Exhibit D18
AGREEMENT AND PLAN OF REORGANIZATION AND
LIQUIDATION
THIS AGREEMENT AND PLAN OF REORGANIZATION AND
LIQUIDATION (“Agreement”) is made as of this 30th day of July, 2024, by Northern Lights Fund Trust II, a Delaware
statutory trust (“Trust”), on behalf of its series Essential 40 Stock Fund (the “Target Fund”) and Essential 40
Stock ETF (the “Acquiring Fund”), and, with respect to paragraph 10.2 of this Agreement, KKM Financial, LLC (“KKM”).
WHEREAS, each of the Target
Fund and the Acquiring Fund is a series of an open-end, investment company of the management type registered pursuant to the Investment
Company Act of 1940, as amended (“1940 Act”);
WHEREAS, the contemplated
reorganization and liquidation will consist of (1) the sale, assignment, conveyance, transfer, and delivery of all of the property and
assets (“Assets”) of the Target Fund to the Acquiring Fund in exchange for shares of beneficial interest of the Acquiring
Fund (“Acquiring Fund Shares”) equal in aggregate net asset value to the outstanding shares of beneficial interest of the
Target Fund (“Target Fund Shares”), as described herein, (2) the assumption by the Acquiring Fund of all liabilities (“Liabilities”)
of the Target Fund, (3) the distribution of the Acquiring Fund Shares to the shareholders of the Target Fund (“Target Fund Shareholders”)
who hold Target Fund Shares through a brokerage account or transfer agent account that can accept Acquiring Fund Shares, (4) the distribution
of cash to Target Fund Shareholders in lieu of fractional Acquiring Fund Shares, and (5) with respect to Target Fund Shareholders who
do not hold Target Fund Shares through a brokerage account or transfer agent account that can accept Acquiring Fund Shares, the distribution
of cash equal to the net asset value of the Target Fund Shares held by such Target Fund Shareholders, in complete liquidation of the Target
Fund, as provided herein (“Reorganization”), all upon the terms and conditions hereinafter set forth in this Agreement. The
Acquiring Fund is, and will be immediately prior to Closing (defined in paragraph 3.1), a shell series, without Assets or Liabilities,
created for the purpose of acquiring the Assets and Liabilities of the Target Fund;
WHEREAS, the Board of Trustees
of the Trust has determined (i) with respect to the Target Fund, that the Reorganization is in the best interests of the Target Fund and
that the interests of the existing Target Fund Shareholders will not be diluted as a result of the Reorganization and (ii) with respect
to the Acquiring Fund, that the Reorganization is in the best interests of the Acquiring Fund;
NOW, THEREFORE, in consideration
of the premises and of the covenants and agreements hereinafter set forth, the parties hereto covenant and agree as follows:
| 1.1. | Subject to the requisite approvals and the other terms and conditions herein set forth and on the basis
of the representations and warranties contained herein, the Trust, on behalf of the Target Fund, agrees to sell, assign, convey, transfer
and deliver all of its 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 Target Fund a number of full shares of beneficial interest of the Acquiring Fund having
an aggregate net asset value equal to the value of the Assets of the Target Fund attributable to the Target Fund Shares on such date,
less: |
| i. | the value of cash to be distributed to Target Fund Shareholders in lieu of fractional Acquiring Fund Shares; |
| ii. | the value of cash to be distributed to Target Fund Shareholders who do not hold Target Fund Shares through
a brokerage account or transfer agent that can accept Acquiring Fund Shares (“Cash-Out Shareholders”), who shall not receive
a distribution of such Acquiring Fund Shares and in lieu thereof shall receive a distribution of cash equal to the net asset value of
their Target Fund Shares; and |
| iii. | the value of the Liabilities of the Target Fund attributable to those Target Fund Shares as of the time
and date set forth in paragraph 3.1; |
| | | |
| | | with the number of full shares to be
delivered determined by dividing the value of such Target Fund’s net Assets (computed in the manner and as of the time and date
