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Exhibit 9(e)
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION
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Agreement and Plan of Reorganization and Liquidation ("Agreement")
dated as of May 29, 1998, by and between The Riverfront Funds, Inc., a Maryland
corporation ("Company") and The Riverfront Funds, an Ohio business trust
("Trust").
WHEREAS, Company is registered under the Investment Company Act of
1940, as amended ("1940 Act") as an open-end investment company of the
management type and has issued and outstanding shares of capital stock, par
value $.001, of the following six series: The Riverfront U.S. Government
Securities Money Market Fund ("Company Money Market Fund"), The Riverfront U.S.
Government Income Fund ("Company Government Income Fund"), The Riverfront Income
Equity Fund ("Company Income Equity Fund"), The Riverfront Balanced Fund
("Company Balanced Fund"), The Riverfront Stock Appreciation Fund ("Company
Stock Appreciation Fund") and The Riverfront Large Company Select Fund ("Company
Large Company Select Fund," and, together with each of the Company's other five
series described above, the "Acquired Series"); and
WHEREAS, On or before the Exchange Date (as defined below) Trust is
expected to become registered under the 1940 Act as an open-end investment
company of the management type, and is expected to have issued and outstanding a
nominal number of shares of beneficial interest, without par value, of the
following six series: The Riverfront U.S. Government Securities Money Market
Fund ("Trust Money Market Fund"), The Riverfront U.S. Government Income Fund
("Trust Government Income Fund"), The Riverfront Income Equity Fund ("Trust
Income Equity Fund"), The Riverfront Balanced Fund ("Trust Balanced Fund"), The
Riverfront Small Company Select Fund ("Trust Small Company Select Fund") and The
Riverfront Large Company Select Fund ("Trust Large Company Select Fund," and,
together with each of the Trust's other five series described above, the
"Acquiring Series"); and
WHEREAS, Each of the Company and the Trust has authorized the issuance
of two classes of shares, Investor A Shares and Investor B Shares, each series
of Company other than Company Money Market Fund has issued and outstanding both
Investor A Shares and Investor B Shares, each series of Trust other than Trust
Money Market Fund, on or before the Valuation Time (as defined below), is
expected to have issued and outstanding a nominal number of both Investor A
Shares and Investor B Shares, Company Money Market Fund has issued and
outstanding Investor A Shares only, and Trust Money Market Fund, on or before
the Valuation Time (as defined below), is expected to have issued and
outstanding a nominal number of Investor A Shares only; and
WHEREAS, Each of the Acquired Series plans to transfer all assets
belonging to such series, and to assign all of the liabilities belonging to such
series, to the corresponding Acquiring Series, in exchange for Investor A Shares
and Investor B Shares (Investor A Shares only in the case of Trust Money Market
Fund) of the corresponding Acquiring Series ("Acquiring Series Shares"),
followed by the constructive distribution of the Acquiring Series Shares by each
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Acquired Series to the shareholders of the Acquired Series in connection with
the dissolution of the Company and the Acquired Series, all upon the terms and
provisions of this Agreement (individually and together, the "Reorganization");
and
WHEREAS, The Acquired Series and the Acquiring Series correspond to one
another as follows: Company Money Market Fund corresponds to Trust Money Market
Fund, Company Government Income Fund corresponds to Trust Government Income
Fund, Company Income Equity Fund corresponds to Trust Income Equity Fund,
Company Balanced Fund corresponds to Trust Balanced Fund, Company Stock
Appreciation Fund corresponds to Trust Small Company Select Fund and Company
Large Company Select Fund corresponds to Trust Large Company Select Fund; and
WHEREAS, This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section 368(a)(1) of the
United States Internal Revenue Code of 1986, as amended (the "Code") for each
Acquired Series and its corresponding Acquiring Series; and
WHEREAS, The Board of Directors of the Company has determined that the
Reorganization is in the best interests of Company, and that the interests of
its shareholders will not be diluted as a result thereof; and
WHEREAS, The Trustee of the Trust has determined that the
Reorganization is in the best interests of the Trust and that the interests of
its shareholders will not be diluted as a result thereof;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto covenant and agree as follows:
1. Plan of Reorganization and Liquidation
(a) Sale of Assets, Assumption of Liabilities. Subject to the
prior approval of shareholders of Company and to the other terms and
conditions contained herein (including the condition that each Acquired
Series shall distribute to its shareholders all of its investment
company taxable income and net capital gain as described in Section
9(h) herein), Company agrees to assign, convey, transfer and deliver to
the Acquiring Series, and the Acquiring Series agree to acquire from
Company on the Exchange Date (as defined below), all of the Investments
(as defined below), cash and other assets of Company in exchange for
that number of full and fractional Acquiring Series Shares of the
Acquiring Series having an aggregate net asset value equal to the value
of all assets of Company transferred to the Acquiring Series, as
provided in Section 4, less the liabilities of Company assumed by the
Acquiring Series.
