Sub-Item 77Q1(g): Copies of Merger or Consolidation Agreements Relating to
Sub-Item 77M
AGREEMENT AND PLAN OF REORGANIZATION
XXXXXXX XXXXX INTERNATIONAL SMALL CAP FUND
XXXXXXX SACHS INTERNATIONAL SMALL CAP INSIGHTS FUND
This Agreement and Plan of Reorganization is made as of January 29, 2016 by
and between Xxxxxxx Xxxxx Trust, a Delaware statutory trust (Xxxxxxx Sachs
Trust), on behalf of Xxxxxxx Xxxxx International Small Cap Fund (the Acquired
Fund) and Xxxxxxx Sachs International Small Cap Insights Fund (the Surviving
Fund, and together with the Acquired Fund, the Funds).
This agreement is intended to be and is adopted as a plan of reorganization
and liquidation (the Plan) within the meaning of Section 368(a)(1) of the
United States Internal Revenue Code of 1986, as amended (the Code). The
reorganization and liquidation will consist of the transfer of substantially
all of the assets of the Acquired Fund to the Surviving Fund in exchange
solely for shares of beneficial interest of the Surviving Fund (Surviving
Fund Shares) corresponding to the outstanding shares of beneficial interest
of the Acquired Fund, the assumption by the Surviving Fund of all liabilities
of the Acquired Fund, and the distribution of the Surviving Fund Shares to
the applicable shareholders of the Acquired Fund in complete liquidation of
the Acquired Fund, as provided herein (the Reorganization), all upon the
terms
and conditions hereinafter set forth in this Plan.
WHEREAS, the Funds are series of Xxxxxxx Xxxxx Trust, an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the 1940 Act);
WHEREAS, the Board of Trustees of Xxxxxxx Sachs Trust (the Board) has
determined that the exchange of substantially all of the assets of the
Acquired Fund for Surviving Fund Shares and the assumption of all
liabilities
of the Acquired Fund by the Surviving Fund is in the best interests of the
Funds and that the interests of the existing shareholders of the Funds
would
not be diluted as a result of this transaction; and
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Transfer of Assets of the Acquired Fund to the Surviving Fund in
Exchange for Surviving Fund Shares, the Assumption of all of the Acquired
Funds Liabilities and the Liquidation of the Acquired Fund
1.1. Subject to the requisite approvals and the other terms and
conditions herein set forth and on the basis of the representations and
warranties contained herein, the Acquired Fund agrees to transfer all of
its assets, as set forth in paragraph 1.2, to the Surviving Fund, and the
Surviving Fund agrees in exchange therefor: (i) to deliver to the Acquired
Fund the number of full and fractional Surviving Fund Shares of the respective
class set forth on Schedule A, determined by dividing the value of the
Acquired
Funds net assets, computed in the manner and as of the time and date set
forth
in paragraph 2.1, by the net asset value of one Surviving Fund Share of the
corresponding class, computed in the manner and as of the time and date set
forth in paragraph 2.2; and (ii) to assume all liabilities of the Acquired
Fund, as set forth in paragraph 1.3. Such transactions shall take place on the
date of the closing provided for in paragraph 3.1 (the Closing Date).
1.2. The assets of the Acquired Fund to be acquired by the Surviving Fund
shall consist of all assets and property, including, without limitation, all
cash, securities, commodities and futures interests and dividends or
interests
receivable that are owned by the Acquired Fund and any deferred or prepaid
expenses shown as an asset on the books of the Acquired Fund on the Closing
Date (collectively, Assets).
1.3. The Acquired Fund will endeavor to discharge all of its liabilities
and obligations prior to the Closing Date. The Surviving Fund shall also
assume
all of the liabilities of the Acquired Fund, whether accrued or contingent,
known or unknown, existing at the Valuation Date as defined in paragraph 2.1
(collectively, Liabilities). On or as soon as practicable prior to the
Closing
Date, the Acquired Fund will declare and pay to its shareholders of record one
or more dividends and/or other distributions so that it will have distributed
all of its investment company taxable income (computed without regard to any
deduction for dividends paid) and realized net capital gain, if any, for the
current taxable year through the Closing Date.
