall not consent to the entry of any judgment
or enter into any settlement that requires any action other than
the payment of money.
In the event the Indemnifying Party elects to assume control
of the defense of any action in accordance with the foregoing
provisions, (i) the Indemnifying Party shall not be liable to
Indemnified Party for any legal fees, costs and expenses incurred
by the Indemnified Party in connection with the defense thereof
arising after the date the Indemnifying Party elects to assume
control of such defenses and (ii) the Indemnified Party shall
fully cooperate with the Indemnifying Party in such defense. If
the Indemnifying Party does not assume control of the defense of
such claim in accordance with the foregoing provisions (except
when it is subsequently determined that the Indemnifying Party
did not have the obligation to indemnify), the Indemnified Party
shall have the right to defend such claim, in which case the
Indemnifying Party shall pay all reasonable costs and expenses of
such defenses plus interest on the cost of defense from the date
paid at a rate equal to the prime rate of interest as in effect
from time to time at Citibank, N.A.. The Indemnified Party shall
conduct such defense in good faith and shall have the right to
settle the matter with the prior written consent of the
Indemnifying Party which shall not be unreasonably withheld.
14. Notices.
Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be in writing
and shall be given by prepaid telegraph, telecopy, certified mail
or overnight express courier addressed to Portfolio and LCF as
follows:
If to Portfolio,
Advisers or Vintage:. . . . . . . .If to LCF or Xxxxxxx:
Vintage Advisers, Inc.. . . . .Xxxxxxx Holdings Asset
000 Xxxxx Xxxxxxxxxxxx Xxxxxx . . .Management, Inc.
Xxxxxxxxxxxx, Xxxxxxx 00000 . . . .100 Park Avenue. . .
Attention: Xxxxxxx X. Xxxxxxx. . .New York, N.Y. 10017
Attention: Xxxxx Xxxxxxx
with a copy to: . . . . . . . . . .with a copy to:
Xxxxxx X. Xxxxxxxxxx, Esquire . . .Xxxxxx X. XxxXxxx, Esquire
Xxxxx, Xxxxxxx & Xxxxx Co., L.P.A..Stradley, Ronon, Xxxxxxx & Young
3500 Xxxxx Tower, 000 Xxxx Xxxxxx .2600 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000 . . . . . .Philadelphia, Pa. 19103
15. Headings: Counterparts: Governing Law: Assignment,
Limitation of Liability.
15.1 The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
15.2 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
15.3 This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
15.4 This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns,
but no assignment or transfer hereof or of any rights or
obligations hereunder shall be made by any party without the
written consent of the other parties. Nothing herein expressed
or implied is intended or shall be construed to confer upon or
give any person, entity, 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, except
that, the persons designated in paragraphs 13.1, 13.2, 13.3, 13.4
and 13.5 hereof shall be entitled to the benefits and may enforce
the provisions of section 13 hereof.
15.5 The agreements, covenants, representations, warranties,
obligations and liabilities of Portfolio hereunder are solely
those of Portfolio and Vintage, acting on behalf of Portfolio.
None of the shareholders, nominees, officers, trustees, agents or
employees of Portfolio or Vintage shall be personally bound by or
liable under this Agreement nor shall resort be had to their
private property for the satisfaction of any obligation or claim
hereunder. The execution and delivery of this Agreement by
Portfolio and Vintage have been authorized by the trustees of
Vintage under the Declaration of Trust of Vintage and signed by
authorized officers of Vintage acting as such, and neither such
authorization by such trustees nor such execution and delivery by
such officers shall be deemed have been made by them individually
or to impose any liability on any of them personally. Any
obligations or claim relating to the assets of Portfolio shall
not be satisfied by assets of any class of shares of Vintage
other than Portfolio.
15.6 The obligations and liabilities of LCF hereunder are
solely those of LCF. None of the shareholders, nominees,
officers, trustees, agents or employees of LCF shall be
personally bound by or liable under this Agreement nor shall
resort be had to their private property for the satisfaction of
any obligation or claim hereunder. The execution and delivery of
this Agreement have been authorized by the trustees of LCF under
the Declaration of Trust of LCF and signed by authorized officers
of LCF acting as such, and neither such authorization by such
trustees nor such execution and delivery by such officers shall
be deemed have been made by them individually or to impose any
liability on any of them personally. Any obligations or claim
relating to the assets of LCF shall not be satisfied by assets of
any portfolio of LCF other than that of LCF.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by its duly authorized officers as of
the date first written above.
. . . . . . . . . . THE VINTAGE FUNDS, acting on behalf of
THE XXXXXXX COVENANT FUND . . . . .FIDUCIARY VALUE FUND
By: /s/ X. X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
XXXXXXX HOLDINGS ASSET. . . . . . .VINTAGE ADVISERS,INC.
MANAGEMENT, INC.
By: /s/ X. X. Xxxxxxx . . . .By: /s/ Xxxxxxx X. Xxxxxxx
. . . . . . . . . . . . .UNIFIED ADVISERS, INC. (for
purposes of Schedule 5.2 only)
. . . . . . . . . . . . .By: /s/ Xxxxxxx X. Xxxxxxx
SCHEDULE 1.3 (d)
None
SCHEDULE 4.9
Advisers, the Sub-Adviser and Xxxxxxx shall enter into a
consulting agreement, terminable on at least 60 days' prior
written notice by any party, pursuant to which Xxxxxxx shall
provide the Sub-Adviser with a list of 200 "socially conscious"
companies (the "List") for purposes of possible investment on
behalf of Portfolio. Xxxxxxx shall update the List at least on a
quarterly basis, and more frequently if necessary to eliminate
companies which no longer qualify as "socially conscious". For
this purpose, "socially conscious" companies shall be chosen by
Xxxxxxx from the 1,000 largest U.S. corporations on the basis of
their responsible behavior, after consideration of such issues as
customer, community, employee, competitor, supplier and
shareholder relations, environmental and social issues. The
Sub-Adviser shall not be obligated to select any securities for
Portfolio from the List and, subject to the supervision of
Advisers, shall perform all investment advisory services to
Portfolio. Xxxxxxx shall not provide investment advisory
services to Portfolio. For its consulting services with respect
to the List, Xxxxxxx shall be paid by Advisers a fee on a
quarterly basis equal to 18 basis points (.18%) of the average
daily net assets of Portfolio.
