Agreement and Plan of Reorganization
This AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is
made as of this 16th day of August, 2007, by and among ▇▇▇▇
▇▇▇▇▇ Partners Variable Equity Trust, a Maryland business trust
(the "Trust"), with its principal place of business at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on behalf of its series ▇▇▇▇
▇▇▇▇▇ Partners Variable Appreciation Portfolio (the "Acquiring
Fund"), and on behalf of its series ▇▇▇▇ ▇▇▇▇▇ Partners Variable
Multiple Discipline Portfolio - Large Cap Growth and Value (the
"Acquired Fund") and, solely for purposes of paragraph 10.2
hereof, ▇▇▇▇ ▇▇▇▇▇ Partners Fund Advisor, LLC.
WHEREAS, each of the Acquired Fund and the Acquiring Fund is
a series of the Trust, an open-end management investment company
registered pursuant to the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, it is intended that, for United States Federal
income tax purposes (i) the transactions contemplated by this
Agreement constitute a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code") and (ii) this Agreement constitute a plan of
reorganization within the meaning of Section 368 of the Code and
Treasury Regulations Section 1.368-2(g);
WHEREAS, the reorganization will consist of (1) the sale,
assignment, conveyance, transfer and delivery of all of the
property and assets of the Acquired Fund to the Acquiring Fund
in exchange solely for newly-created Class II shares of
beneficial interest of the Acquiring Fund (the "Acquiring Fund
Shares") corresponding to the outstanding shares of beneficial
interest of the Acquired Fund (the "Acquired Fund Shares"), as
described herein, (2) the assumption by the Acquiring Fund of
all liabilities of the Acquired Fund, and (3) the distribution
of the Acquiring Fund Shares to the shareholders of the Acquired
Fund in redemption of the Acquired Fund Shares and termination
of the Acquired Fund as a series of the Trust, as provided
herein (the "Reorganization");
WHEREAS, the Board of Trustees of the Trust (the "Board") has
determined, with respect to the Acquiring Fund, that the sale,
assignment, conveyance, transfer and delivery of all of the
property and assets of the Acquired Fund for Acquiring Fund
Shares and the assumption of all liabilities of the Acquired
Fund by the Acquiring Fund is in the best interests of the
Acquiring Fund and its shareholders; and
WHEREAS, the Board has determined, with respect to the
Acquired Fund, that the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the Acquired
Fund for Acquiring Fund Shares and the assumption of all
liabilities of the Acquired Fund by the Acquiring Fund is in the
best interests of the Acquired Fund and its shareholders and
that the interests of the existing shareholders of the Acquired
Fund will not be diluted as a result of this transaction;
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 ACQUIRING FUND
IN EXCHANGE FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL
ACQUIRED FUND LIABILITIES AND THE TERMINATION OF THE ACQUIRED
FUND
1.1 Subject to requisite approvals and the other terms and
conditions herein set forth and on the basis of the
representations and warranties contained herein, the Trust, on
behalf of the Acquired Fund, agrees to sell, assign, convey,
transfer and deliver all of its property and assets, as set
forth in paragraph 1.2, to the Acquiring Fund, and the Trust, on
behalf of the Acquiring Fund, agrees in exchange therefor:
(a) to deliver to the Acquired Fund the number, determined in
accordance with paragraph 1.4, of full and fractional Acquiring
Fund Shares corresponding to the class of the Acquired Fund
Shares as of the time and date set forth in paragraph 3.1; and
(b) to assume all liabilities of the Acquired Fund. Such
transactions shall take place on a closing date as undesignated
shares of the Acquired Fund correspond to the newly-created
Class II shares of the Acquiring Fund, and the term Acquiring
Fund Shares should be read to include such class of shares of
the Acquiring Fund.
1.2 The property and assets of the Trust, attributable to the
Acquired Fund, to be sold, assigned, conveyed, transferred and
delivered to and acquired by the Trust, on behalf of the
Acquiring Fund, shall consist of all assets and property of
every kind and nature of the Acquired Fund, including, without
limitation, all rights, receivables (including dividend,
interest and other receivables), cash, cash equivalents, claims
(whether absolute or contingent, known or unknown), securities,
commodities and futures interests, good will and other
intangible property, any deferred or prepaid expenses and all
interests, rights, privileges and powers, the Acquired Fund owns
at the Valuation Date (as defined in paragraph 2.1)
(collectively, "Assets"). The Trust, on behalf of the Acquiring
Fund, shall assume all of the liabilities and obligations of the
Acquired Fund, including, without limitation, all
indemnification obligations of the Acquired Fund with respect to
the current and former members of the Board and officers of the
Trust, whether accrued or contingent, known or unknown, existing
at the Valuation Date (collectively, "Liabilities"). The
Acquired Fund will sell, assign, convey, transfer and deliver to
the Trust, on behalf of the Acquiring Fund, any rights, stock
dividends, or other securities received by the Acquired Fund
after the Closing Date as stock dividends or other distributions
on or with respect to the property and assets transferred, which
rights, stock dividends, and other securities shall be deemed
included in the property and assets transferred to the Trust, on
behalf of the Acquiring Fund, at the Closing Date and shall not
be separately valued, in which case any such distribution that
remains unpaid as of the Closing Date shall be included in the
determination of the value of the assets of the Acquired Fund
acquired by the Trust, on behalf of the Acquiring Fund.
1.3 The Acquired Fund will make reasonable efforts to
discharge all of its known Liabilities prior to the Valuation
Date.