set forth in paragraph 2.1), except for the sum of the values in subparagraph (a)(i)-(iv) of this paragraph 1.1, by the net asset value
of one share of Acquiring Fund Shares (as computed in the manner and as of the time and date set forth in paragraph 2.2); and |
| (b) | to assume all Liabilities of the Target Fund, as set forth in paragraph 1.3. Such transactions shall take
place on the date of the closing provided for in paragraph 3.1 (“Closing Date”). |
| 1.2. | The Assets of the Trust attributable to the Target Fund to be sold, assigned, conveyed, transferred and
delivered to the Trust, on behalf of the Acquiring Fund, shall consist of all assets of the Target Fund, including, without limitation,
all rights, cash, securities, commodities and futures interests and dividends or interests receivable that are owned by the Target Fund
and any deferred or prepaid expenses shown as an asset on the books of the Target Fund on the Valuation Date as defined in paragraph 2.1,
except for assets having a value equal to the sum of the values in subparagraph (a)(i)-(iv) of paragraph 1.1. The Target Fund will sell,
assign, convey, transfer and deliver to the Acquiring Fund any rights, stock dividends, or other securities received by the Target Fund
after the Closing Date as stock dividends or other distributions on or with respect to the Assets transferred, which rights, stock dividends,
and other securities shall be deemed included in the Assets transferred to 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 Target Fund acquired by the Acquiring Fund. |
| 1.3. | The Trust, on behalf of the Acquiring Fund, shall assume all of the Liabilities of the Target Fund, whether
accrued or contingent, known or unknown, existing at the Valuation Date. |
| 1.4. | Immediately following the actions contemplated by paragraph 1.1, the Trust shall take such actions necessary
to complete the liquidation of the Target Fund. To complete the liquidation, the Trust, on behalf of the Target Fund, shall (a) distribute
to the Target Fund Shareholders of record (other than Cash-Out Shareholders) as of the Closing Date, as defined in paragraph 3.1, on a
pro rata basis, the Acquiring Fund Shares received by the Trust, on behalf of the Target Fund, pursuant to paragraph 1.1, (b) distribute
cash, as provided in paragraph 1.1 to the Cash-Out Shareholders, equal in value to the net asset |
value of such Target Fund Shares by such
Target Fund Shareholders, and (c) completely liquidate. Such liquidation shall be accomplished, with respect to the Target Fund Shares,
by the transfer of the Acquiring Fund Shares then credited to the account of the Target Fund on the books of the Acquiring Fund to open
accounts on the share records of the Acquiring Fund in the names of the Target Fund Shareholders. The aggregate net asset value of Acquiring
Fund Shares to be so credited to Target Fund Shareholders shall be equal to the aggregate net asset value of the Target Fund Shares owned
by Target Fund Shareholders on the Closing Date less: (i) the value of cash to be distributed to Target Fund Shareholders in lieu of fractional
Acquiring Fund Shares; and (ii) the value of cash to be distributed to Cash-Out Shareholders, who shall not receive a distribution
of such Acquiring Fund Shares and in lieu thereof shall receive a distribution of cash equal to the net asset value of their Target Fund
Shares. All issued and outstanding Target Fund Shares will be canceled on the books of the Target Fund. The Acquiring Fund shall not issue
certificates representing Acquiring Fund Shares in connection with such exchange. For the avoidance of doubt, in connection with the above-provided
liquidation and distribution of Acquiring Fund Shares, if a Target Fund Shareholder does not hold their Target Fund Shares in a brokerage
account or transfer agent account that can accept the Acquiring Fund Shares being distributed, then such Target Fund Shareholder shall
not receive a distribution of such Acquiring Fund Shares and in lieu thereof shall receive a distribution of cash equal to the net asset
value of their Target Fund Shares.
