AGREEMENT AND PLAN OF CONVERSION AND TERMINATION
This AGREEMENT AND PLAN OF CONVERSION AND TERMINATION ("Agreement") is made
as of this 27th day of September, 2001, among The Unified Funds, an Ohio
business trust ("Unified"), on behalf of the Taxable Money Market Fund, a series
of Unified ("Old Fund"), and AmeriPrime Advisors Trust, an Ohio business trust
("AmeriPrime"), on behalf of its Liquid Green Money Market Fund series ("New
Fund"), and Unified Investment Advisers, Inc. as to paragraph 5 only. Old Fund
and New Fund are sometimes referred to herein individually as a "Fund" and
collectively as the "Funds"; and Unified and AmeriPrime are sometimes referred
to herein individually as a "Trust" and collectively as the "Trusts". All
agreements, representations, actions, and obligations described herein made or
to be taken or undertaken by a Fund are made and shall be taken or undertaken by
Unified on behalf of Old Fund and by AmeriPrime on behalf of New Fund.
Old Fund intends to convert from a series of Unified to a series of
AmeriPrime -- through a reorganization within the meaning of section 368(a)(1)
of the Internal Revenue Code of 1986, as amended ("Code"). Old Fund desires to
accomplish such conversion by transferring all its assets to New Fund (which is
being established solely for the purpose of acquiring such assets and continuing
Old Fund's business) in exchange solely for voting shares of beneficial interest
in New Fund ("New Fund Shares") and New Fund's assumption of Old Fund's
liabilities, followed by the constructive distribution of the New Fund Shares
pro rata to the holders of shares of beneficial interest in Old Fund ("Old Fund
Shares") in exchange therefore, all on the terms and conditions set forth in
this Agreement (which is intended to be, and is adopted as, a "plan of
reorganization" within the meaning of the regulations under section 368 of the
Code ("Regulations"). All such transactions are referred to herein as the
"Reorganization."
In consideration of the mutual promises herein contained, the parties agree as
follows:
1. Plan of Conversion and Termination.
1.1. Old Fund agrees to assign, sell, convey, transfer, and deliver all of
its assets described in paragraph 1.2 ("Assets") to New Fund. New Fund agrees in
exchange therefor (a) to issue and deliver to Old Fund the number of full and
fractional (rounded to the third decimal place) New Fund Shares equal to the
number of full and fractional Old Fund Shares then outstanding and (b) to assume
all of Old Fund's liabilities described in paragraph 1.3 ("Liabilities"). Such
transactions shall take place at the Closing (as defined in paragraph 2.1).
1.2. The Assets shall include, without limitation, all cash, cash
equivalents, securities, receivables (including interest and dividends
receivable), claims and rights of action, rights to register shares under
applicable securities laws, books and records, deferred and prepaid expenses
shown as assets on Old Fund's books, and other property owned by Old Fund at the
Effective Time (as defined in paragraph 2.1).
1.3. The Liabilities shall include, without limitation, all of Old Fund's
liabilities, debts, obligations, and duties of whatever kind or nature, whether
absolute, accrued, contingent, or otherwise, whether or not determinable at the
Effective Time, and whether or not specifically referred to herein.
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1.4. At the Effective Time (or as soon thereafter as is reasonably
practicable), (a) the New Fund Share issued pursuant to paragraph 4.4 shall be
redeemed by New Fund for $1.00 and (b) Old Fund shall constructively distribute
the New Fund Shares received by it pursuant to paragraph 1.1 to Old Fund's
shareholders of record, determined as of the Effective Time (collectively,
"Shareholders" and each individually, a "Shareholder"), in exchange for their
Old Fund Shares. Such distribution shall be accomplished by AmeriPrime's
transfer agent ("Transfer Agent") opening accounts on New Fund's share transfer
books in the Shareholders' names and transferring such New Fund Shares thereto.
Each Shareholder's account shall be credited with the respective pro rata number
of full and fractional (rounded to the third decimal place) New Fund Shares due
that Shareholder. All outstanding Old Fund Shares, including those represented
by certificates, shall simultaneously be canceled on Old Fund's share transfer
books. New Fund shall not issue certificates representing the New Fund Shares in
connection with the Reorganization.