(b) Assets Acquired. The assets to be acquired by the
Acquiring Series from Company shall consist of all of Company's
property, including, without limitation, all Investments (as defined
below), cash and dividends or interest receivables which are owned by
Company and any deferred or prepaid expenses shown as an asset on the
books of Company as of the Valuation Time described in Section 4.
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(c) Liabilities Assumed. Prior to the Exchange Date Company
will endeavor to discharge or cause to be discharged, or make provision
for the payment of, all of its known liabilities and obligations. The
Acquiring Series shall assume all liabilities, expenses, costs, charges
and reserves of Company, contingent or otherwise, including liabilities
reflected in the unaudited statement of assets and liabilities of
Company as of the Valuation Time, prepared by or on behalf of Company
in accordance with generally accepted accounting principles
consistently applied from and after December 31, 1997, and including
all liabilities of the Company under its registration statement on Form
N-1A filed with the Securities and Exchange Commission ("Commission")
under the Securities Act of 1933, as amended ("1933 Act").
(d) Matters Regarding Trust. To the extent deemed necessary
and appropriate, immediately upon delivery to the Company of the
Acquiring Series Shares, the Company, as the then sole shareholder of
the Trust, shall (l) elect as trustees of the Trust the persons then
serving as directors of the Company, and (2) approve or disapprove (i)
a separate Investment Advisory Agreement between the Trust and The
Provident Bank ("Provident") with respect to each of the Acquiring
Series, (ii) a separate Sub-Investment Advisory Agreement between
Provident and XxXxxxxx, Race & Xxxxx, Inc. with respect to the Trust
Income Equity Fund, (iii) the independent accountants who currently
serve in that capacity for the Company, and (iv) such other matters as
deemed necessary and appropriate, voting in the same manner as the
shareholders of the Acquired Series have voted in connection with the
Agreement.
(e) Liquidation and Dissolution. Upon consummation of the
transactions described in Section 1(a), 1(b), 1(c) and 1(d) above,
Company shall constructively distribute in complete liquidation to its
shareholders of record as of the Exchange Date the Acquiring Series
Shares received by it, each Company shareholder of record being
entitled constructively to receive that number and class of Acquiring
Series Shares equal to the proportion which the number and class of
shares of capital stock, par value $.001, of Company held by such
shareholder bears to the total number and class of such shares of
Company outstanding on such date, and shall take such further action as
may be required, necessary or appropriate under Company's Articles of
Incorporation, Maryland law and the Code to effect the complete
liquidation and dissolution of Company. Company will fulfill all
reporting requirements under the 1940 Act, both before and after the
Reorganization.
2. Representations, Warranties and Agreements of Company. Company
represents and warrants to and agrees with Trust and the Acquiring
Series that:
(a) Company is a corporation validly existing under the laws
of the State of Maryland and has power to own all of its properties and
assets and to carry out its obligations under this Agreement.