1.4 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 substantially all of its investment
company taxable income as defined in the Code (computed without
regard to any deduction for dividends paid) and realized net
capital gain as defined in the Code (after deduction for any
available capital loss carryover), if any, for all tax periods
ending on or before the Closing Date (and treating the current
taxable year as ending on the Closing Date) such that the
Acquired Fund will have no tax liability under Section 852 or
Section 4982 for the current and any prior tax periods.
1.5 Immediately following the actions contemplated by
paragraph 1.1, the Trust shall take such actions necessary to
complete the reorganization of the Acquired Fund. To complete
the reorganization, the Trust, on behalf of the Acquired Fund,
shall (a) distribute to the latter's shareholders of record with
respect to the Acquired Fund Shares as of the Closing Date
("Acquired Fund Shareholders"), on a pro rata basis, the
Acquiring Fund Shares received by the Trust, on behalf of the
Acquired Fund, pursuant to paragraph 1.1 in redemption of shares
of the Acquired Fund in accordance with Maryland law and (b)
terminate the Acquired Fund as a series of the Trust. Such
distribution shall be accomplished, with respect to the Acquired
Fund Shares, by the transfer of the corresponding Acquiring Fund
Shares then credited to the account of the Acquired Fund on the
books of the Acquiring Fund to open accounts on the share
records of the Acquiring Fund in the names of the Acquired Fund
Shareholders. The aggregate net asset value of the Acquiring
Fund Shares to be so credited to Acquired Fund Shareholders
shall be equal to the aggregate net asset value of the Acquired
Fund Shares owned by Acquired Fund Shareholders on the Closing
Date. The Acquiring Fund shall not issue certificates
representing any class of Acquiring Fund Shares in connection
with such exchange.
1.6 Ownership of Acquiring Fund Shares will be shown on the
books of the Acquiring Fund's transfer agent.
1.7 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
Securities and Exchange Commission ("Commission"), any state
securities commission, and any federal, state or local tax
authorities or any other relevant regulatory authority, is and
shall remain the responsibility of the Trust, on behalf of the
Acquired Fund. The Trust shall fully cooperate to the extent
necessary or desirable for these responsibilities to be
discharged.
2. VALUATION
2.1 The value of the Assets and the amount of the Liabilities
shall be determined as of the time for calculation of net asset
value as set forth in the then-current prospectus for the
Acquired Fund, and after the declaration of any dividends by the
Acquired Fund, on the Closing Date (such time and date being
hereinafter called the "Valuation Date"), computed using the
valuation procedures established by the Board. All computations
of value and amounts shall be made by (a) State Street Bank and
Trust Company, in its capacity as accounting agent for the
Acquired Fund, or (b) in the case of securities subject to fair
valuation, in accordance with the valuation procedures adopted
in good faith by the Board. All computations of value and
amounts pursuant to this paragraph 2.1 shall be subject to
confirmation by the Acquiring Fund's independent registered
public accounting firm.
2.2. The net asset value per share of Acquiring Fund Shares
shall be determined to the nearest full cent on the Valuation
Date, using the valuation procedures established by the Board.
All computations of value shall be made by (a) State Street Bank
and Trust Company, in its capacity as accounting agent for the
Acquiring Fund, or (b) in the case of securities subject to fair
valuation, in accordance with the valuation procedures adopted
in good faith by the Acquiring Entity Board. All computations of
value pursuant to this paragraph 2.2 shall be subject to
confirmation by the Acquired Fund's independent registered
public accounting firm.
2.3 The number of Acquiring Fund Shares to be issued in
exchange for the Assets shall be determined by dividing the
value of the net assets with respect to Acquired Fund Shares,
determined using the same valuation procedures referred to in
paragraph 2.1, by the net asset value of an Acquiring Fund
Share, determined using the same valuation procedures referred
to in paragraph 2.2.
3. CLOSING AND CLOSING DATE
3.1 Subject to the terms and conditions set forth herein, the
Closing Date shall be November 9, 2007, or such other date as
the parties may agree. All acts taking place at the closing of
the transactions provided for in this Agreement (the "Closing")
shall be deemed to take place simultaneously as of 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 or such later time on that date as
the Acquired Fund's net asset value is calculated in accordance
with paragraph 2 and after the declaration of any dividends. The
Closing shall be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such
other time and/or place as the parties may agree.
3.2 The Trust shall direct State Street Bank and Trust
Company (the "Custodian") to transfer ownership of the Assets
from the accounts of the Acquired Fund that the Custodian
maintains as custodian for the Acquired Fund to the accounts of
the Acquiring Fund that the Custodian maintains as custodian for
the Acquiring Fund and to deliver to the Trust, at the Closing,
a certificate of an authorized officer stating that the Assets
of the Acquired Fund are being delivered as of the Closing Date.
The Acquired Fund shall deliver a certificate stating that all
necessary taxes in connection with the delivery of the Assets of
the Acquired Fund, including all applicable federal and state
stock transfer stamps, if any, have been paid or provision for
payment has been made.