1.4. Immediately after the transfer of assets provided for in paragraph
1.1,
the Acquired Fund will distribute to its respective shareholders of record,
determined as of immediately after the close of business on the Closing Date
(Acquired Fund Shareholders), on a pro rata basis, the Surviving Fund Shares
of the corresponding class received by the Acquired Fund pursuant to
paragraph
1.1 and Schedule A, and will completely liquidate. Such distribution and
liquidation will be accomplished by the transfer of the Surviving Fund Shares
then credited to the account of the Acquired Fund on the books of the
Surviving
Fund to open accounts on the share records of the Surviving Fund in the names
of the Acquired Fund Shareholders. The aggregate net asset value of Surviving
Fund Shares to be so credited to the applicable Acquired Fund Shareholders,
shall be equal to the aggregate net asset value of the corresponding class of
shares of beneficial interest of the Acquired Fund (Acquired Fund Shares)
owned by Acquired Fund Shareholders on the Closing Date. All issued and
outstanding shares of the Acquired Fund will simultaneously be redeemed and
canceled on the books of the Acquired Fund. The Surviving Fund shall not
issue certificates representing the Surviving Fund Shares in connection with
such exchange.
1.5. Ownership of Surviving Fund Shares will be shown on the books of the
Surviving Funds Transfer Agent, as defined in paragraph 3.3. Shares of the
Surviving Fund will be issued in the manner described in the Surviving Funds
current prospectus.
1.6. Any reporting responsibility of the Acquired Fund, including, but
not limited to, the responsibility for filing regulatory reports, tax
returns,
or other documents with the U.S. Securities and Exchange Commission (SEC),
any state securities commission, and any Federal, state or local tax
authorities or any other relevant regulatory authority, is and shall remain
the responsibility of the Acquired Fund up to and including the Closing
Date.
2. Valuation
2.1. The value of the Assets shall be the value of such Assets computed
as of immediately after the close of business of the New York Stock
Exchange
and after the declaration of any dividends on the Closing Date (such time
and date being hereinafter called the Valuation Date), using the valuation
procedures set forth in the then-current prospectus and statement of
additional
information with respect to the Acquired Fund and valuation procedures
established by the Board.
2.2. The net asset value of a Surviving Fund Share shall be the net
asset
value per share computed with respect to that class as of the Valuation
Date,
using the valuation procedures set forth in the Surviving Funds
then-current
prospectus and statement of additional information and valuation
procedures
established by the Board.
2.3. The number of the Surviving Fund Shares to be issued (including
fractional shares, if any) in exchange for the Acquired Funds Assets shall
be determined by dividing the value of the net assets with respect to the
Acquired Fund Shares, determined using the same valuation procedures
referred to in paragraph 2.1, by the net asset value of a Surviving Fund
Share, determined in accordance with paragraph 2.2.
2.4. All computations of value shall be made by JPMorganChase Bank,
N.A. (JPMorgan), in its capacity as administrator for the Acquired Fund.
3. Closing and Closing Date
3.1. The Closing Date shall be on or about February 5, 2016 or such
other
date as the parties may agree. All acts taking place at the closing of the
transactions provided for in this Plan (the Closing) shall be deemed to
take
place simultaneously as of immediately after the close of business on the
Closing Date unless otherwise agreed to by the parties. The close of business
on the Closing Date shall be as of 4:00 p.m. Eastern time. The Closing shall
be held at the offices of Xxxxxxx Xxxxx Asset Management, L.P. or at such other
time and/or place as the parties may agree.
3.2. The Acquired Fund shall direct JPMorgan, as custodian for the Acquired
Fund (the Custodian), to deliver, at the Closing, a certificate of an
authorized
officer stating that the Assets have been delivered in proper form to the
Surviving Fund. The Acquired Funds portfolio securities represented by a
certificate or other written instrument shall be presented by the Custodian
to those persons at the Custodian who have primary responsibility for the
safekeeping of the assets of the Surviving Fund, which Custodian also serves
as the custodian for the Surviving Fund. Such presentation shall be made for
examination no later than five business days preceding the Closing Date, and
shall be transferred and delivered by the Acquired Fund as of the Closing Date
for the account of the Surviving Fund duly endorsed in proper form for
transfer
in such condition as to constitute good delivery thereof. The Custodian shall
deliver to those persons at the Custodian who have primary responsibility for
the safekeeping of the assets of the Surviving Fund as of the Closing Date by
book entry, in accordance with customary practices of the Custodian and the
requirements of Section 17(f) and the rules thereunder, the Acquired Funds
Assets. The cash to be transferred by the Acquired Fund shall be delivered by
wire transfer of Federal funds on the Closing Date.
3.3. The Acquired Fund shall direct Xxxxxxx, Sachs & Co., in its capacity
as transfer agent for the Acquired Fund (the Transfer Agent), to deliver at
the Closing a certificate of an authorized officer stating that its records
contain the names and addresses of the Acquired Fund Shareholders and the
number and percentage ownership of outstanding shares owned by each such
shareholder immediately prior to the Closing. The Surviving Fund shall issue
and deliver to the Secretary of the Acquired Fund prior to the Closing Date
a confirmation evidencing that the appropriate number of Surviving Fund
Shares
will be credited to the Acquired Fund on the Closing Date, or provide other
evidence satisfactory to the Acquired Fund as of the Closing Date that such
Surviving Fund Shares have been credited to the Acquired Funds accounts on the
books of the Surviving Fund. At the Closing, each party shall deliver to the
other such bills of sale, checks, assignments, share certificates, if any,
receipts or other documents as such other party or its counsel may reasonably
request.