(b) Company is registered under the 1940 Act as an open-end
investment company of the management type, and such registration has
not been revoked or rescinded and is in full force and effect. Company
has elected to qualify and has qualified, or intends to elect and
qualify, each of the Acquired Series as a regulated
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investment company under Part I of Subchapter M of the Code as of and
since its first taxable year, and each such Acquired Series qualifies,
or intends to elect and qualify, and intends to continue to qualify as
a regulated investment company for its taxable year ending upon its
liquidation. Each Acquired Series has been a regulated investment
company under such sections of the Code, or intends to elect and
qualify, at all times since its inception.
(c) The statements of assets and liabilities, including the
schedules of portfolio investments as of December 31, 1997, and the
related statements of operations for the year then ended, and
statements of changes in net assets for each of the two years in the
period then ended, for Company, such statements (for periods after
December 31, 1995) having been audited by Ernst & Young LLP,
independent auditors of Company, have been furnished to Trust. Such
statements of assets and liabilities fairly present the financial
position of Company as of such date and such statements of operations
and changes in net assets fairly reflect the results of operations and
changes in net assets for the periods covered thereby in conformity
with generally accepted accounting principles, and there are no known
material liabilities of Company as of such dates which are not
disclosed therein.
(d) The Prospectus of Company dated April 30, 1998 (the
"Company Prospectus") and its related Statement of Additional
Information dated April 30, 1998, in the forms filed under the 1933 Act
with the Commission and previously furnished to Trust, did not as of
their date and do not as of the date hereof contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(e) Except as may have been previously disclosed to Trust,
there are no material legal, administrative or other proceedings
pending or, to the knowledge of Company, threatened against Company.
(f) There are no material contracts outstanding to which
Company is a party, other than as disclosed in the Company Prospectus
and the corresponding Statement of Additional Information, and there
are no such contracts or commitments (other than this Agreement) which
will be terminated with liability to Company on or prior to the
Exchange Date.
(g) Company has no known liabilities of a material nature,
contingent or otherwise, other than those shown as belonging to it on
its statements of assets and liabilities at December 31, 1997 and those
incurred in the ordinary course of Company's business as an investment
company since that date.
(h) As used in this Agreement, the term "Investments" shall
mean Company's investments shown on the statements of assets and
liabilities at December 31, 1997 referred to in Section 2(g) hereof, as
supplemented with such changes as Company shall make after December 31,
1997 in the ordinary course of its business.
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(i) Company has filed or will file all federal and state tax
returns which, to the knowledge of Company's officers, are required to
be filed by Company and has paid or will pay all federal and state
taxes shown to be due on said returns or on any assessments received by
Company. All tax liabilities of Company have been adequately provided
for on its books, and no tax deficiency or liability of Company has
been asserted, and no question with respect thereto has been raised, by
the Internal Revenue Service or by any state or local tax authority for
taxes in excess of those already paid.
(j) As of both the Valuation Time and the Exchange Date and
except for shareholder approval and otherwise as described in Section
2(1), Company will have full right, power and authority to assign,
transfer and deliver the Investments and any other of its assets and
liabilities to be transferred to Trust and the Acquiring Series
pursuant to this Agreement. On the Exchange Date, subject only to the
delivery of the Investments and any such other assets and liabilities
as contemplated by this Agreement, Trust and the Acquiring Series will
acquire the Investments and any such other assets subject to no
encumbrances, liens or security interests in favor of any third party
creditor of Company and, except as described in Section 2(k), without
any restrictions upon the transfer thereof.
(k) No registration under the 1933 Act of any of the
Investments would be required if they were, as of the time of such
transfer, the subject of a public distribution by either of Company or
Trust, except as previously disclosed to Trust by Company prior to the
date hereof.
(l) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by Company
of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, Securities Exchange Act of 1934, as
amended (the "1934 Act"), or 1940 Act, state securities or blue sky
laws (which term as used herein shall include the laws of the District
of Columbia and of Puerto Rico) or state corporation laws.