3.3 The Trust shall direct PFPC Inc., in its capacity as
transfer agent for the Acquired Fund ("Transfer Agent"), to
deliver to the Trust at the Closing a certificate of an
authorized officer stating that its records contain the name and
address of each Acquired Fund Shareholder and the number and
percentage ownership of the Acquired Fund Shares owned by each
such shareholder immediately prior to the Closing. The Acquiring
Fund shall deliver to the Secretary of the Trust, on behalf of
the Acquired Fund, a confirmation evidencing that (a) the
appropriate number of Acquiring Fund Shares have been credited
to the Acquired Fund's account on the books of the Acquiring
Fund pursuant to paragraph 1.1 prior to the actions contemplated
by paragraph 1.5 and (b) the appropriate number of Acquiring
Fund Shares have been credited to the accounts of the Acquired
Fund Shareholders on the books of the Acquiring Fund pursuant to
paragraph 1.5. At the Closing, each party shall deliver to the
other party such bills of sale, checks, assignments, share
certificates, if any, receipts or other documents as the 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 Acquiring 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
accurate appraisal of the value of the net assets of the
Acquiring Fund or the Acquired Fund is impracticable (in the
judgment of the Board), the Closing Date shall be postponed
until the first Friday (that is also a 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 in Schedule 4.1 of
this Agreement, the Trust, on behalf of the Acquired Fund,
represents and warrants as follows:
(a) The Acquired Fund is duly established as a series of
the Trust, which is a business trust duly organized, validly
existing and in good standing under the laws of the State of
Maryland, with power under its Declaration of Trust, as
amended and/or supplemented (the "Declaration"), to own all
of its assets and to carry on its business as it is being
conducted as of the date hereof. The Trust is duly qualified
to do business as a foreign corporation in each jurisdiction
in which the conduct of its business makes such qualification
necessary except where the failure to so qualify would not
have a material adverse effect on the condition (financial or
otherwise), business, properties, net assets or results of
operations of the Trust. The Trust has all necessary federal,
state and local authorization to carry on its business as now
being conducted and to fulfill the terms of this Agreement,
except as set forth in paragraph 4.1(c).
(b) The Trust is a registered open-end management
investment company, and its registration with the Commission
as an investment company under the 1940 Act, and the
registration of Acquired Fund Shares under the Securities Act
of 1933, as amended ("1933 Act"), is 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 may be required under the
1933 Act, the Securities Exchange Act of 1934 ("1934 Act"),
the ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ securities laws and the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act.
(d) The current prospectus and statement of additional
information of the Acquired Fund (true and correct copies of
which have been delivered to the Acquiring Fund) and each
prospectus and statement of additional information of the
Acquired Fund used during the three (3) years prior to the
date of this Agreement 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 Commission 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, the 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,
convey, transfer and deliver such Assets hereunder free of
any liens or other encumbrances, and upon delivery and
payment for the Assets, the Trust, on behalf of the Acquiring
Fund, will acquire good and marketable title thereto, subject
to no restrictions on the full transfer thereof, excluding
such restrictions as might arise under the 1933 Act.
(f) The Acquired Fund is not engaged currently, and the
execution, delivery and performance of this Agreement by the
Trust, on behalf of the Acquired Fund, will not result, in a
material violation of Maryland law or of the Declaration or
the by-laws of the Trust, or of any agreement, indenture,
instrument, contract, lease or other undertaking to which the
Trust, on behalf of the Acquired Fund, is a party or by which
it is bound, and the execution, delivery and performance of
this Agreement by the Trust, on behalf of the Acquired Fund,
will not result in the acceleration of any material
obligation, or the imposition of any material penalty, under
any agreement, indenture, instrument, contract, lease,
judgment or decree to which the 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 Agreement, certain investment
contracts, including options, futures, swaps and forward
contracts, the indemnification agreements of the current and
former members of the Board, and those contracts listed in
Schedule 4.1) will terminate without liability to the
Acquired Fund on or prior to the Closing Date. Each contract
listed in Schedule 4.1 is a valid, binding and enforceable
obligation of the Acquired Fund and, to the Acquired Fund's
knowledge, the other parties thereto (assuming due
authorization, execution and delivery by the other parties
thereto) and the assignment by the Acquired Fund to the
Acquiring Fund of each such contract will not result in the
termination of such contract, any breach or default
thereunder by the Acquired Fund or the imposition of any
penalty thereunder.
(h) No litigation or administrative proceeding or
investigation of or before any court or governmental body is
presently pending or, to the Trust's knowledge, threatened
against the Trust, with respect to 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 the Acquired Fund's business. The Trust, on
behalf of the Acquired Fund, 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 Fund's business or the Trust's ability to
consummate the transactions herein contemplated on behalf of
the Acquired Fund.
(i) The Statement of Assets and Liabilities, Statements
of Operations and Changes in Net Assets and Schedule of
Investments of the Acquired Fund as at the last day of and
for the most recently completed fiscal year of the Acquired
Fund prior to the date of this Agreement, have been audited
by KPMG LLP, an 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 (true and correct
copies of which have been furnished to the Trust) present
fairly, in all material respects, the financial condition of
the Acquired Fund as of such date and for such period in
accordance with GAAP, and there are no known contingent,
accrued or other 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 that are not
disclosed therein.
(j) Since the last day of the most recently completed
fiscal year of the Acquired Fund prior to the date of this
Agreement, there has not been any material adverse change in
the Acquired Fund's 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 for money borrowed maturing more than one year
from the date such indebtedness was incurred. 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 Acquired Fund liabilities, or the redemption of
Acquired Fund Shares by shareholders of the Acquired Fund
shall not constitute a material adverse change.
(k) The Acquired Fund is a separate series of the Trust
that is treated as a corporation separate from any and all
other series of the Trust under Section 851(g) of the Code.
(l) 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 Trust's knowledge, no such
return is currently under audit and no assessment has been
asserted with respect to such returns.
(m) For each taxable year of its operation, the Acquired
Fund shall have met the requirements of Subchapter M of the
Code for qualification and treatment as a "regulated
investment company," shall have elected to be treated as
such, shall have been eligible to compute its federal income
tax under Section 852 of the Code and shall have computed its
federal income tax under Section 852 of the Code. For any
taxable year not yet completed as of the end of the day on
the Closing Date, the Trust reasonably expects that the
Acquiring Fund, as successor to the Acquired Fund, will be
able to meet the requirements of Subchapter M of the Code for
qualification and treatment as a regulated investment company
and will be eligible to compute its federal income tax under
Section 852 of the Code.