| 1.5. | Ownership of Acquiring Fund Shares will be shown on the books of the Acquiring Fund’s transfer agent. |
| 1.6. | Any reporting responsibility of the Target 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 Target Fund. |
| 2.1. | The value of the Assets of the Target Fund shall be determined as of the close of business of the New
York Stock Exchange (“NYSE”), usually 4:00 p.m. Eastern Time, and after the declaration of any dividends by the Target Fund,
on the Closing Date (such time and date being hereinafter called the “Valuation Date”), computed using the valuation procedures
which the Acquiring Fund would use in determining the fair market value of its Assets and Liabilities. The Target Fund will not treat
an intraday unscheduled disruption or closure in NYSE trading on the Valuation Date as a closure of the NYSE and will calculate net asset
value as of 4:00 p.m., Eastern Time, if the particular disruption or closure directly affects only the NYSE. |
| 2.2. | The aggregate net asset value of the Acquiring Fund’s Acquiring Fund Shares shall be determined
to four decimal places on the Valuation Date, using the valuation procedures which the Acquiring Fund would use in determining its net
asset value. |
| 2.3. | The number of Acquiring Fund Shares to be issued in exchange for the Assets shall be determined with respect
to the Target Fund by dividing the value of the net assets with respect to the Target Fund Shares, determined as set forth in paragraph
2.1, except for the sum of the values in subparagraph (a)(i)-(iv) of paragraph 1.1, by the net asset value per |
share of the Acquiring Fund Shares, determined
as set forth in paragraph 2.2. For the avoidance of doubt, the Acquiring Fund shall not issue fractional shares.
| 3. | CLOSING AND CLOSING DATE |
| 3.1. | The Closing Date shall be October 18, 2024, or such other date as the parties may agree. All acts taking
place at the closing of the transactions provided for in this Agreement (“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 5:00 p.m., Eastern Time. The Closing shall be held at the offices of KKM or at such other time and/or place,
including by virtual means, as the parties may agree. |
| 3.1. | The portfolio securities and other investments of the Target Fund shall be made available by the Target
Fund to the Brown Brothers ▇▇▇▇▇▇▇▇ & Co., as the custodian for the Acquiring Fund (the “Acquiring Fund Custodian”), for
examination no later than five business days preceding the Closing Date. The Trust shall direct U.S. Bank, N.A., as custodian for the
Target Fund (“Target Fund Custodian”), to deliver to the Trust, on behalf of the Acquiring Fund, at the Closing a certificate
of an authorized officer stating that (i) all Assets, cash and other financial interests of the Target Fund held by the Target Fund Custodian
on behalf of the Target Fund pursuant to the Target Fund’s custody agreement with the Target Fund Custodian have been delivered
to the Acquiring Fund on the Closing Date, (ii) the Target Fund Custodian has paid any and all taxes with respect to the Target Fund that
the Target Fund has specifically and properly instructed the Target Fund Custodian to pay, and agrees to notify the Acquiring Fund in
the event it receives notification of any additional taxes that would be due with respect to the Target Fund, and (iii) all income that
is received by the Target Fund Custodian after the Closing Date for the account of the Target Fund will be credited to the Acquiring Fund
in accordance with the Custody Agreement dated January 4, 2013, between the Trust and the Target Fund Custodian, as amended from time
to time. The Target Fund Custodian shall deliver to the Acquiring Fund Custodian, as of the Closing Date by book entry, in accordance
with the customary practices of the Target Fund Custodian and of each securities depository, as defined in Rule 17f-4 under the 1940 Act,
the Assets of the Target Fund deposited with such depositories. The cash to be transferred by the Target Fund shall be delivered to the
Acquiring Fund Custodian on the Closing Date. The Acquiring Fund Custodian shall deliver within one business day after the Closing a certificate
of an authorized officer stating that the Assets were delivered in proper form to the Acquiring Fund on the Closing Date. |
| 3.2. | The Trust shall direct Ultimus Fund Solutions, LLC, in its capacity as transfer agent for the Target Fund
(“Transfer Agent”), to deliver to the Trust, on behalf of the Acquiring Fund at the Closing a certificate of an authorized
officer stating that its records contain the name and address of each Target Fund Shareholder and the number and percentage ownership
of Target Fund Shares owned by each such Shareholder immediately prior to the Closing. The Acquiring Fund shall deliver to the Secretary
of the Target Fund a confirmation evidencing that (a) the appropriate number of Acquiring Fund Shares have been credited to the Target
Fund’s account on the books of the Acquiring Fund pursuant to paragraph 1.1 prior to the actions contemplated by paragraph 1.4 and
(b) the appropriate number of Acquiring Fund Shares have been credited to the accounts of the Target Fund Shareholders on the books of
the Acquiring Fund pursuant to paragraph 1.4. 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.