3.4. In the event that on the Valuation Date (a) the New York Stock
Exchange
or another primary trading market for portfolio securities of the Surviving
Fund or the Acquired Fund (each, an Exchange) shall be closed to trading or
trading thereupon shall be restricted, or (b) trading or the reporting of
trading on such Exchange or elsewhere shall be disrupted so that, in the
judgment of the Board, accurate appraisal of the value of the net assets of
the Acquired Fund or the Surviving Fund is impracticable, the Closing Date
shall be postponed until the first business day after the day when trading
shall have been fully resumed and reporting shall have been restored.
4. Representations and Warranties
4.1. Except as has been fully disclosed to the Surviving Fund in a written
instrument executed by an officer, Xxxxxxx Xxxxx Trust, on behalf of the
Acquired Fund, represents and warrants to the Surviving Fund, as follows:
(a) The Acquired Fund is a series of Xxxxxxx Sachs Trust, which is a
statutory trust duly organized, validly existing, and in good standing under
the laws of the State of Delaware with power under its Declaration of Trust
and By-Laws to own all of its properties and assets and to carry on its
business as it is now being conducted;
(b) Xxxxxxx Xxxxx Trust is a registered investment company classified as
a
management company of the open-end type, and its registration with the SEC as
an investment company under the 1940 Act, and the registration of the Acquired
Fund Shares under the Securities Act of 1933, as amended (1933 Act) have not
been revoked or rescinded and are in full force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquired Fund
of the transactions contemplated herein, except such as have been obtained
under the 1933 Act, the Securities Exchange Act of 1934, as amended (1934 Act),
and the 1940 Act, and such as may be required by state securities laws;
(d) The current prospectus and statement of additional information of the
Acquired Fund and each prospectus and statement of additional information of
the Acquired Fund used at all times prior to the date of this Plan conforms
or conformed at the time of its use in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations of
the SEC thereunder and does not or did not at the time of its use include any
untrue statement of a material fact or omit to state any material fact
required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not materially misleading;
(e) On the Closing Date, Xxxxxxx Sachs Trust, on behalf of the Acquired
Fund,
will have good and marketable title to the Assets and full right, power, and
authority to sell, assign, transfer and deliver such Assets hereunder free of
any
liens or other encumbrances, and upon delivery and payment for such Assets,
Xxxxxxx Xxxxx Trust, on behalf of the Surviving Fund, will acquire good and
marketable title thereto, subject to no restrictions on the full transfer
thereof,
including such restrictions as might arise under the 1933 Act, other than as
disclosed to the Surviving Fund;
(f) The Acquired Fund is not engaged currently, and the execution,
delivery
and performance of this Plan will not result, in (i) a material violation of
Xxxxxxx Sachs Trusts Declaration of Trust or By-Laws, or of any agreement,
indenture, instrument, contract, lease or other undertaking to which Xxxxxxx
Xxxxx Trust, on behalf of the Acquired Fund, is a party or by which it is
bound,
or (ii) the acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease, judgment or
decree
to which Xxxxxxx Sachs Trust, on behalf of the Acquired Fund, is a party or by
which it is bound;
(g) All material contracts or other commitments of the Acquired Fund (other
than this Plan and certain investment contracts, including options, futures,
and
forward contracts) will terminate without liability to the Acquired Fund on or
prior to the Closing Date;
(h) Except as otherwise disclosed in writing to and accepted by Xxxxxxx
Xxxxx
Trust, on behalf of the Surviving Fund, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or, to its knowledge, threatened against Xxxxxxx Sachs
Trust,
on behalf of the Acquired Fund, or any of its properties or assets that, if
adversely determined, would materially and adversely affect its financial
condition or the conduct of its business. Xxxxxxx Xxxxx Trust, on behalf of
the
Acquired Fund, knows of no facts which 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 the Acquired Funds business or its ability to consummate the
transactions herein contemplated;
(i) The Statement of Assets and Liabilities, Statement of Operations,
Statements of Changes in Net Assets, and Schedule of Investments of the
Acquired
Fund dated October 31, 2014 have been audited by PricewaterhouseCoopers LLP,
Independent Registered Public Accounting Firm, and are in accordance with
accounting
principles generally accepted in the United States of America (GAAP)
consistently
applied, and such statements (copies of which have been furnished to the
Surviving