(n) All issued and outstanding Acquired Fund Shares are,
and on the Closing Date will be, duly authorized and validly
and legally issued and outstanding, fully paid and non-
assessable by the Trust and have been offered and sold in any
state, territory or the District of Columbia in compliance in
all material respects with applicable registration
requirements of all applicable federal and state securities
laws. All of the issued and outstanding Acquired Fund Shares
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 of
the Acquired Fund Shares, nor is there outstanding any
security convertible into any of the Acquired Fund Shares.
(o) The execution, delivery and performance of this
Agreement, and the transactions contemplated herein, have
been duly authorized by all necessary action on the part of
the Board, on behalf of the Acquired Fund, and this Agreement
constitutes a valid and binding obligation of the Trust, on
behalf 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.
(p) The proxy statement and prospectus ("Proxy
Statement") to be included in the Registration Statement (as
defined in paragraph 5.6), insofar as it relates to the
Acquired Fund, from the effective date of the Registration
Statement through the date of the meeting of shareholders of
the Acquired Fund contemplated therein and on the Closing
Date, will (i) not contain any statement which, at the time
and in light of the circumstances under which it is made, is
false or misleading with respect to any material fact, or
which omits to state any material fact necessary in order to
make the statements therein not false or misleading (provided
that this representation and warranty shall not apply to
statements in or omissions from the Proxy Statement made in
reliance upon and in conformity with information that was
furnished by the Trust 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. The information to be furnished by the Acquired
Fund for use in registration statements and other documents
filed or to be filed with any federal, state or local
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.
4.2 Except as has been fully disclosed to the Trust in
Schedule 4.2 to this Agreement, the Trust, on behalf of the
Acquiring Fund, represents and warrants to the Acquired Fund as
follows:
(a) The Acquiring Fund is duly established as a series of
the Trust, which is a business trust duly organized, validly
existing and in good standing under the laws of the State of
Maryland with the power under its Declaration to own all of
its assets and to carry on its business as contemplated by
this Agreement. The Trust is duly qualified to do business as
a foreign trust in each jurisdiction in which the conduct of
its business makes such qualification necessary except where
the failure to so qualify would not have a material adverse
effect on the condition (financial or otherwise), business,
properties, net assets or results of operations of the Trust.
The Trust has all necessary federal, state and local
authorization to carry on its business as now being conducted
and to fulfill the terms of this Agreement except as
described in paragraph 4.2(c).
(b) The Trust is a registered open-end management
investment company, and its registration with the Commission
as an investment company under the 1940 Act, and the
registration of the class of Acquiring Fund Shares under the
1933 Act, is in full force and effect or will be in full
force and effect as of the Closing Date.
(c) No consent, approval, authorization, or order of any
court or governmental authority is required for the
consummation by the Acquiring Fund of the transactions
contemplated herein, except such as may be required under the
1933 Act, the 1934 Act, the 1940 Act, state securities laws
and the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.
(d) The current prospectus and statement of additional
information of the Acquiring Fund (true and correct copies of
which have been delivered to the Acquired Fund) and each
prospectus and statement of additional information of the
Acquiring Fund used during the three (3) years prior to the
date of this Agreement 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 Commission 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) The Acquiring Fund is not engaged currently, and the
execution, delivery and performance of this Agreement by the
Trust, on behalf of the Acquiring Fund, will not result, in a
material violation of Maryland law or the Declaration or the
by-laws of the Trust, or of any agreement, indenture,
instrument, contract, lease or other undertaking to which the
Trust, on behalf of the Acquiring Fund, is a party or by
which it is bound, and the execution, delivery and
performance of this Agreement by the Trust, on behalf of the
Acquiring Fund, will not result in the acceleration of any
material obligation, or the imposition of any material
penalty, under any agreement, indenture, instrument,
contract, lease, judgment or decree to which the Trust, on
behalf of the Acquiring Fund, is a party or by which it is
bound.
(f) No litigation or administrative proceeding or
investigation of or before any court or governmental body is
presently pending or, to the Trust's knowledge, threatened
against the Trust, with respect to the Acquiring Fund, or any
of its properties or assets, that, if adversely determined,
would materially and adversely affect its financial condition
or the conduct of the Acquiring Fund's business. The Trust,
on behalf of the Acquiring Fund, 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 Acquiring Fund's business or the Trust's ability
to consummate the transactions herein contemplated on behalf
of the Acquiring Fund.
(g) The Statement of Assets and Liabilities, Statements
of Operations and Changes in Net Assets and Schedule of
Investments of the Acquiring Fund as at the last day of and
for the most recently completed fiscal year of the Acquiring
Fund prior to the date of this Agreement, have been audited
by KPMG LLP, an independent registered public accounting
firm, and are in accordance with GAAP consistently applied,
and such statements (true and correct copies of which have
been furnished to the Acquired Entity) present fairly, in all
material respects, the financial condition of the Acquiring
Fund as of such date and for such period in accordance with
GAAP, and there are no known contingent, accrued or other
liabilities of the Acquiring Fund required to be reflected on
a balance sheet (including the notes thereto) in accordance
with GAAP as of such date that are not disclosed therein.
(h) Since the last day of the most recently completed
fiscal year of the Acquiring Fund prior to the date of this
Agreement, there has not been any material adverse change in
the Acquiring Fund's financial condition, assets, liabilities
or business, other than changes occurring in the ordinary
course of business, or any incurrence by the Acquiring Fund
of indebtedness for money borrowed maturing more than one
year from the date such indebtedness was incurred. For the
purposes of this subparagraph (h), a decline in net asset
value per share of Acquiring Fund Shares due to declines in
market values of securities held by the Acquiring Fund, the
discharge of Acquiring Fund liabilities, or the redemption of
Acquiring Fund Shares by shareholders of the Acquiring Fund
shall not constitute a material adverse change.