(m) The Company will call a Special Meeting of Shareholders
("Special Meeting") to consider and act upon this Agreement, the
Reorganization and related matters. In connection with such meeting,
the Company will solicit proxies from its shareholders pursuant to
proxy solicitation materials complying in all material respects with
the 1934 Act and the Rules and Regulations of the Commission thereunder
("1934 Act Regulations") and the 1940 Act and the Rules and Regulations
of the Commission thereunder ("1940 Act Regulations").
(n) The Company will notify the Commission that the Trust will
adopt and succeed to the Company's existing registration statement on
Form N-1A (the "Registration Statement") under the 1933 Act with
respect to the shares of the Acquired Series. At the time the adoption
of such Registration Statement becomes effective, the Registration
Statement (i) will comply in all material respects with the provisions
of the 1933 Act and the Rules and Regulations of the Commission
thereunder (the "Regulations") and (ii) will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
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therein not misleading; and at the time Registration Statement becomes
effective, at the time of the Special Meeting and on the Exchange Date
(as defined below) the Company Prospectus and Statement of Additional
Information, as amended or supplemented by any amendments or
supplements filed by the Company, will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
3. Representations, Warranties and Agreements of Trust. Trust represents
and warrants to and agrees with Company that:
(a) Trust is a business trust validly existing under the laws
of the State of Ohio and has power to carry on its business as it is
now being conducted and to carry out its obligations under this
Agreement.
(b) On the Exchange Date and upon adopting and succeeding to
the Registration Statement the Trust will be registered under the 1940
Act as an open-end investment company of the management type. The
Acquiring Series expect to qualify as regulated investment companies
under Part I of Subchapter M of the Code.
(c) The Acquiring Series will have no assets or liabilities as
of the Valuation Time.
(d) There are no material legal, administrative or other
proceedings pending or, to the knowledge of Trust or its Acquiring
Series, threatened against Trust or the Acquiring Series, which assert
liability on the part of Trust or the Acquiring Series.
(e) There are no material contracts outstanding to which Trust
or the Acquiring Series is a party, other than this Agreement and
material contracts disclosed in the Registration Statement.
(f) The Trust and the Acquiring Series will file all federal
and state tax returns which, to the knowledge of Trust's officers, are
required to be filed by Trust and the Acquiring Series and will pay all
federal and state taxes shown to be due on such returns or on any
assessments received by Trust of the Acquiring Series.
(g) No consent, approval, authorization or order of any
governmental authority is required for the consummation by Trust or the
Acquiring Series of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act, 1934 Act, 1940 Act,
state securities or blue sky laws or state business trust laws.
(h) As of both the Valuation Time and the Exchange Date and
otherwise as described in Section 3(g), Trust and the Acquiring Series
will have full right, power and authority to acquire the Investments
and any other assets and assume the liabilities of Company to be
transferred to the Acquiring Series pursuant to this Agreement.
(i) In connection with the Reorganization, the Trust will
adopt and succeed to the Registration Statement. At the time the
Registration Statement becomes effective, the Registration Statement
(i) will comply in all material respects with the provisions of the
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1933 Act and the Regulations and (ii) will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and at the time the Registration Statement becomes
effective, at the time of the Special Meeting and on the Exchange Date
(as defined below) the Company Prospectus and Statement of Additional
Information, as amended or supplemented by any amendments or
supplements filed by the Company, will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(j) The Trust has no plan or intention to issue additional
Trust shares following the Reorganization except for shares issued in
the ordinary course of the Trust's business as an open-end investment
company; nor does the Trust have any plan or intention to redeem or
otherwise reacquire any Trust shares issued to Company shareholders
pursuant to the Reorganization, other than through redemptions arising
in the ordinary course of that business. The Trust will actively
continue the Company's business in the same manner that the Company
conducted it immediately before the Reorganization and has no plan or
intention to sell or otherwise dispose of any of the assets to be
acquired by the Trust in the Reorganization, except for dispositions
made in the ordinary course of its business and dispositions necessary
to maintain the status of each Acquiring Series as a regulated
investment company under Subchapter M of the Code.