Fund) present fairly, in all material respects, the financial condition of the
Acquired Fund as of such date in accordance with GAAP, and there are no known
contingent liabilities of the Acquired Fund required to be reflected on a
balance
sheet (including the notes thereto) in accordance with GAAP as of such date
not
disclosed therein;
(j) Since October 31, 2014, there has not been any material adverse
change in
the Acquired Funds financial condition, assets, liabilities or business,
other
than changes occurring in the ordinary course of business, or any incurrence
by
the Acquired Fund of indebtedness maturing more than one year from the date
such
indebtedness was incurred, except as otherwise disclosed to and accepted by
the
Surviving Fund. For the purposes of this subparagraph (j), a decline in net
asset
value per share of Acquired Fund Shares due to declines in market values of
securities held by the Acquired Fund, the discharge of the Acquired Funds
liabilities, or the redemption of the Acquired Funds shares by shareholders
of the Acquired Fund shall not constitute a material adverse change;
(k) On the Closing Date, all Federal and other tax returns, dividend
reporting
forms, and other tax-related reports of the Acquired Fund required by law
to have
been filed by such date (including any extensions) shall have been filed
and are or
will be correct in all material respects, and all Federal and other taxes
shown as
due or required to be shown as due on said returns and reports shall have
been paid
or provision shall have been made for the payment thereof, and to the best of
the
Acquired Funds knowledge, no such return is currently under audit and no
assessment
has been asserted with respect to such returns;
(l) For each taxable year of its operation (including the taxable year
ending
on the Closing Date), the Acquired Fund has met (or will meet) the
requirements of
Subchapter M of the Code for qualification as a regulated investment company,
has
been (or will be) eligible to and has computed (or will compute) its Federal
income
tax under Section 852 of the Code, and will have distributed all of its
investment
company taxable income and net capital gain (as defined in the Code) that has
accrued
through the Closing Date, and before the Closing Date will have declared
dividends
sufficient to distribute all of its investment company taxable income and net
capital
gain for the period ending on the Closing Date;
(m) All issued and outstanding Acquired Fund Shares are, and on the Closing
Date
will be, duly and validly issued and outstanding and, subject to the
qualifications
set forth in the Xxxxxxx Sachs Trusts Declaration of Trust, fully paid and
non-assessable by Xxxxxxx Xxxxx Trust and have been offered and sold in every
state
and the District of Columbia in compliance in all material respects with
applicable
registration requirements of the 1933 Act and state securities laws. All of
the
issued and outstanding shares of the Acquired Fund will, at the time of
Closing,
be held by the persons and in the amounts set forth in the records of
the Transfer
Agent, on behalf of the Acquired Fund, as provided in paragraph 3.3.
The Acquired
Fund does not have outstanding any options, warrants or other rights to
subscribe
for or purchase any Acquired Fund Shares, nor is there outstanding any
security
convertible into any of the Acquired Fund Shares;
(n) The execution, delivery and performance of this Plan will have been
duly
authorized prior to the Closing Date by all necessary action, if any, on the
part
of the Board, on behalf of the Acquired Fund, and this Plan will constitute
a valid
and binding obligation of the Acquired Fund, enforceable in accordance with
its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors rights and to
general equity principles;
(o) The information to be furnished by the Acquired Fund for use in
registration
statements, information statements and other documents filed or to be filed
with
any Federal, state or local regulatory authority (including the Financial
Industry
Regulatory Authority), which may be necessary in connection with the
transactions
contemplated hereby, shall be accurate and complete in all material respects
and
shall comply in all material respects with Federal securities and other
laws and
regulations thereunder applicable thereto; and
(p) The combined information statement and prospectus (Information
Statement)
to be included in the Registration Statement referred to in paragraph 5.5,
insofar
as it relates to the Acquired Fund, will, on the effective date of the
Registration
Statement on Form N-14 (Registration Statement) and on the Closing Date
(i) 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, provided, however, that the representations and warranties of
this
subparagraph (p) shall not apply to statements in or omissions from the
Information
Statement and the Registration Statement made in reliance upon and in
conformity
with information that was furnished by the Surviving Fund for use therein,
and (ii)
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.