(i) On the Closing Date, all federal and other tax
returns, dividend reporting forms and other tax-related
reports of the Acquiring 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 Acquiring Entity's knowledge,
no such return is currently under audit and no assessment has
been asserted with respect to such returns.
(j) For each taxable year of its operation (including the
taxable year that includes the Closing Date), the Acquiring
Fund has met (or will meet) the requirements of Subchapter M
of Chapter 1 of the Code for qualification and treatment as a
"regulated investment company," has elected to be treated as
such, and has been (or will be) eligible to compute and has
computed (or will compute) its federal income tax under
Section 852 of the Code, and will have distributed (or will
distribute pursuant to the provisions of Section 855 of the
Code) substantially all of (i) its net tax-exempt income,
(ii) its investment company taxable income (computed without
regard to any deduction for dividends paid) (as defined in
the Code) and (iii) any net capital gain (after reduction for
any capital loss carryover) (as defined in the Code) for
taxable years ending prior to the Closing Date such that for
all those years the Acquiring Fund will have no tax liability
under Section 852 or Section 4982.
(k) Upon consummation of the Reorganization, all issued
and outstanding Acquiring Fund Shares, including those
Acquiring Fund Shares to be delivered by the Acquiring Fund
to the Acquired Fund in accordance with paragraph 1.4, will
be duly authorized and validly and legally issued and
outstanding, fully paid and non-assessable by the Trust and
will have been offered and sold in any state, territory or
the District of Columbia in compliance in all material
respects with applicable registration requirements of all
applicable federal and state securities laws. The Acquiring
Fund does not have outstanding any options, warrants or other
rights to subscribe for or purchase any Acquiring Fund
Shares, nor is there outstanding any security convertible
into any Acquiring Fund Shares.
(l) The execution, delivery and performance of this
Agreement, and the transactions contemplated herein, have
been duly authorized by all necessary action on the part of
the Board, on behalf of the Acquiring Fund, and this
Agreement constitutes a valid and binding obligation of the
Trust, on behalf of the Acquiring Fund, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights and to
general equity principles.
(m) The Proxy Statement to be included in the
Registration Statement, insofar as it relates to the
Acquiring Fund and the Acquiring Fund Shares, from the
effective date of the Registration Statement through the date
of the meeting of shareholders of the Acquired Fund
contemplated therein and on the Closing Date, will (i) not
contain any statement which, at the time and in the light of
the circumstances under which it is made, is false or
misleading with respect to any material fact, or which omits
to state any material fact necessary to make the statements
therein not false or misleading (provided that this
representation and warranty shall not apply to statements in
or omissions from the Proxy Statement made in reliance upon
and in conformity with information that was furnished by the
Trust 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.
The information to be furnished by the Acquiring Fund for use
in registration statements and other documents filed or to be
filed with any federal, state or local 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
applicable thereto.
(j) The Acquiring Fund is a separate series of the Trust
that is treated as a corporation separate from any and all
other series of the Trust under Section 851(g) of the Code.
5. COVENANTS
The Trust, on behalf of the Acquired Fund and the Acquiring
Fund, hereby further covenants as follows:
5.1 The Acquired Fund and the Acquiring Fund each will
operate its business in the ordinary course and shall comply in
all material respects with all applicable laws, rules and
regulations 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
other distributions and any other distribution that may be
advisable.
5.2 The Trust will call and hold a meeting of the
shareholders of the Acquired Fund to consider and act upon this
Agreement and to take all other action necessary to obtain
approval of the transactions contemplated herein.
5.3 The Acquiring Fund Shares to be acquired by the Acquired
Fund hereunder are not being acquired for the purpose of making
any distribution thereof, other than in accordance with the
terms of this Agreement.
5.4 The Trust, on behalf of the Acquired Fund, will obtain
such information as the Acquiring Fund reasonably requests
concerning the beneficial ownership of the Acquired Fund Shares.
5.5 Subject to the provisions of this Agreement, the Trust,
on behalf of each of the Acquiring Fund and the Acquired Fund,
will take, or cause to be taken, all action, and do or cause to
be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by
this Agreement.
5.6 The Trust, on behalf of the Acquiring Fund, shall prepare
and file a Registration Statement on Form N-14 in compliance
with the 1933 Act, the 1934 Act and the 1940 Act and the rules
and regulations thereunder with respect to the Reorganization
(the "Registration Statement"). The Trust, on behalf of the
Acquired Fund, will provide to the Trust, on behalf of the
Acquiring Fund, such information regarding the Acquired Fund as
may be reasonably necessary for the preparation of the
Registration Statement.
5.7 The Trust, on behalf of each of the Acquiring Fund and
the Acquired Fund, will use its reasonable best efforts to
fulfill or obtain the fulfillment of the conditions precedent to
effect the transactions contemplated by this Agreement as
promptly as practicable.
5.8 The Trust, on behalf of the Acquired Fund, will, to the
extent necessary, 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 the Trust,
on behalf of the Acquiring Fund, may reasonably deem necessary
or desirable in order to vest in and confirm (a) the Trust's
title to and possession of the Acquiring Fund Shares to be
delivered hereunder and (b) the Trust's title to and possession
of all the Assets and to otherwise to carry out the intent and
purpose of this Agreement.
5.9 The Trust, on behalf of the Acquiring 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
operate after the Closing Date.