1.5. As soon as reasonably practicable after distribution of the New Fund
Shares pursuant to paragraph 1.4 (but in all events within six months after the
Effective Time), Old Fund shall be terminated and Old Fund shall promptly take
any further actions in connection therewith as required by applicable law.
1.6. Any transfer taxes payable on issuance of New Fund Shares in a name
other than that of the registered holder on Old Fund's books of the Old Fund
Shares constructively exchanged therefor shall be paid by the person to whom
such New Fund Shares are to be issued, as a condition of such transfer.
1.7. Any reporting responsibility of Old Fund to a public authority is and
shall remain its responsibility up to and including the date on which it is
terminated.
2. Closing.
2.1. The Reorganization, together with related acts necessary to consummate
the same ("Closing"), shall occur at Unified's principal office on such date as
the parties may agree. All acts taking place at the Closing shall be deemed to
take place simultaneously as of the Trusts' close of business on the date
thereof or at such other time as the parties may agree ("Effective Time").
2.2. Unified shall deliver to AmeriPrime at the Closing a schedule of the
Assets as of the Effective Time, which shall set forth for all portfolio
securities included therein, their adjusted tax basis and holding period by lot.
Old Fund's custodian shall deliver at the Closing a certificate of an authorized
officer stating that (a) the Assets held by the custodian will be transferred to
New Fund at the Effective Time and (b) all necessary taxes in conjunction with
the delivery of the Assets, including all applicable federal and state stock
transfer stamps, if any, have been paid or provision for payment has been made.
2.3. Unified's transfer agent shall deliver to AmeriPrime at the Closing a
certified list of the Shareholders' names and addresses and the number of
outstanding Old Fund Shares owned by each Shareholder, all as of the Effective
Time certified by an officer of Unified. AmeriPrime's Transfer Agent shall
deliver at the Closing a certificate as to the opening on New Fund's share
transfer books of accounts in the Shareholders' names. AmeriPrime shall issue
and
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deliver a confirmation to Unified evidencing the New Fund Shares to be credited
to Old Fund at the Effective Time or provide evidence satisfactory to Unified
that such shares have been credited to Old Fund's account on such books. At the
Closing, each party shall deliver to the other such bills of sale, checks,
assignments, stock certificates, receipts, or other documents as the other party
or its counsel may reasonably request.
2.4. Each Trust shall deliver to the other at the Closing a certificate
executed in its name by its President or a Vice President in form and substance
satisfactory to the recipient and dated the Effective Time, to the effect that
the representations and warranties it made in this Agreement are true and
correct at the Effective Time except as they may be affected by the transactions
contemplated by this Agreement.
3. Representations, Warranties, Covenants and Agreements.
3.1. Old Fund represents, warrants, covenants and agrees as follows:
3.1.1. Unified is a business trust duly organized, validly existing, and in
good standing under the laws of the State of Ohio and its
Declaration of Trust has been duly filed in the office of the
Secretary of State thereof;
3.1.2. Unified is duly registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940
Act"), and such registration is in full force and effect;
3.1.3. Old Fund is a duly established and designated series of Unified;
3.1.4. At the Closing, Old Fund will have good and marketable title to the
Assets and full right, power, and authority to sell, assign,
transfer, and deliver the Assets free of any liens or other
encumbrances; and upon delivery and payment for the Assets, New Fund
will acquire good and marketable title thereto;
3.1.5. New Fund Shares are not being acquired for the purpose of making any
distribution thereof, other than in accordance with the terms hereof;
3.1.6. Old Fund (not including its predecessor, the Vintage Taxable Money
Market Fund (the "Predecessor Fund")), qualified for treatment as a
regulated investment company under Subchapter M of the Code ("RIC")
for each past taxable year since it commenced operations and Old
Fund will continue to meet all the requirements for such
qualification for its current taxable year (and the Assets will be
invested at all times through the Effective Time in a manner that
ensures compliance with the foregoing); Old Fund (not including the
Predecessor Fund) has no earnings and profits accumulated in any
taxable year in which the provisions of Subchapter M did not apply
to it; and Old Fund (not including the Predecessor Fund) has made
all distributions for each such
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past taxable year that are necessary to avoid the imposition of
federal excise tax or have paid or provided for the payment of any
excise tax imposed for any such year;
3.1.7. Unified is unaware of any plan or intention of Shareholders to
redeem, sell, or otherwise dispose of (a) any portion of their Old
Fund Shares before the Reorganization to any person "related"
(within the meaning of section 1.368-1(e)(3) of the Regulations) to