4.2. Except as has been fully disclosed to the Acquired Fund in a
written
instrument executed by an officer of Xxxxxxx Sachs Trust, Xxxxxxx Xxxxx
Trust,
on behalf of the Surviving Fund, represents and warrants to the Acquired
Fund,
as follows:
(a) The Surviving Fund is a series of Xxxxxxx Sachs Trust, which is a
statutory
trust duly organized, validly existing, and in good standing under the laws
of the
State of Delaware with power under its Declaration of Trust and By-Laws to
own all
of its properties and assets and to carry on its business as it is now being
conducted;
(b) Xxxxxxx Xxxxx Trust is a registered investment company classified as a
management company of the open-end type, and its registration with the SEC
as an
investment company under the 1940 Act, and the registration of the Surviving
Fund
Shares under the 1933 Act have not been revoked or rescinded and are in full
force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental
authority is required for the consummation by the Surviving 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 by state
securities laws;
(d) The current prospectus and statement of additional information of the
Surviving Fund and each prospectus and statement of additional information of
the Surviving Fund used at all times prior to the date of this Plan conforms or
conformed at the time of its use in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations of
the SEC thereunder and does not or did not at the time of its use include any
untrue statement of a material fact or omit to state any material fact
required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not materially misleading;
(e) On the Closing Date, Xxxxxxx Sachs Trust, on behalf of the Surviving
Fund,
will have good and marketable title to the Surviving Funds assets, free of
any
liens or other encumbrances, except those liens or encumbrances as to which
the
Acquired Fund has received notice and necessary documentation at or prior to
the
Closing;
(f) The Surviving Fund is not engaged currently, and the execution,
delivery
and performance of this Plan will not result, in (i) a material violation of
Xxxxxxx Xxxxx Trusts Declaration of Trust or By-Laws, or of any agreement,
indenture, instrument, contract, lease or other undertaking to which Xxxxxxx
Sachs Trust, on behalf of the Surviving Fund, is a party or by which it is
bound,
or (ii) the acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease, judgment or
decree
to which Xxxxxxx Xxxxx Trust, on behalf of the Surviving Fund, is a party or
by
which it is bound;
(g) Except as otherwise disclosed in writing to and accepted by Xxxxxxx
Sachs
Trust, on behalf of the Acquired Fund, no litigation or administrative
proceeding
or investigation of or before any court or governmental body is presently
pending
or, to the Surviving Funds knowledge, threatened against Xxxxxxx Xxxxx Trust,
on
behalf of the Surviving Fund, or any of the Surviving Funds properties or
assets
that, if adversely determined, would materially and adversely affect the
Surviving
Funds financial condition or the conduct of its business. Xxxxxxx Sachs
Trust,
on behalf of the Surviving Fund, knows of no facts which 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 the Surviving Funds business or its
ability
to consummate the transactions herein contemplated;
(h) All issued and outstanding Surviving Fund Shares are, and on the
Closing
Date will be, duly and validly issued and outstanding and, subject to the
qualifications set forth in the Xxxxxxx Xxxxx Trusts Declaration of Trust,
fully paid and non-assessable by Xxxxxxx Sachs Trust and will have been
offered
in every state and the District of Columbia in compliance in all material
respects with applicable registration requirements of the 1933 Act and state
securities laws. The Surviving Fund does not have outstanding any options,
warrants or other rights to subscribe for or purchase any Surviving Fund
Shares,
nor is there outstanding any security convertible into any Surviving Fund
Shares;
(i) The execution, delivery and performance of this Plan will have been
duly
authorized prior to the Closing Date by all necessary action, if any, on the
part of the Board, on behalf of the Surviving Fund, and this Plan will
constitute
a valid and binding obligation of the Surviving Fund, enforceable in
accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors
rights and to general equity principles;
(j) The Surviving Fund Shares to be issued and delivered to the Acquired
Fund, for the account of the Acquired Fund Shareholders, pursuant to the
terms
of this Plan, will on the Closing Date have been duly authorized and, when so
issued and delivered, will be duly and validly issued Surviving Fund Shares,
and,
subject to the qualifications set forth in the Xxxxxxx Xxxxx Trusts
Declaration
of Trust, will be fully paid and non-assessable by the Surviving Fund;
(k) On the Closing Date, all Federal and other tax returns, dividend
reporting
forms, and other tax-related reports of the Surviving Fund required by law
to
have been filed by such date (including any extensions) shall have been filed
and
are or will be correct in all material respects, and all Federal and other
taxes
shown as due or required to be shown as due on said returns and reports shall
have
been paid or provision shall have been made for the payment thereof, and to
the
best of the Surviving Funds knowledge no such return is currently under
audit and
no assessment has been asserted with respect to such returns;
(l) For each taxable year of its operation (including the taxable year
that
includes the Closing Date), the Surviving Fund has met (or will meet) the
requirements of Subchapter M of the Code for qualification as a regulated
investment company, has been eligible to (or will be eligible to) and has
computed (or will compute) its federal income tax under Section 852 of the
Code, and has distributed all of its investment company taxable income and
net
capital gain (as defined in the Code) for periods ending prior to the
Closing
Date.