5.10 The Trust shall not change the Declaration, the
prospectus or statement of additional information so as to
restrict permitted investments for the Acquiring Fund, except as
required by the Commission prior to the Closing.
5.10 The Acquired Fund and the Acquiring Fund will each
report the Reorganization as a reorganization on their federal
income tax returns for their respective taxable years in which
the Reorganization occurs, including filing any and all
statements required by Treas. Reg. 1.368-3.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRUST, ON BEHALF
OF THE ACQUIRED FUND
The obligations of the Trust, on behalf of the Acquired Fund,
to consummate the transactions provided for herein shall be
subject to the following conditions:
6.1 All representations and warranties of the Trust, on
behalf of the Acquiring Fund, 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.
6.2 The Trust, on behalf of the Acquiring Fund, shall have
performed all of the covenants and complied with all of the
provisions required by this Agreement to be performed or
complied with by the Trust, on behalf of the Acquiring Fund, on
or before the Closing Date.
6.3 The Trust, on behalf of the Acquiring Fund, shall have
executed and delivered an assumption of the Liabilities and all
such other agreements and instruments as the Trust may
reasonably deem necessary or desirable in order to vest in and
confirm (a) the Acquired Fund's title to and possession of the
Acquiring Fund Shares to be delivered hereunder and (b) the
Trust's assumption of all of the Liabilities and to otherwise to
carry out the intent and purpose of this Agreement.
6.4 The Trust, on behalf of the Acquiring Fund, shall have
delivered to the Acquired Fund a certificate executed in the
name of the Trust, on behalf of the Acquiring Fund, by the
Trust's President or Vice President and its Treasurer or
Assistant Treasurer, in a form reasonably satisfactory to the
Trust and dated as of the Closing Date, as to the matters set
forth in paragraphs 6.1 and 6.2 and as to such other matters as
the Trust shall reasonably request.
6.5 The Trust, on behalf of each of the Acquiring Fund and
the Acquired Fund, shall have agreed on the number of full and
fractional Acquiring 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 TRUST, ON BEHALF
OF THE ACQUIRING FUND
The obligations of the Trust, on behalf of the Acquiring
Fund, to consummate the transactions provided for herein shall
be subject to the following conditions:
7.1 All representations and warranties of the Trust, on
behalf of the Acquired Fund, 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 The Trust, on behalf of the Acquired Fund, shall have
performed all of the covenants and complied with all of the
provisions required by this Agreement to be performed or
complied with by the Trust, on behalf of the Acquired Fund, on
or before the Closing Date.
7.3 The Trust, on behalf of the Acquired Fund, shall have
delivered to the Acquiring Fund a Statement of Assets and
Liabilities of the Acquired Fund as of the Closing Date,
including a schedule of investments, certified by the Treasurer
of the Trust, on behalf of the Acquired Fund. The Trust, on
behalf of the Acquired Fund, shall have executed and delivered
all such assignments and other instruments of transfer as the
Acquiring Fund may reasonably deem necessary or desirable in
order to vest in and confirm (a) the Acquired Fund's title to
and possession of the Acquiring Fund Shares to be delivered
hereunder and (b) the Acquiring Fund's title to and possession
of all the Assets and to otherwise to carry out the intent and
purpose of this Agreement.
7.4 The Trust, on behalf of the Acquired Fund, shall have
delivered to the Acquiring Fund a certificate executed in the
name of the Trust, on behalf of the Acquired Fund, by the
Trust's President or Vice President and its Treasurer or
Assistant Treasurer, in a form reasonably satisfactory to the
Acquiring Fund and dated as of the Closing Date, as to the
matters set forth in paragraphs 7.1 and 7.2 and as to such other
matters as the Trust shall reasonably request.
7.5 The Trust, on behalf of each of the Acquired Fund and the
Acquiring Fund, shall have agreed on the number of full and
fractional Acquiring 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 THE OBLIGATIONS OF THE TRUST
ON BEHALF OF THE ACQUIRING 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 each of
the Acquired Fund and the Acquiring Fund, the Trust shall be
entitled, at its option, to refuse to consummate the
transactions contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein
shall have been approved by the requisite vote of the holders of
the outstanding shares of the Acquired Fund in accordance with
the provisions of the Declaration, the by-laws of the Trust, and
Maryland law, and certified copies of the resolutions evidencing
such approval shall have been delivered to the Acquiring Fund.
Notwithstanding anything herein to the contrary, the Trust may
not waive the condition set forth in this paragraph 8.1.
8.2 On the Closing Date, no court or governmental agency of
competent jurisdiction shall have issued any order that remains
in effect and that restrains or enjoins the Trust, with respect
to each of the Acquired Fund or the Acquiring Fund, from
completing the transactions contemplated by this Agreement.
8.3 All consents of other parties and all other consents,
orders and permits of federal, state and local regulatory
authorities deemed necessary by the Trust 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 Acquiring Fund or the Acquired Fund, provided
that the Trust may for itself waive any of such conditions.