either Fund or (b) any portion of the New Fund Shares to be received
by them in the Reorganization to any person "related" (within such
meaning) to New Fund. Unified does not anticipate dispositions of
those shares at the time of or soon after the Reorganization to
exceed the usual rate and frequency of redemptions of shares of Old
Fund as an open-end investment company. Consequently, Unified
expects that the percentage of Shareholder interests, if any, that
will be disposed of as a result of or at the time of the
Reorganization will be de minimis;
3.1.8. The Liabilities were incurred by Old Fund or Predecessor Fund in the
ordinary course of its business and are associated with the Assets;
3.1.9. Old Fund is not under the jurisdiction of a court in a "title 11 or
similar case" (within the meaning of section 368(a)(3)(A) of the
Code);
3.1.10. Not more than 25% of the value of Old Fund's total assets
(excluding cash, cash items, and U.S. government securities) is
invested in the stock and securities of any one issuer, and not
more than 50% of the value of such assets is invested in the stock
and securities of five or fewer issuers;
3.1.11. As of the Effective Time, Old Fund will not have outstanding any
warrants, options, convertible securities, or any other type of
rights pursuant to which any person could acquire Old Fund Shares;
3.1.12. Old Fund is not in violation of, and the execution and delivery of
this Agreement and consummation of the transactions contemplated
hereby will not conflict with or violate, Ohio law or any provision
of Unified's Declaration of Trust or By-Laws or of any agreement,
instrument, lease, or other undertaking to which Unified is a party
or by which it is bound or result in the acceleration of any
obligation, or the imposition of any penalty, under any agreement,
judgment, or decree to which Unified is a party or by which it is
bound;
3.1.13. Except as otherwise disclosed in writing to and accepted by
AmeriPrime, all material contracts and other commitments of or
applicable to Old Fund (other than this Agreement and investment
contracts) will be terminated, or provision for discharge of any
liabilities of Old Fund thereunder will be made, at or prior to the
Effective Time, without either Fund incurring any liability or
penalty with respect thereto and without diminishing or
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releasing any rights Old Fund may have had with respect to actions
taken or omitted to be taken by any other party thereto prior to
the Closing;
3.1.14. Except as otherwise disclosed in writing to and accepted by
AmeriPrime, no litigation, administrative proceeding, or
investigation of or before any court or governmental body is
presently pending or (to Unified's knowledge) threatened against
Unified with respect to Old Fund or any of its properties or assets
that, if adversely determined, would materially and adversely
affect Old Fund's financial condition or the conduct of its
business; and Old Fund knows of no facts that might form the basis
for any such litigation, proceeding or investigation, and Unified
is not a party to or subject to the provisions of any order,
decree, or judgment of any court or governmental body that
materially or adversely affects its business or its ability to
consummate the transactions contemplated hereby;
3.1.15. The execution, delivery, and performance of this Agreement have
been duly authorized as of the date hereof by all necessary action
on the part of Unified's Trustees and this Agreement will
constitute a valid and legally binding obligation of Old Fund,
enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws relating to or
affecting creditors' rights and by general principles of equity;
3.1.16. No governmental consents, approvals, authorizations, or filings are
required under the 1933 Act, the Securities Exchange Act of 1934,
as amended ("1934 Act"), or the 1940 Act for the execution or
performance of this Agreement by Unified;
3.1.17. During the five-year period ending at the Effective Time, (a)
neither Old Fund, Predecessor Fund nor any person "related" (within
the meaning of section 1.368(e)(3) of the Regulations) to Old Fund
or Predecessor Fund will have acquired Old Fund Shares or
Predecessor Fund shares, as applicable, with consideration other
than New Fund Shares, Old Fund Shares or Predecessor Shares, except
for shares redeemed in the ordinary course of Old Fund's or
Predecessor Fund's business as an open-end investment company as
required by section 22(e) of the 1940 Act, and (b) no distributions
will have been made with respect to Old Fund Shares or Predecessor
Fund shares (other than normal, regular dividend distributions made
pursuant to Old Fund's and Predecessor Fund's historic dividend-
paying practice), either directly or through any transaction,
agreement, or arrangement with any other person, except for
dividends qualifying for the deduction for dividends paid (as
defined in section 561 of the Code) referred to in sections 852(a)
(1) and 4892(c)(1)(a) of the Code;
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3.1.18. Old Fund does not invest in options or futures, forward, or foreign
currency contracts; and
3.1.19. Predecessor Fund "claimed" classification as an association taxable
as a corporation, and neither Old Fund nor Predecessor Fund has
ever elected otherwise.