(m) The information to be furnished by the Surviving Fund for use in the
registration statements, information statements and other documents that may
be necessary in connection with the transactions contemplated hereby, shall
be
accurate and complete in all material respects and shall comply in all
material respects with Federal securities and other laws and regulations
thereunder applicable thereto; and
(n) The Information Statement to be included in the Registration
Statement
(and any amendment or supplement thereto), insofar as it relates to the
Surviving Fund and the Surviving Fund Shares, will, from the effective date
of the Registration Statement through the Closing Date (i) 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, provided, however, that the representations and warranties of
this
subparagraph (n) shall not apply to statements in or omissions from the
Information Statement and the Registration Statement made in reliance upon
and in conformity with information that was furnished by the Acquired Fund
for use therein, and (ii) 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.
5. Covenants of the Surviving Fund and the Acquired Fund
5.1. The Surviving Fund and the Acquired Fund 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 the
declaration
and payment of customary dividends and distributions, and any other
distribution
that may be advisable.
5.2. The Acquired Fund covenants that the Surviving Fund Shares to be
issued
hereunder are not being acquired for the purpose of making any distribution
thereof, other than in accordance with the terms of this Plan.
5.3. The Acquired Fund will assist the Surviving Fund in obtaining such
information as the Surviving Fund reasonably requests concerning the
beneficial
ownership of the Acquired Funds shares.
5.4. Subject to the provisions of this Plan, the Surviving Fund and the
Acquired Fund will each take, or cause to be taken, all action, and do or
cause to be done all things, reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Plan.
5.5. The Acquired Fund has provided the Surviving Fund with information
reasonably necessary for the preparation of the Information Statement
(referred
to in subparagraph 4.1(p)) to be included in a Registration Statement on
Form
N-14, in compliance with the 1933 Act, the 1934 Act and the 0000 Xxx.
5.6. As soon as is reasonably practicable after the Closing, the Acquired
Fund
will make a liquidating distribution to its respective shareholders
consisting
of the Surviving Fund Shares received at the Closing.
5.7. The Surviving Fund and the Acquired Fund shall each use their
reasonable
best efforts to fulfill or obtain the fulfillment of the conditions
precedent to
effect the transactions contemplated by this Plan as promptly as
practicable.
Feb
5.8. Xxxxxxx Sachs Trust, on behalf of the Acquired Fund, covenants that
it
will, from time to time, as and when reasonably requested by the Surviving
Fund,
execute and deliver or cause to be executed and delivered all such
assignments
and other instruments, and will take or cause to be taken such further action
as
Xxxxxxx Xxxxx Trust, on behalf of the Surviving Fund, may reasonably deem
necessary or desirable in order to vest in and confirm (a) Xxxxxxx Xxxxx
Trusts,
on behalf of the Acquired Fund, title to and possession of the Surviving
Fund
Shares to be delivered hereunder, and (b) Xxxxxxx Sachs Trusts, on behalf of
the
Surviving Fund, title to and possession of all the Assets and otherwise to
carry
out the intent and purpose of this Plan.
5.9. The Surviving Fund will use all reasonable efforts to obtain the
approvals
and authorizations required by the 1933 Act, the 1940 Act and such of the
state
blue sky or securities laws as may be necessary in order to continue its
operations
after the Closing Date.
6. Conditions Precedent to Obligations of the Acquired Fund
The obligations of Xxxxxxx Xxxxx Trust, on behalf of the Acquired Fund, to
consummate the transactions provided for herein shall be subject, at Xxxxxxx
Sachs Trusts election, to the performance by Xxxxxxx Xxxxx Trust, on behalf
of
the Surviving Fund, of all the obligations to be performed by it hereunder
on or
before the Closing Date, and, in addition thereto, the following further
conditions:
6.1. All representations and warranties of Xxxxxxx Sachs Trust, on behalf
of the
Surviving Fund, contained in this Plan 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 Plan, as of the Closing Date, with the same force and
effect
as if made on and as of the Closing Date;
6.2. Xxxxxxx Xxxxx Trust, on behalf of the Surviving Fund, shall have
delivered
to the Acquired Fund a certificate executed in the name of the Surviving
Fund by
its President or Vice President and its Treasurer or Assistant Treasurer,
in a form
reasonably satisfactory to the Acquired Fund, and dated as of the Closing
Date, to
the effect that the representations and warranties of Xxxxxxx Sachs Trust,
on behalf
of the Surviving Fund, made in this Plan are true and correct at and as of
the Closing
Date, except as they may be affected by the transactions contemplated by this
Plan,
and as to such other matters as Xxxxxxx Xxxxx Trust shall reasonably request;
6.3. Xxxxxxx Sachs Trust, on behalf of the Surviving Fund, shall have
performed all
of the covenants and complied with all of the provisions required by this
Plan to be
performed or complied with by Xxxxxxx Xxxxx Trust, on behalf of the Surviving
Fund,
on or before the Closing Date; and
6.4. The Acquired Fund and the Surviving Fund shall have agreed on the
number of
full and fractional Surviving Fund Shares to be issued in connection with the
Reorganization after such number has been calculated in accordance with
paragraph 1.1.