8.4 The Registration Statement 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.
8.5 The parties shall have received the opinion of ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, substantially to
the effect that, based upon certain facts, assumptions and
representations and upon certifications made by the Trust, on
behalf of each of the Acquired Fund and the Acquiring Fund, and
its authorized officers, (i) the Reorganization will constitute
a reorganization within the meaning of Section 368(a) of the
Code, and the Acquired Fund and the Acquiring Fund will each be
a "party to a reorganization" within the meaning of
Section 368(b) of the Code; (ii) no gain or loss will be
recognized by the Acquiring Fund upon receipt of the Assets
solely in exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the Acquired Fund
Liabilities; (iii) the basis in the hands of the Acquiring Fund
in the Assets will be the same as the basis of the Assets in the
hands of the Acquired Fund immediately prior to the transfer,
increased by the amount of gain (or decreased by the amount of
loss), if any, required to be recognized by the Acquired Fund
upon the transfer; (iv) the holding periods of the Assets in the
hands of the Acquiring Fund will include the periods during
which the Assets were held by the Acquired Fund (except where
investment activities of the Acquiring Fund have the effect of
reducing or eliminating the holding period with respect to an
asset); (v) no gain or loss will be recognized by the Acquired
Fund upon the transfer of the Assets to the Acquiring Fund in
exchange for the Acquiring Fund Shares and the assumption by the
Acquiring Fund of the Acquired Fund Liabilities, or upon the
distribution of the Acquiring Fund Shares by the Acquired Fund
to its shareholders in liquidation except for (A) any gain or
loss that may be recognized with respect to contracts subject to
Section 1256 of the Code and (B) any gain that may be recognized
on the transfer of stock in a "passive foreign investment
company" as defined in Section 1297(a) of the Code; (vi) no gain
or loss will be recognized by the Acquired Fund shareholders
upon the exchange of their Acquired Fund Shares solely for the
Acquiring Fund Shares as part of the Reorganization; (vii) the
aggregate basis of the Acquiring Fund Shares that each Acquired
Fund shareholder receives in connection with the transaction
will be the same as the aggregate basis of his or her Acquired
Fund Shares exchanged therefor; and (viii) an Acquired Fund
shareholder's holding period for his or her Acquiring Fund
Shares will include the period for which he or she held the
Acquired Fund Shares exchanged therefor, provided that he or she
held the Acquired Fund Shares as capital assets on the date of
the exchange. The delivery of such opinion is conditioned upon
the receipt by ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP of representations
it shall request of the Trust, on behalf of each of the
Acquiring Fund and the Acquired Fund. Notwithstanding anything
herein to the contrary, the Trust may not waive the condition
set forth in this paragraph 8.5.
8.6 The Trust, on behalf of each of the Acquiring Fund and
the Acquired Fund, shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in a form reasonably
satisfactory to the Trust, and dated as of the Closing Date,
substantially to the effect that, based upon certain facts and
certifications made by the Trust, on behalf of each of the
Acquiring Fund and the Acquired Fund, and its authorized
officers: (a) the Trust is a business trust validly existing
under the laws of the State of Maryland; (b) the Trust, with
respect to each of the Acquiring Fund and the Acquired Fund, has
the power to carry on its business an open-end investment
company registered under the 1940 Act; (c) this Agreement has
been duly authorized, executed and, so far as known to such
counsel, delivered by the Trust, on behalf of each of the
Acquiring Fund and the Acquired Fund, and constitutes a valid
and legally binding obligation of the Trust, on behalf of each
of the Acquiring Fund and the Acquired Fund, enforceable against
the Trust in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and laws of general applicability relating to or
affecting creditors' rights and to general equity principles
(whether in a proceeding under equity or at law); provided that
such counsel shall be entitled to state that it expresses no
opinion with respect to the validity, binding effect or
enforceability of any contractual provisions purporting to
provide indemnification of any person for any claims, damages,
liabilities or expenses which may be limited by any applicable
federal or state securities laws or as a matter of public
policy; (d) the execution and delivery of this Agreement did
not, and the transfer of the Assets for Acquiring Fund Shares,
the issuance of the Acquiring Fund Shares and the assumption by
the Acquiring Fund of the Liabilities in exchange for the
transfer of the Assets pursuant to this Agreement will not,
violate the Declaration or the by-laws of the Trust; (e) to the
knowledge of such counsel, all regulatory or court consents,
authorizations, approvals, orders or filings required to be
obtained or made by the Trust, on behalf of each of the
Acquiring Fund and the Acquired Fund, under the federal laws of
the United States or the laws of the State of Maryland for the
transfer of the Assets for Acquiring Fund Shares, the issuance
of the Acquiring Fund Shares and the assumption by the Acquiring
Fund of the Liabilities in exchange for the transfer of the
Assets pursuant to this Agreement have been obtained or made,
except such as may be required under state securities or blue
sky laws as to which such counsel need express no opinion; and
(f) to the knowledge of such counsel, and without any
independent investigation, other than as disclosed on the
schedules provided by the Trust pursuant to paragraphs 4.1 and
4.2 of this Agreement, neither the Acquiring Fund nor the
Acquired Fund are subject to any litigation or administrative
proceeding that could reasonably be expected to have a
materially adverse effect on the operations of the Acquiring
Fund or the Acquired Fund. Such opinion may state that it is
solely for the benefit of the Trust and the Board. Such opinion
may contain such assumptions and limitations as shall be in the
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP appropriate to render
the opinions expressed therein. With respect to all matters of
Maryland law, such counsel shall be entitled to state that, with
the approval of the Trust, they have relied on the opinion of
▇▇▇▇▇▇▇ LLP and that their opinion is subject to the same
assumptions, qualifications and limitations with respect to such
matters as are contained in the opinion of ▇▇▇▇▇▇▇ LLP.
9. INDEMNIFICATION
9.1 The Trust, out of the Acquiring Fund's assets and
property (including any amounts paid to the Acquiring Fund
pursuant to any applicable liability insurance policies or
indemnification agreements) agrees to indemnify and hold
harmless the members of the Board and the Trust's officers 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 Trust and those members of the Board and officers may
become subject, insofar as such loss, claim, damage, liability
or expense (or actions with respect thereto) arises out of or is
based on (a) any breach by the Trust, on behalf of the Acquiring
Fund, of any of its representations, warranties, covenants or
agreements set forth in this Agreement or (b) any act, error,
omission, neglect, misstatement, materially misleading
statement, breach of duty or other act wrongfully done or
attempted to be committed by the Trust or the members of the
Board or the Trust's officers prior to the Closing Date,
provided that such indemnification by the Trust is not (i) in
violation of any applicable law or (ii) otherwise prohibited as
a result of any applicable order or decree issued by any
governing regulatory authority or court of competent
jurisdiction.