3.2. New Fund represents, warrants, covenants and agrees as follows:
3.2.1. AmeriPrime is a business trust duly organized, validly existing, and
in good standing under the laws of the State of Ohio;
3.2.2. AmeriPrime is duly registered as an open-end management investment
company under the 1940 Act and such registration is in full force
and effect;
3.2.3. Before the Effective Time, New Fund will be a duly established and
designated series of AmeriPrime;
3.2.4. New Fund has not commenced operations and will not commence
operations until after the Closing; nor does New Fund have any
liabilities;
3.2.5. Prior to the Effective Time, there will be no issued and outstanding
shares in New Fund or any other securities issued by New Fund,
except as provided in paragraph 4.4;
3.2.6. No consideration other than New Fund Shares (and New Fund's
assumption of the Liabilities) will be issued in exchange for the
Assets in the Reorganization;
3.2.7. The New Fund Shares to be issued and delivered to Old Fund hereunder
will, at the Effective Time, have been duly authorized and, when
issued and delivered as provided herein, will be duly and validly
issued and outstanding shares of New Fund, fully paid and
non-assessable;
3.2.8. New Fund will be a "fund" as defined in section 851(g)(2) of the
Code and will meet all the requirements to qualify for treatment as
a RIC for its taxable year in which the Reorganization occurs and it
intends to continue to meet all such requirements for the next
taxable year;
3.2.9. The execution, delivery, and performance of this Agreement have been
duly authorized as of the date hereof by all necessary action on the
part of AmeriPrime's Board of Trustees and this Agreement will
constitute a valid and legally binding obligation of New Fund,
enforceable in
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accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, and similar laws relating to or affecting creditors'
rights and by general principles of equity;
3.2.10. New Fund has no plan or intention to issue additional New Fund
Shares following the Reorganization except for shares issued in the
ordinary course of its business as a series of an open-end investment
company; nor is there any plan or intention for New Fund, or any
person "related" (within the meaning of section 1.368-1(e)(3) of the
Regulations) to New Fund, to acquire - during the five-year period
beginning at the Effective Time, either directly or through any
transaction, agreement, or arrangement with any other person - with
consideration other than New Fund Shares, any New Fund Shares issued
to the Shareholders pursuant to the Reorganization, except for
redemptions in the ordinary course of New Fund's business as a series
of an open-end investment company as required by section 22(e) of the
1940 Act;
3.2.11. New Fund (a) will actively continue Old Fund's "historic
business" (within the meaning of section 1.368-1(d)(2) of the
Regulations); (b) will use a significant portion of Old Fund's
"historic business assets" (within the meaning of section
1.368-1(d)(3) of the Regulations) in a business; (c) has no plan or
intention to sell or otherwise dispose of any of the Assets, except
for dispositions made in the ordinary course of that business and
dispositions necessary to maintain its qualification as a RIC,
although in the ordinary course of its business New Fund will
continuously review its investment portfolio (as Old Fund did before
the Reorganization) to determine whether to retain or dispose of
particular securities, including those included in the Assets; and (d)
expects to retain substantially all the Assets in the same form as it
receives them in the Reorganization, unless and until subsequent
investment circumstances suggest the desirability of change or it
becomes necessary to make dispositions thereof to maintain such
qualification;
3.2.12. There is no plan or intention for New Fund to be dissolved or
merged into another business trust or corporation or "fund" thereof
(within the meaning of section 851(g)(2) of the Code) following the
Reorganization;
3.2.13. Immediately after the Reorganization, (a) not more than 25% of
the value of New Fund's total assets (excluding cash, cash items, and
U.S. government securities) will be invested in the stock and
securities of any one issuer and (b) not more than 50% of the value of
such assets will be invested in the stock and securities of five or