(k) The Acquiring Series Shares to be issued by Trust have
been duly authorized and when issued and delivered by Trust to Company
pursuant to this Agreement will be legally and validly issued by Trust
and will be fully paid and nonassessable, and no shareholder of Trust
will have any preemptive right of subscription or purchase in respect
thereof.
(l) The issuance of Acquiring Series Shares pursuant to this
Agreement will be in compliance with all applicable federal and state
securities laws.
(m) Each Acquiring Series, upon filing of its first income
tax return at the completion of its first taxable year, will elect to
be a regulated investment company and until such time will take all
steps necessary to ensure its qualification as a regulated investment
company.
4. Exchange Date; Valuation Time. On the Exchange Date, Trust will deliver
to Company a number of Acquiring Series Shares having an aggregate net
asset value equal to the value of the assets of Company acquired by the
Acquiring Series, less the value of the liabilities of Company assumed,
determined as hereafter provided in this Section 4.
(a) The net assets of Company and each Acquired Series will be
computed as of the Valuation Time, using the valuation procedures set
forth in the Company Prospectus.
(b) The net asset value of each of the Acquiring Series Shares
will be determined to the nearest full cent as of the Valuation Time,
and shall be set at the net asset value per share of the corresponding
Acquired Series as of the Valuation Time.
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(c) The Valuation Time shall be 4:00 P.M., Eastern Standard
Time, on October 30, 1998, or such earlier or later day as may be
mutually agreed upon in writing by the parties hereto (the "Valuation
Time").
(d) The Acquiring Series shall issue its Acquiring Series
Shares to Company on one share deposit receipt registered in the name
of Company. Company shall constructively distribute in liquidation the
Acquiring Series Shares received by it hereunder pro rata to its
shareholders by redelivering such share deposit receipt to Trust's
transfer agent, which will as soon as practicable make such
modifications to the accounts for each Trust shareholder as may be
necessary and appropriate.
(e) The Acquiring Series shall assume all liabilities of
Company, whether accrued or contingent, described in subsection 1(c)
hereof in connection with the acquisition of assets and subsequent
dissolution of Company or otherwise, except that recourse for assumed
liabilities relating to an Acquired Series shall be limited to the
corresponding Acquiring Series.
5. Expenses, Fees, etc. Each of Company and Trust shall be responsible for
its respective fees and expenses of the Reorganization. The Trust will
be responsible for its organization costs. Company will be responsible
for proxy solicitation and other costs associated with the Special
Meeting.
6. Exchange Date. Delivery of the assets of Company to be transferred,
assumption of the liabilities of Company to be assumed, and the
delivery of Acquiring Series Shares to be issued shall be made at the
offices of the Company, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxx at 9:00 A.M.
on October 31, 1998, or at such other time, date, and location agreed
to by Company and Trust, the date and time upon which such delivery is
to take place being referred to herein as the "Exchange Date."
7. Special Meeting of Shareholders; Dissolution.
(a) Company agrees to call a Special Meeting of its
shareholders as soon as is practicable for the purpose of considering
the transfer of all of the assets of Company to, and the assumption of
all of the liabilities of Company by,the Acquiring Series as herein
provided, authorizing and approving this Agreement, and authorizing and
approving the liquidation and dissolution of Company, and it shall be a
condition to the obligations of each of the parties hereto that the
holders of capital stock, par value $.001, of Company shall have
approved this Agreement, and the transactions contemplated herein,
including the liquidation and dissolution of Company, in the manner
required by law and Company's Articles of Incorporation at such a
meeting on or before the Valuation Time.
(b) Company agrees that the liquidation and dissolution of
Company will be effected in the manner provided in Company's Articles
of Incorporation and in accordance with applicable law, and that it
will not make any constructive distribution of any Acquiring Series
Shares to the shareholders of Company without first paying or
adequately providing for the payment of all of Company's known debts,
obligations and liabilities.
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(c) Each of Company and Trust will cooperate with the other,
and each will furnish to the other the information relating to itself
required by the 1934 Act and 1940 Act and the rules and regulations
thereunder to be set forth in the proxy solicitation materials to be
prepared by Company and utilized in connection with the Special
Meeting.