7. Conditions Precedent to Obligations of the Surviving Fund
The obligations of Xxxxxxx Sachs Trust, on behalf of the Surviving Fund, to
complete
the transactions provided for herein shall be subject, at Xxxxxxx Xxxxx
Trusts
election, to the performance by Xxxxxxx Sachs Trust, on behalf of the Acquired
Fund,
of all of 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 Xxxxxxx Xxxxx Trust, on behalf
of the
Acquired Fund, contained in this Plan 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 Plan, as of the Closing Date, with the same force and
effect
as if made on and as of the Closing Date;
7.2. Xxxxxxx Sachs Trust, on behalf of the Acquired Fund, shall have
delivered
to the Surviving Fund a statement of the Acquired Funds Assets and
Liabilities,
as of the Closing Date, certified by the Treasurer of the Acquired Fund;
7.3. Xxxxxxx Xxxxx Trust, on behalf of the Acquired Fund, shall have
delivered
to the Surviving Fund a certificate executed in the name of the Acquired
Fund by
its President or Vice President and its Treasurer or Assistant Treasurer,
in a form
reasonably satisfactory to the Surviving Fund and dated as of the Closing Date,
to
the effect that the representations and warranties of Xxxxxxx Sachs Trust,
on behalf
of the Acquired Fund, made in this Plan are true and correct at and as of the
Closing
Date, except as they may be affected by the transactions contemplated by this
Plan,
and as to such other matters as Xxxxxxx Xxxxx Trust shall reasonably request;
7.4. Xxxxxxx Sachs Trust, on behalf of the Acquired Fund, shall have
performed
all of the covenants and complied with all of the provisions required by this
Plan
to be performed or complied with by Xxxxxxx Xxxxx Trust, on behalf of the
Acquired
Fund, on or before the Closing Date;
7.5. The Acquired Fund shall have declared and paid a distribution or
distributions
prior to the Closing that, together with all previous distributions, shall
have the
effect of distributing to its shareholders (i) all of its investment company
taxable
income and all of its net realized capital gains, if any, for the period
from the
close of its last fiscal year to 4:00 p.m. Eastern time on the Closing; and
(ii) any
undistributed investment company taxable income and net realized capital
gains from
any period to the extent not otherwise already distributed; and
7.6. The Acquired Fund and the Surviving Fund shall have agreed on the
number of
full and fractional Surviving Fund Shares to be issued in connection with the
Reorganization after such number has been calculated in accordance with
paragraph 1.1.
8. Further Conditions Precedent to Obligations of the Surviving Fund
and the
Acquired Fund
If any of the conditions set forth below have not been satisfied on or before
the
Closing Date with respect to Xxxxxxx Sachs Trust, on behalf of the Acquired
Fund,
or Xxxxxxx Xxxxx Trust, on behalf of the Surviving Fund, the other party to
this
Plan (or in the case of Paragraph 8.1, either party to this Plan) shall, at
its
option, not be required to consummate the transactions contemplated by this
Plan:
8.1. On the Closing Date no action, suit or other proceeding shall be
pending
or, to either partys knowledge, threatened 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 Plan or the transactions contemplated herein;
8.2. All consents of other parties and all other consents, orders and
permits of
Federal, state and local regulatory authorities deemed necessary by each party
to
permit consummation, in all material respects, of the transactions contemplated
hereby
shall have been obtained, except where failure to obtain any such consent,
order or
permit would not involve a risk of a material adverse effect on the assets or
properties of the Surviving Fund or the Acquired Fund, provided that either
party
hereto may for itself waive any of such conditions;
8.3. The Registration Statement (and the Information Statement included
therein)
shall have become effective under the 1933 Act and no stop orders suspending
the
effectiveness thereof shall have been issued and, to the best knowledge of
the
parties hereto, no investigation or proceeding for that purpose shall have
been
instituted or be pending, threatened or contemplated under the 1933 Act;
and
8.4. The parties shall have received the opinion of counsel to the parties
substantially to the effect that based upon certain facts, assumptions, and
representations, the transactions contemplated by this Plan shall constitute
a
tax-free reorganization for Federal income tax purposes. The delivery of such
opinion is conditioned upon receipt by counsel to the parties of
representations
it shall request of the parties. Notwithstanding anything herein to the
contrary,
the parties may not waive the condition set forth in this paragraph 8.4.