fewer issuers;
3.2.14. New Fund is not in violation of, and the execution and
delivery of this Agreement and consummation of the transactions
contemplated hereby will not conflict with or violate, Ohio law or any
provision of AmeriPrime's Trust Instrument or By-Laws or of any
agreement, instrument, lease, or other undertaking to which AmeriPrime
is a party or by which it is bound or result in the acceleration of
any obligation, or the imposition of any penalty, under any agreement,
judgment, or decree to which AmeriPrime is a party or by which it is
bound;
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3.2.15. With the exception of the pending post effective amendment, no
governmental consents, approvals, authorizations, or filings are
required under the 1933 Act, the Securities Exchange Act of 1934, as
amended ("1934 Act"), or the 1940 Act for the execution or performance
of this Agreement by AmeriPrime; and
3.2.16 For the period beginning at the Effective Time of the
Reorganization and ending not less than four years thereafter,
AmeriPrime shall provide or cause to be provided, liability coverage
for the trustees and officers of Unified which covers the actions of
such trustees and officers of Unified for the period they served as
such and is at least comparable to the liability coverage currently
applicable to the trustees and officers of Unified. AmeriPrime agrees
that all rights to indemnification existing in favor of the trustees
and officers of Unified, acting in their capacities as such, under
Unified's Declaration of Trust as in effect as of the date of this
Agreement shall survive the Reorganization as obligations of
AmeriPrime, shall continue in full force and effect without any
amendment thereto, and shall constitute rights which may be asserted
against AmeriPrime. 3.3. Each Fund represents, warrants, covenants and
agrees as follows: 3.3.1 Immediately following consummation of the
Reorganization, the Shareholders will own all the New Fund Shares and
will own such shares solely by reason of their ownership of Old Fund
Shares immediately before the Reorganization;
3.3.2 The Shareholders will pay their own expenses, if any, incurred
in connection with the Reorganization;
3.3.3. There is no intercompany indebtedness between the Funds that
was issued or acquired, or will be settled, at a discount;
3.3.4. Immediately following consummation of the Reorganization, New
Fund will hold the same assets - except for assets distributed to
shareholders in the course of its business as a RIC and assets used to
pay expenses incurred in connection with the Reorganization - and be
subject to the same liabilities that Old Fund held or was subject to
immediately prior to the Reorganization, plus any liabilities for
expenses of the parties incurred in connection with the
Reorganization. Such excepted assets, together with the amount of all
redemptions and distributions (other than regular, normal dividends)
made by Old Fund immediately preceding the Reorganization, will, in
the aggregate, constitute less than 1% of its net assets;
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3.3.5. The fair market value of the New Fund Shares received by each
Shareholder will be approximately equal to the fair market value of
its Old Fund Shares constructively surrendered in exchange therefor;
3.3.6. The fair market value of the Assets on a going concern basis
will equal or exceed the Liabilities to be assumed by New Fund and
those to which the Assets are subject;
3.3.7. None of the compensation received by any Shareholder who is an
employee of or service provider to Old Fund will be separate
consideration for, or allocable to, any of the Old Fund Shares held by
that Shareholder; none of the New Fund Shares received by any such
Shareholder will be separate consideration for, or allocable to, any
employment agreement, investment advisory agreement, or other service
agreement; and the consideration paid to any such Shareholder will be
for services actually rendered and will be commensurate with amounts
paid to third parties bargaining at arm's-length for similar services;
3.3.8. Neither Fund will be reimbursed for any expenses incurred by it
or on its behalf in connection with the Reorganization unless those
expenses are solely and directly related to the Reorganization
(determined in accordance with the guidelines set forth in Rev. Rul.