9.2 The Trust, out of the Acquired Fund's assets and property
(including any amounts paid to the Acquired Fund pursuant to any
applicable liability insurance policies or indemnification
agreements) agrees to indemnify and hold harmless the members of
the Board and the Trust's officers 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 Trust and those
members of the Board and officers may become subject, insofar as
such loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on (a) any breach by
the Trust, on behalf of the Acquired Fund, of any of its
representations, warranties, covenants or agreements set forth
in this Agreement or (b) any act, error, omission, neglect,
misstatement, materially misleading statement, breach of duty or
other act wrongfully done or attempted to be committed by the
Trust or the members of the Board or the Trust's officers prior
to the Closing Date, provided that such indemnification by the
Trust is not (i) in violation of any applicable law or
(ii) otherwise prohibited as a result of any applicable order or
decree issued by any governing regulatory authority or court of
competent jurisdiction.
10. BROKER FEES AND EXPENSES
10.1 The Trust, on behalf of each of the Acquiring Fund and
the Acquired Fund, represents and warrants that there are no
brokers or finders entitled to receive any payments in
connection with the transactions provided for herein.
10.2 ▇▇▇▇ ▇▇▇▇▇ Partners Fund Advisor, LLC will pay all the
costs associated with printing, proxy solicitation and mailing
costs of the Reorganization, and 50% of the additional out-of-
pocket costs, such as legal fees, expenses relating to the
preparation and filing of various regulatory documents, expenses
of preparing and distributing prospectus and SAI supplements,
and auditor fees. 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 or would
prevent the Reorganization from qualifying as a tax-free
reorganization.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1 The Trust, on behalf of each of the Acquiring Fund and
the Acquired Fund, agree that no party has made any
representation, warranty or covenant, on behalf of either the
Acquiring Fund or the Acquired Fund, not set forth herein and
that this Agreement constitutes the entire agreement between the
parties.
11.2 The covenants to be performed after the Closing by the
Trust, and the obligations of the Trust, on behalf of the
Acquiring Fund, in Article 9, shall survive the Closing. All
other representations, warranties and covenants contained in
this Agreement or in any document delivered pursuant hereto or
in connection herewith shall not survive the consummation of the
transactions contemplated hereunder and shall terminate on the
Closing.
12. TERMINATION
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the
Closing Date by resolution of the Board, if circumstances should
develop that, in the opinion of the Board, make proceeding with
the Agreement inadvisable with respect to the Acquiring Fund or
the Acquired Fund. Any such termination resolution to be
effective shall be promptly communicated to the other party and,
in any event, prior to the Closing Date.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in
such manner as may be deemed necessary or advisable by the
authorized officers of the Trust; provided, however, that
following the meeting of the Acquired Fund shareholders called
by the Acquired Fund pursuant to paragraph 5.2 of this
Agreement, no such amendment may have the effect of changing the
provisions for determining the number of Acquiring Fund Shares
to be issued to Acquired Fund shareholders under this Agreement
to the detriment of such shareholders without their further
approval.
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 facsimile, electronic delivery (i.e., e-mail)
personal service or prepaid or certified mail addressed to the
Trust, at its address set forth in the preamble to this
Agreement, in each case to the attention of its President.
15. HEADINGS; COUNTERPARTS; GOVERNING LAW; SEVERABILITY;
ASSIGNMENT; LIMITATION OF LIABILITY
15.1 The Article 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 and
interpreted in accordance with the internal laws of the State of
New York.
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, 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.
15.5 Consistent with the Declaration, the obligations of the
Trust with respect to each of the Acquiring Fund and the
Acquired Fund entered into in the name or on behalf of the Trust
by any of its Trustees, officers, employees or agents are made
not individually, but in such capacities, and are not binding
upon any of the Trustees, officers, employees, agents or
shareholders of the Trust, personally, but bind only the assets
of the Trust belonging to the Acquiring Fund or the Acquired
Fund, and all persons dealing with any series or funds of the
Trust must look solely to the assets of the Trust belonging to
such series or fund for the enforcement of any claims against
the Trust.
[remainder of this page left blank intentionally]
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its duly authorized officer.
▇▇▇▇ ▇▇▇▇▇ PARTNERS VARIABLE EQUITY TRUST,
on behalf of its series ▇▇▇▇ ▇▇▇▇▇ PARTNERS
VARIABLE APPRECIATION PORTFOLIO
By:
_______________________________________
____
Name: R. ▇▇▇ ▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
▇▇▇▇ ▇▇▇▇▇ PARTNERS VARIABLE EQUITY TRUST,
on behalf of its series ▇▇▇▇ ▇▇▇▇▇ PARTNERS
VARIABLE MULTIPLE DISCIPLINE PORTFOLIO--
LARGE CAP GROWTH AND VALUE
By:
_______________________________________
____
Name: R. ▇▇▇ ▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
Solely for purposes of paragraph 10.2 of the Agreement:
▇▇▇▇ ▇▇▇▇▇ PARTNERS FUND ADVISOR, LLC
By: ___________________________________________
Name: R. ▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive Officer
SCHEDULE 4.1
None.
SCHEDULE 4.2
None.
3787997.2
22
1