| 3.3. | In the event that at the Valuation Date (a) the NYSE or another primary trading market for portfolio securities
of the Acquiring Fund or the Target 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 Target Fund or the Acquiring Fund is impracticable (in the judgment of the Trustees of the Trust, with respect to
the Target Fund and of the Trustees of the Trust with respect to the Acquiring Fund), 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 to this Agreement, the Trust, on behalf of the Target
Fund, represents and warrants as follows: |
| (a) | The Target Fund is duly established as a series of the Trust, which is a statutory trust duly organized,
existing and in good standing under the laws of the State of Delaware, with power under its Certificate of Trust and Trust Instrument
(collectively, the “Charter”), as amended, 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 not required to qualify as a foreign trust or association in any jurisdiction, except for any jurisdiction
in which it has so qualified or in which a failure to so qualify would not have a material adverse effect. 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 Schedule 4.1. |
| (b) | The Trust is a registered investment company classified as a management company of the open-end type,
and its registration with the Commission as an investment company under the 1940 Act, and the registration of the Target 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 Target Fund of the transactions contemplated herein, except such as may be required under the 1933 Act, the Securities
Exchange Act of 1934, as amended (“1934 Act”), the 1940 Act, state securities laws and the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements
Act of 1976 (the “▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act”). |
| (d) | The current prospectuses and statement of additional information of the Target Fund conform 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 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 Target 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, including such restrictions as might arise under the 1933 Act. |
| (f) | The Target Fund is not engaged currently, and the execution, delivery and performance of this Agreement
will not result in, (i) a material violation of the Charter or by-laws of the Trust, as applicable, or of any agreement, indenture, instrument,
contract, lease or other undertaking to which the Trust, on behalf of the Target Fund, is a party or by which it is bound, or (ii) 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 Target Fund, is a party or by which it is bound. |
| (g) | All material contracts or other commitments of the Target Fund (other than this Agreement, contracts listed
in Schedule 4.1 and certain investment contracts, including options, futures, and forward contracts) will terminate without liability
to the Target Fund on or prior to the Closing Date. Each contract listed in Schedule 4.1 is a valid, binding and enforceable obligation
of each party thereto (assuming due authorization, execution and delivery by the other party thereto) and the assignment by the Target
Fund to the Acquiring Fund of each such contract will not result in the termination of such contract, any breach or default thereunder
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 Target Fund or any of the Target
Fund’s properties or assets, that, if adversely determined, would materially and adversely affect its financial condition or the
conduct of its business. Except as disclosed on Schedule 4.1, the Trust, on behalf of the Target Fund, knows of no facts which might form
the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment
of any court or governmental body which materially and adversely affects its business or its ability to consummate the transactions herein
contemplated. |
| (i) | The Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule
of Investments of the Target Fund at May 31, 2024 have been audited by the Target Fund’s Independent Registered Public Accounting
Firm, and are in accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently
applied. Such statements and the Target Fund’s unaudited financial statements at and for the six months ended November 30, 2023
(true and correct copies of which have been furnished to the Trust, on behalf of the Acquiring Fund) present fairly, in all material respects,
the financial condition of the Target Fund as of such date in accordance with GAAP, and there are no known contingent, accrued or other
Liabilities of the Target 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 May 31, 2024, there has not been any material adverse change in the Target Fund’s financial
condition, Assets, Liabilities or business, other than changes occurring in the ordinary course of business, or any incurrence by the
Target Fund of indebtedness, other than the incurrence of indebtedness in the ordinary course of business in accordance with the Target
Fund’s investment policies. For the purposes of this subparagraph (j), a decline in net asset value per share of Target Fund Shares
due to declines in market values of securities held by the Target Fund, the discharge of Target Fund Liabilities, or the redemption of
Target Fund Shares by Target Fund Shareholders shall not constitute a material adverse change. |
| (k) | On the Closing Date, all federal and other tax returns, dividend reporting forms, and other tax-related
reports of the Target 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. |
| (l) | For each taxable year of its operation (including with respect to the taxable year that includes the Closing
Date the portion of such taxable year up to the Closing date), the Target Fund has met or meets the requirements of Subchapter M of the