73-54, 1973-1 C.B. 187);
3.3.9. The aggregate value of the acquisitions, redemptions, and
distributions limited by subparagraphs 3.1.17 and 3.2.10 will not
exceed 50% of the value (without giving effect to such acquisitions,
redemptions, and distributions) of the proprietary interest in Old
Fund at the Effective Time; and
3.3.10 The Reorganization is being undertaken for a bona fide business
purpose (and not a purpose to avoid federal income tax).
4. Conditions Precedent.
Each Fund's obligations hereunder shall be subject to (a) performance by the
other Fund of all its obligations to be performed hereunder at or before the
Effective Time, (b) all representations and warranties of the other Fund
contained herein being true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated
hereby, as of the Effective Time, with the same force and effect as if made on
and as of the Effective Time, and (c) the further conditions that, at or before
the Effective Time:
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4.1. All necessary filings shall have been made with the SEC and state
securities authorities, and no order or directive shall have been received that
any other or further action is required to permit the parties to carry out the
transactions contemplated hereby. All consents, orders, and permits of federal,
state, and local regulatory authorities (including the SEC and state securities
authorities) deemed necessary by either Trust to permit consummation, in all
material respects, of the transactions contemplated hereby shall have been
obtained, except where failure to obtain same would not involve a risk of a
material adverse effect on the assets or properties of either Fund, provided
that either Trust may for itself waive any of such conditions.
4.2. Unified and AmeriPrime shall have received an opinion from Xxxxx,
Xxxxxxx & Xxxxx Co., L.P.A. ("BCB") that approval of the Reorganization by Old
Fund shareholders is not required under Ohio law or its Declaration of Trust.
4.3. Old Fund and New Fund shall have received an opinion from BCB as to
the federal income tax consequences mentioned below. In rendering such opinion,
BCB may rely as to factual matters, exclusively and without independent
verification, on the representations made in this Agreement, which BCB may treat
as representations made to it, or in separate letters addressed to BCB and the
certificates delivered pursuant to paragraph 2.4. Such opinion shall be
substantially to the effect that, based on the facts and assumptions stated
therein and conditioned on consummation of the Reorganization in accordance with
this Agreement, for federal income tax purposes:
4.3.1. The Reorganization will qualify as a reorganization within the
meaning of section 368(a)(1) of the Code, and each Fund will be "a
party to a reorganization" within the meaning of section 368(b) of the
Code;
4.3.2. No gain or loss will be recognized to Old Fund on the transfer
of the Assets to New Fund in exchange solely for New Fund Shares and
New Fund's assumption of the Liabilities or on the subsequent
distribution of those shares to the Shareholders, in constructive
exchange for their Old Fund Shares, in liquidation of Old Fund;
4.3.3. No gain or loss will be recognized to New Fund on its receipt
of the Assets in exchange for New Fund Shares and its assumption of
the Liabilities;
4.3.4. New Fund's basis in the Assets will be the same as Old Fund's
basis therein immediately before the Reorganization, and New Fund's
holding period for the Assets will include Old Fund's holding period
therefor;
4.3.5. A Shareholder will recognize no gain or loss on the
constructive exchange of all its Old Fund Shares solely for New Fund
Shares pursuant to the Reorganization;
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4.3.6. A Shareholder's aggregate basis in the New Fund Shares it
receives in the Reorganization will be the same as the aggregate basis
in its Old Fund Shares it constructively surrenders in exchange for
those New Fund Shares, and its holding period for those New Fund
Shares will include its holding period for those Old Fund Shares,
provided the Shareholders held those Old Fund Shares as capital assets
at the Effective Time; and
4.3.7. New Fund will succeed to and take into account the items of Old
Fund described in Code Section 381(c), including the earnings and
profits, or deficit in earnings and profits, of Old Fund as of the
date of the Reorganization. New Fund will take these items into
account subject to the conditions and limitations specified in Code
Sections 381, 382, 383 and 384 and applicable regulations thereunder.