8. Conditions of Company's Obligations. The obligations of Company
hereunder shall be subject to the following conditions:
(a) This Agreement shall have been authorized and the
transactions contemplated hereby, including the liquidation and
dissolution of Company, shall have been approved by the directors and
shareholders of Company in the manner required by law.
(b) Trust shall have executed and delivered to Company an
Assumption of Liabilities dated as of the Exchange Date pursuant to
which the Acquiring Series will assume all of the liabilities,
expenses, costs, charges and reserves of Company, contingent or
otherwise, including liabilities existing at the Valuation Time and
described in Section 1(c) hereof in connection with the transactions
contemplated by this Agreement; provided that recourse for assumed
liabilities relating to an Acquired Series shall be limited to the
corresponding Acquiring Series.
(c) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Trust made in this Agreement are true
and correct in all material respects as if made at and as of such
dates, Trust and the Acquiring Series have complied with all of the
agreements and satisfied all of the conditions on their part to be
performed or satisfied at or prior to each of such dates, and Trust
shall have furnished to Company a statement, dated the Exchange Date,
signed by Trust's President (or any Vice President) and Treasurer (or
other financial officer) certifying those facts as of such dates.
(d) There shall not be any material litigation pending or
overtly threatened with respect to the matters contemplated by this
Agreement.
(e) Company shall have received an opinion of Xxxxx &
Xxxxxxxxx LLP, in form reasonably satisfactory to Company and dated the
Exchange Date, to the effect that (i) Trust is a business trust validly
existing under the laws of the State of Ohio, (ii) the Acquiring Series
Shares to be delivered to Company as provided for by this Agreement are
duly authorized and upon such delivery will be validly issued and will
be fully paid and nonassessable by Trust and no shareholder of Trust
has any preemptive right to subscription or purchase in respect
thereof, (iii) this Agreement has been duly authorized, executed and
delivered by Trust, and assuming due authorization, execution and
delivery of this Agreement by Company, is a valid and binding
obligation of Trust enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally and other equitable principles, (iv) the execution and
delivery of this Agreement did not, and the consummation of the
transactions contemplated hereby will not, violate Trust's Declaration
of Trust or its By-Laws or any provision of any agreement known to such
counsel to which Trust or the Acquiring Series is a party or by
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which it is bound, (v) to the knowledge of such counsel no consent,
approval, authorization or order of any court or governmental authority
is required for the consummation by Trust or the Acquiring Series of
the transactions contemplated herein, except such as have been obtained
under the 1933 Act, 1934 Act and 1940 Act and such as may be required
under state securities or blue sky laws or as may be required under
state business trust laws. In rendering such opinion Xxxxx & Xxxxxxxxx
LLP may rely on certain reasonable assumptions and certifications of
fact received from Company, Trust and certain of its shareholders.
(f) Company shall have received an opinion of Xxxxx &
Xxxxxxxxx LLP addressed to Company, Trust and each Acquiring Series and
in a form reasonably satisfactory to Company dated the Exchange Date,
with respect to the matters specified in Section 9(e) of this
Agreement. In rendering such opinion Xxxxx & Xxxxxxxxx LLP may rely on
certain reasonable assumptions and certifications of fact received from
Company, Trust and certain of its shareholders.
(g) All necessary proceedings taken by Trust in connection
with the transactions contemplated by this Agreement and all documents
incidental thereto reasonably shall be satisfactory in form and
substance to Company and Xxxxx & Xxxxxxxxx LLP.
(h) The Registration Statement shall have become effective
under the 1933 Act and applicable Blue Sky provisions, and no stop
order suspending such effectiveness shall have been instituted or, to
the knowledge of Company, contemplated by the Commission or any state
regulatory authority.
(i) Trust and Company shall have received from the Commission,
if necessary, a written order of exemption, satisfactory in form and
substance to Trust and Company, exempting the Reorganization from the
provisions of Section 17(a) of the 1940 Act.