Internal Revenue Code of 1986, as amended (the “Code”), for qualification as a regulated investment company, and has been
or is eligible to and has computed or will compute its federal income tax under Section 852 of the Code. In that regard, the Target Fund
has declared and distributed as of the Closing Date substantially all amounts required to have been declared and distributed by such Closing
Date of (i) its investment company taxable income (computed without regard to any deduction for dividends paid), (ii) the excess, if any,
of (x) its investment income excludible from gross income under Section 103 of the Code over (y) its deductions disallowed under Sections
265 and 171 of the Code (“net tax-exempt income”), and (iii) any net capital gain (after reduction for any capital loss carryforward)
(as defined in the Code). |
| (m) | All issued and outstanding Target 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, on behalf of the Target Fund, and will have been
offered and sold in every state, territory and 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 Target 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 Target Fund, as
provided in paragraph 3.3. The Target Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase
any of the Target Fund Shares, nor is there outstanding any security convertible into any of the Target Fund Shares. The Target Fund will
review its Assets to ensure that at any time prior to the Closing Date its Assets do not include any assets that the Acquiring Fund is
not permitted, or reasonably believes to be unsuitable for it, to acquire, including without |
limitation any security that, prior to
its acquisition by the Target Fund, is unsuitable for the Acquiring Fund to acquire.
| (n) | The execution, delivery and performance of this Agreement, and the transactions contemplated herein, have
been duly authorized by all necessary trust action on the part of the Board of Trustees of the Trust, on behalf of the Target Fund, as
described in paragraph 8.1, and this Agreement constitutes a valid and binding obligation of the Trust, on behalf of the Target Fund,
enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors’ rights and to general equity principles. |
| (o) | The combined information statement and prospectus (“Information Statement/Prospectus”) to
be included in the Registration Statement (as defined in paragraph 5.5), insofar as it relates to the Target Fund and the Trust, will
from the effective date of the Registration Statement through the Closing Date (i) not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which such statements were made, not materially misleading (provided that this representation and warranty shall not apply to statements
in or omissions from the Information Statement/Prospectus made in reliance upon and in conformity with information that was furnished
by the Acquiring Fund for use therein) and (ii) comply in all material respects with the provisions of the 1933 Act, the 1934 Act and
the 1940 Act and the rules and regulations thereunder. The information to be furnished by the Target Fund for use in supplements to registration
statements and other documents filed or to be filed with any federal, state or local regulatory authority (including the Financial Industry
Regulatory Authority (“FINRA”)), 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 in Schedule 4.2 to this Agreement, the Trust, on behalf of the Acquiring
Fund, represents and warrants as follows: |
| (a) | The Acquiring Fund is duly established as a series of the Trust, which is a statutory trust duly organized,
existing and in good standing under the laws of the State of Delaware, with power under its Charter, 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 not required to qualify as a foreign trust or association
in any jurisdiction, except for any jurisdiction in which it has so qualified or in which a failure to so qualify would not have a material
adverse effect. 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 Schedule 4.2. |
| (b) | The Trust is a registered investment company classified as a management company of the open-end type,
and its registration with the Commission as an investment company under the 1940 Act and the registration of the Acquiring Fund Shares
under the 1933 Act 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 conforms 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 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
will not result, in (i) a material violation of the Charter or by-laws of the Trust, as applicable, 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, or (ii)
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 the
Acquiring Fund’s Assets, that, if adversely determined, would materially and adversely affect the Acquiring Fund’s financial
condition or the conduct of its business. Except as disclosed in Schedule 4.2 to this Agreement, the Trust, on behalf of the Acquiring
Fund, knows of no facts which might form the basis for the institution of such proceedings and is not a party to or subject to the provisions
of any order, decree or judgment of any court or governmental body which materially and adversely affects the Acquiring Fund’s business
or its ability to consummate the transactions herein contemplated. |
| (g) | As the Acquiring Fund has not yet commenced operations, 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, other than the incurrence of indebtedness in the ordinary course
of business in accordance with the Acquiring Fund’s investment policies. For the purposes of this subparagraph (g), 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. |
| (h) | 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), if any, 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, if
any, 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.