9. Indemnification
9.1. Xxxxxxx Sachs Trust, out of the Surviving Funds assets and property,
agrees to indemnify and hold harmless the Acquired Fund from and against any
and all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquired Fund may become subject, insofar as
such loss, claim, damage, liability or expense (or actions with respect
thereto) arises out of or is based on any breach by the Surviving Fund of
any of its representations, warranties, covenants or agreements set forth
in this Plan.
9.2. Xxxxxxx Xxxxx Trust, out of the Acquired Funds assets and property,
agrees to indemnify and hold harmless the Surviving Fund from and against
any and all losses, claims, damages, liabilities or expenses (including,
without limitation, the payment of reasonable legal fees and reasonable
costs of investigation) to which the Surviving Fund may become subject,
insofar as such loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on any breach by the Acquired
Fund of any of its representations, warranties, covenants or agreements
set forth in this Plan.
10. Brokerage Fees and Expenses
10.1. The Surviving Fund and the Acquired Fund represent and warrant to
each other that there are no brokers or finders entitled to receive any
payments in connection with the transactions provided for herein, other
than any brokerage fees and expenses incurred in connection with the
Reorganization.
10.2. The expenses relating to the proposed Reorganization will be borne
by Xxxxxxx Sachs Asset Management, L.P. The costs of the Reorganization shall
include, but not be limited to, costs associated with obtaining any necessary
order of exemption from the 1940 Act, if any, preparation, printing and
distributing the Registration Statement and Information Statement, legal
fees, accounting fees, securities registration fees and brokerage costs,
trading taxes and other transaction costs associated with portfolio
adjustments. Notwithstanding any of the foregoing, expenses will in any
event be paid by the party directly incurring such expenses if and to
the extent that the payment by another person of such expenses would result
in the disqualification of such party as a regulated investment company
within the meaning of Section 851 of the Code.
11. Entire Agreement; Survival of Warranties
11.1. Each party to this agreement agrees that it has not made any
representation, warranty or covenant, not set forth herein, and that
this Plan constitutes the entire agreement between the parties.
11.2. The representations, warranties and covenants contained in
this Plan or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder. The covenants to be performed after the Closing and the
obligations of the Acquired Fund and Surviving Fund in Sections 9.1 and
9.2 shall survive the Closing.
12. Termination
This Plan may be terminated and the transactions contemplated hereby may
be abandoned by resolution of the Board at any time prior to the Closing
Date, if circumstances should develop that, in the opinion of the Board,
make proceeding with the Plan inadvisable.
13. Amendments
This Plan may be amended, modified or supplemented in such manner as may
be deemed necessary or advisable by the authorized officers of Xxxxxxx
Xxxxx Trust, on behalf of the Funds.
14. Notices
Any notice, report, statement or demand required or permitted by any
provisions of this Plan shall be in writing and shall be given by facsimile,
electronic delivery (i.e., e-mail), personal service or prepaid or certified
mail addressed to the Funds, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Xxxxxxxx X. Xxxxx, Esq., Secretary, in each case with a copy to Dechert LLP,
Xxx Xxxxxxxxxxxxx Xxxxx, 00xx Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, Attn: Xxxxxxxx X.X. Xxxxxx, Esq.
15. Headings; Governing Law; Assignment; Limitation of Liability
15.1. The Article and paragraph headings contained in this Plan are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Plan.
15.2. This Plan shall be governed by and construed in accordance with
the laws of the State of New York without regard to its principles of
conflicts of laws.
15.3. This Plan 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 party.
Nothing herein expressed or implied is intended or shall be construed to
confer upon or give any person, firm or corporation, other than the parties
hereto and their respective successors and assigns, any rights or remedies
under or by reason of this Plan. Except as expressly provided otherwise
in this Plan, the parties hereto will bear the expenses relating to the
Reorganization as set forth in Section 10.2 as mutually agreed upon.
IN WITNESS WHEREOF, each of the parties hereto has caused this Plan to be
executed as of the date above first written.
XXXXXXX XXXXX TRUST XXXXXXX SACHS TRUST
On behalf of the Surviving Fund: On behalf of the Acquired
Fund:
Xxxxxxx Xxxxx International Small Cap Insights Fund Xxxxxxx Sachs
International Small Cap Fund
By: By:
Name: Name:
Title: Title:
Xxxxxxx Xxxxx Asset Management, L.P. agrees to the provisions set forth in
Sections 10.2 and 15.3 of this Plan.
XXXXXXX SACHS ASSET MANAGEMENT,
L.P.
By:
Name:
Title:
Schedule A
Acquired Fund Surviving Fund
Class A ? Class A
Class C ? Class C
Service ? Class A
Institutional ? Institutional
Class IR ? Class IR
Class R6
The Acquired Fund does not offer Class R6 Shares. The Surviving Fund does
not offer Service Shares. The Acquired Funds Service Class shareholders
will receive Class A Shares of the Surviving Fund.