(j) Trust shall have authorized and entered into service
provider agreements, including an Investment Advisory Agreement and
Distribution Agreement, and adopted Distribution and Shareholder
Service Plans and Agreements, identical in all material respects to
those entered into and adopted by the Company.
(k) Trust shall have taken all necessary action so that it
shall be a registered open-end management investment company under the
1940 Act.
9. Conditions of Trust's Obligations. The obligations of Trust and the
Acquiring Series hereunder shall be subject to the following
conditions:
(a) This Agreement shall have been authorized and the
transactions contemplated hereby, including the liquidation and
dissolution of Company, shall have been approved by the directors and
shareholders of Company in the manner required by law.
(b) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Company made in this Agreement are
true and correct in all material respects as if made at and as of such
dates, Company has complied with all the
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agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to each of such dates, and Company shall have
furnished to Trust a statement, dated the Exchange Date, signed by
Company's President (or any Vice President) and Treasurer (or other
financial officer) certifying those facts as of such dates.
(c) There shall not be any material litigation pending or
overtly threatened with respect to the matters contemplated by this
Agreement.
(d) Trust shall have received an opinion of Xxxxx & Xxxxxxxxx
LLP, in form reasonably satisfactory to Trust and dated the Exchange
Date, to the effect that (i) Company is a corporation validly existing
under the laws of the State of Maryland, (ii) this Agreement has been
duly authorized, executed and delivered by Company and, assuming due
authorization, execution and delivery of this Agreement by Trust, is a
valid and binding obligation of Company, enforceable in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and other equitable principles, (iii)
Company has power to assign, convey, transfer and deliver the
Investments and other assets contemplated hereby and, upon consummation
of the transactions contemplated hereby in accordance with the terms of
this Agreement, Company will have duly assigned, conveyed, transferred
and delivered such Investments and other assets to Trust, (iv) the
execution and delivery of this Agreement did not and the consummation
of the transactions contemplated hereby will not, violate Company's
Articles of Incorporation or its By-Laws, as amended, or any provision
of any agreement known to such counsel to which Company is a party or
by which it is bound, and (v) to the knowledge of such counsel no
consent, approval, authorization or order of any court or governmental
authority is required for the consummation by Company of the
transactions contemplated herein, except such as have been obtained
under the 1933 Act, 1934 Act and 1940 Act and such as may be required
under state securities or blue sky laws or state corporation laws. In
rendering such opinion, Xxxxx & Xxxxxxxxx LLP may rely upon certain
reasonable and customary assumptions and certifications of fact
received from Trust, Company and certain of its shareholders.
(e) Trust shall have received an opinion of Xxxxx & Xxxxxxxxx
LLP, addressed to Trust, each Acquiring Series and Company, in form
reasonably satisfactory to Trust and dated the Exchange Date, to the
effect that for Federal income tax purposes (i) the transfer of all or
substantially all of Acquired Series' assets in exchange for the
Acquiring Series Shares and the assumption by the Acquiring Series of
liabilities of Acquired Series will constitute a "reorganization"
within the meaning of Section 368(a) of the Code, and each of the
Acquiring Series and Acquired Series is a "party to a reorganization"
within the meaning of Section 368(b) of the Code; (ii) no gain or loss
will be recognized by Acquired Series upon the transfer of the assets
of the Acquiring Series in exchange for Acquiring Series Shares and the
assumption by the Acquiring Series of the liabilities of Acquired
Series or upon the constructive distribution of Acquiring Series Shares
by Acquired Series to its shareholders in liquidation; (iii) no gain or
loss will be recognized by the shareholders of Acquired Series upon the
exchange of their shares for Acquiring Series Shares, (iv) the basis of
the Acquiring Series Shares an Acquired Series shareholder receives in
connection with the Reorganization will be the same as the basis
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of his or her shares exchanged therefor; (v) an Acquired Series
shareholder's holding period for his or her Acquiring Series Shares
will be determined by including the period for which he or she held
Acquired Series shares exchanged therefor, provided that he or she held
such shares as capital assets; (vi) no gain or loss will be recognized
by the Acquiring Series upon the receipt of the assets of the
corresponding Acquired Series in exchange for Acquiring Series Shares
and the assumption by the Acquiring Series of the liabilities of the
corresponding Acquired Series (vii) the basis in the hands of the
Acquiring Series the assets of the corresponding Acquired Series
transferred to the Acquiring Series will be the same as the basis of
the assets in the hands of the corresponding Acquired Series
immediately prior to the transfer and (viii) the Acquiring Series'
holding periods of the assets of the corresponding Acquired Series will
include the period for which such assets of the corresponding Acquired
Series were held by the corresponding Acquired Series. In rendering
such opinion, Xxxxx & Xxxxxxxxx LLP may rely upon certain reasonable
and customary assumptions and certifications of fact received from
Trust, Company, and certain of its shareholders.