| (i) | The Acquiring Fund intends to meet the requirements of Subchapter M of the Code for qualification as a
regulated investment company and to be eligible to and will intend to compute its federal income tax under Section 852 of the Code for
each taxable year. |
| (j) | All of the issued and outstanding Acquiring 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, on behalf of the Acquiring Fund, and will
have been offered and sold in every state, territory and 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. All of the Acquiring Fund Shares to be issued and delivered to the Target Fund, for the account of the Target
Fund Shareholders, pursuant to this Agreement will on the Closing Date have been duly authorized and, when so issued and delivered, will
be duly and validly and legally issued Acquiring Fund Shares and be fully paid and non-assessable by the Trust, on behalf of the Acquiring
Fund. |
| (k) | 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 Trustees of the Trust, 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. |
| (l) | The Information Statement/Prospectus to be included in the Registration Statement, insofar as it relates
to the Acquiring Fund, the Trust and the Acquiring Fund Shares, will from the effective date of the Registration Statement through the
Closing Date (i) not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which such statements were made, not materially misleading
(provided that this representation and warranty shall not apply to statements in or omissions from the Information Statement/Prospectus
made in reliance upon and in conformity with information that was furnished by the Target Fund for use therein) and (ii) comply in all
material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder. The information
to be furnished by the Acquiring Fund for use in supplements to registration statements and other documents filed or to be filed with
any federal, state or local regulatory authority (including FINRA), 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.
The Trust, on behalf of the Acquiring Fund, and the Trust, on behalf
of the Target Fund, hereby further covenant as follows:
| 5.1. | The Target Fund will operate its business in the ordinary course between the date hereof and the Closing
Date, it being understood that such ordinary course of business will include the declaration and payment of customary dividends and distributions,
and any other distribution that may be advisable. The Acquiring Fund is not currently operational. |
| 5.2. | The Target Fund covenants that the Acquiring Fund Shares to be issued hereunder are not being acquired
for the purpose of making any distribution thereof, other than in accordance with the terms of this Agreement. |
| 5.3. | The Target Fund will assist the Acquiring Fund in obtaining such information as the Acquiring Fund reasonably
requests concerning the beneficial ownership of the Target Fund Shares. |
| 5.4. | Subject to the provisions of this Agreement, the Acquiring Fund and the Target Fund covenant to 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. |
| 5.5. | 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
(“Registration Statement”). The Target Fund will provide to the Acquiring Fund such information regarding the Target Fund
as may be reasonably necessary for the preparation of the Registration Statement. |
| 5.6. | Each of the Acquiring Fund and the Target Fund covenant to 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. |
| 5.7. | The Trust, on behalf of the Target Fund, covenants that it will 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, on behalf of
the Target Fund, title to and possession of the Acquiring Fund Shares to be delivered hereunder and (b) the Trust’s, on behalf of
the Acquiring Fund, title to and possession of all the Assets and otherwise to carry out the intent and purpose of this Agreement. |
| 5.8. | The Acquiring Fund covenants to use all reasonable efforts to obtain the approvals and authorizations
required by the 1933 Act, the 1940 Act and such of the state blue sky or securities laws as may be necessary in order to continue its
operations after the Closing Date. |
| 5.9. | The Acquiring Fund shall not change its Charter, prospectus or statement of additional information prior
to closing so as to restrict permitted investments for the Acquiring Fund prior to the closing, except as required by the Commission. |
| 6. | CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TARGET FUND |
The obligations of the Trust, on behalf of
the Target Fund, to consummate the transactions provided for herein shall be subject, at the election of the Trust, to the performance
by the Trust, on behalf of the Acquiring Fund, of all the obligations to be performed by it hereunder on or before the Closing Date, and,
in addition thereto, the following further conditions:
| 6.1. | All representations and warranties of 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
(the “Assumption Instrument”) and all such other agreements and instruments as the Trust, on behalf of the Target Fund, may