4.4. Prior to the Closing, AmeriPrime's trustees shall have authorized the
issuance of, and New Fund shall have issued, one New Fund Share to an initial
shareholder in consideration of the payment of $1.00 for the purpose of enabling
the shareholder to vote on the matters referred to in paragraph 4.5.
4.5. AmeriPrime (on behalf of and with respect to New Fund) shall have
entered into an investment advisory agreement, a distribution agreement, and
such other agreements as are necessary for New Fund's operation as a series of
an open-end investment company. Each such agreement shall have been approved by
AmeriPrime's trustees and, to the extent required by law, by such of those
trustees who are not "interested persons" thereof (as defined in the 0000 Xxx)
and by the initial shareholder of New Fund.
At any time prior to the Closing, any of the foregoing conditions (except that
set forth in paragraph 4.2) may be waived by the trustees of either Trust if, in
their judgment, such waiver will not have a material adverse effect on the
interests of Old Fund's shareholders.
5. Expenses.
Except as otherwise provided in subparagraph 3.3.2 and subject to subparagraph
3.3.8, all expenses (including trustee meeting fees, legal fees, and tail
insurance costs) incurred in connection with the transactions contemplated by
this Agreement (regardless of whether they are consummated) will be borne by
Unified Investment Advisers, Inc.
6. Entire Agreement; Survival.
No party has made any representation, warranty, or covenant not set forth
herein, and this Agreement constitutes the entire agreement among the parties.
The representations, warranties, and covenants contained herein or in any
document delivered pursuant hereto or in connection herewith shall survive the
Closing, including the obligation of AmeriPrime to provide liability coverage
for the trustees and officers of Unified and to indemnify the trustees and
officers of Unified, in each case, pursuant to the covenants set forth in
Section 3.2.16.
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7. Amendment.
This Agreement may be amended, modified, or supplemented at any time, in such
manner as may be mutually agreed upon in writing by the parties.
8. Termination.
This Agreement may be terminated at any time at or prior to the Effective Time:
8.1. By either Fund (a) in the event of the other Fund's material breach of
any representation, warranty, or covenant contained herein to be performed at or
prior to the Effective Time, (b) if a condition to its obligations has not been
met and it reasonably appears that such condition will not or cannot be met, or
(c) if the Closing has not occurred on or before October 31, 2001; or
8.2. By the parties' mutual agreement.
Except as otherwise provided in paragraph 5, in the event of termination
under paragraphs 8.1(c) or 8.2, there shall be no liability for damages on the
part of either Fund - or the trustees or officers of either Trust - to the other
Fund.
9. Miscellaneous.
9.1. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Ohio; provided that, in the case of any
conflict between such laws and the federal securities laws, the latter shall
govern.
9.2. Nothing expressed or implied herein is intended or shall be construed
to confer upon or give any person, firm, trust, or corporation any rights or
remedies under or by reason of this Agreement other than: (a) the trustees and
officers of Unified with respect to the covenants set forth in Section 3.2.16
hereof; and (b) the parties and their respective successors and assigns.
9.3. Neither the authorization of this Agreement by each Trust's trustees
nor the execution and delivery of this Agreement by each Trust's officers shall
be deemed to have been made by them individually or to impose any liability on
any of them or any shareholder of either Trust personally but shall bind only
the assets and property of the respective Funds, as provided in each Trust's
Declaration of Trust.
9.4 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12
IN WITNESS WHEREOF, each party has caused this Agreement to be executed and
delivered by its duly authorized officer as of the day and year first written
above.
The Unified Funds
on behalf of its Taxable Money Market Fund
series
By:_____________________________________
Title:___________________________________
AmeriPrime Advisors Trust
on behalf of its Liquid Green Money Market
Fund series
By:______________________________________
Title:____________________________________
Unified Investment Advisers, Inc.
As to Paragraph 5
By:______________________________________
Title:____________________________________