(f) The Registration Statement shall have become effective
under the 1933 Act and applicable Blue Sky provisions, and no stop
order suspending such effectiveness shall have been instituted or, to
the knowledge of Trust, contemplated by the Commission or any state
regulatory authority.
(g) All necessary proceedings taken by Company in connection
with the transactions contemplated by this Agreement and all documents
incidental thereto reasonably shall be satisfactory in form and
substance to Trust and Xxxxx & Xxxxxxxxx LLP.
(h) Prior to the Exchange Date, each Acquired Series shall
have declared a dividend or dividends which, together with all previous
such dividends, shall have the effect of distributing to its
shareholders all of its investment company taxable income for its
taxable year ended December 31, 1997 and the short taxable year
beginning on January 1, 1998 and ending on the Valuation Time (computed
without regard to any deduction for dividends paid), and all of its net
capital gain realized in its taxable year ended December 31, 1997 and
the short taxable year beginning January 1, 1998 and ending on the
Valuation Time (after reduction for any capital loss carryover).
(i) Company shall have duly executed and delivered to Trust a
xxxx of sale, assignment, certificate and other instruments of transfer
("Transfer Documents") as Trust may deem necessary or desirable to
transfer all of Company's entire right, title and interest in and to
the Investments and all other assets of Company to the Acquiring
Series.
(j) Trust and Company shall have received from the Commission,
if necessary, a written order of exemption, satisfactory in form and
substance to Trust and Company, exempting the Reorganization from the
provisions of Section 17(a) of the 1940 Act.
(k) The Trust shall have taken all necessary action so that it
shall be a registered open-end management investment company under the
1940 Act.
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10. Termination. Trust and Company may, by mutual consent of their
respective trustees or directors, terminate this Agreement, and Trust
or Company, after consultation with counsel and by consent of their
respective trustees or directors or an officer authorized by such
trustees or directors, may, subject to Section 11 of this Agreement,
waive any condition to their respective obligations hereunder.
11. Sole Agreement; Governing Law; Amendments. This Agreement supersedes
all previous correspondence and oral communications between the parties
regarding the subject matter hereof, constitutes the only understanding
with respect to such subject matter and shall be construed in
accordance with and governed by the laws of the State of Ohio.
This Agreement may be amended, modified or supplemented in
such manner as may be mutually agreed upon in writing by the authorized
officer of Trust and Company; provided, however, that following the
Special Meeting of Company's shareholders called by Company pursuant to
Section 7 of this Agreement, no such amendment may have the effect of
altering or changing the amount or kind of shares received by Company,
or altering or changing to any material extent the amount or kind of
liabilities assumed by Trust and the Acquiring Series, or altering or
changing any other terms and conditions of the Reorganization if any of
the alterations or changes, alone or in the aggregate, would materially
adversely affect Company's shareholders without their further approval.
This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
THE RIVERFRONT FUNDS, INC.
By /s/ XXXXXX X. XXXXX
---------------------------
Xxxxxx X. Xxxxx, President
THE RIVERFRONT FUNDS
By /s/ XXXXXX X. XXXXX
---------------------------
Xxxxxx X. Xxxxx, President
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