reasonably deem necessary or desirable in order to vest in and confirm (a) the Trust, on behalf of the Target Fund, has title to and possession
of the Acquiring Fund Shares to be delivered hereunder, and (b) the Trust, on behalf of the Acquiring Fund, assumption of all of the Liabilities
and 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 Target Fund a certificate executed
in its name by its President or Vice President and the Treasurer or Assistant Treasurer of the Trust, in a form reasonably satisfactory
to the Trust, on behalf of the Target Fund, 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 Target Fund and the Acquiring Fund shall have agreed on the number of full Acquiring Fund Shares to
be issued in connection with the Reorganization after such number has been calculated in accordance with paragraph 1.1. For the avoidance
of doubt, the Acquiring Fund shall not issue fractional shares, and cash shall be distributed to Target Fund Shareholders in connection
with this Reorganization in lieu of fractional Acquiring Fund Shares. |
| 7. | CONDITIONS PRECEDENT TO OBLIGATIONS 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, at the election of the Trust, to the performance
by the Trust, on behalf of the Target Fund, of all of the obligations to be performed by it hereunder on or before the Closing Date and,
in addition thereto, the following further conditions:
| 7.1. | All representations and warranties of the Trust, on behalf of the Target 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 Target 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 Target Fund, on or before
the Closing Date. |
| 7.3. | The Trust, on behalf of the Target Fund, shall have delivered to the Acquiring Fund a statement of the
Assets and Liabilities, as of the Closing Date, including a schedule of investments, certified by the Treasurer of the Trust, on behalf
of the Target Fund. the Trust shall have executed and delivered all such assignments and other instruments of transfer (the “Transfer
Instruments”) 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, on behalf of the Target Fund, title to and possession of the Acquiring Fund Shares to be delivered hereunder
and (b) the Trust’s, on behalf of the Acquiring Fund, title to and possession of all the Assets and otherwise to carry out the intent
and purpose of this Agreement. |
| 7.4. | The Trust, on behalf of the Target Fund, shall have delivered to the Acquiring Fund a certificate executed
in the name of the Target Fund by the President or Vice President and the Treasurer or Assistant Treasurer of the Trust, in a form reasonably
satisfactory 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, on behalf of the Acquiring Fund, shall reasonably request. |
| 7.5. | The Target Fund and the Acquiring Fund shall have agreed on the number of full Acquiring Fund Shares to
be issued in connection with the Reorganization after such number has been calculated in accordance with paragraph 1.1. For the avoidance
of doubt, the Acquiring Fund shall not issue fractional shares, and cash shall be distributed to Target Fund Shareholders in connection
with this Reorganization in lieu of fractional Acquiring Fund Shares. |
| 8. | FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND THE TARGET FUND |
If any of the conditions set forth below have
not been satisfied on or before the Closing Date with respect to the Trust, on behalf of the Target Fund, or the Trust, on behalf of the
Acquiring Fund, the other party to this Agreement 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 Trustees of the
Trust, on behalf of the Target Fund, and the Trust, on behalf of the Acquiring Fund, in accordance with the provisions of the Charter
and by- laws of the Trust, applicable state law and the 1940 Act, 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 action, suit or other proceeding shall be pending or, to the knowledge of the
Trust, threatened before any court or governmental agency in which it is |
sought to restrain or prohibit, or obtain
damages or other relief in connection with, this Agreement or the transactions contemplated herein.
| 8.3. | All consents of other parties and all other consents, orders and permits of federal, state and local regulatory
authorities 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 of the Acquiring Fund or the Target Fund, provided that either party hereto 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, threatened or contemplated under the 1933 Act. |
| 8.5. | With respect to the Reorganization, the Acquiring Fund and the Target Fund shall have received an opinion
of ▇▇▇▇▇▇ & Bird LLP, substantially to the effect that for U.S. federal income tax purposes: |
| (a) | The Reorganization will constitute a “reorganization” within the meaning of Section 368(a)
of the Code, and the Acquiring Fund and Target Fund each will be “a party to a reorganization” within the meaning of Section
368(b) of the Code; |
| (b) | Under Section 1032 of the Code, no gain or loss will be recognized by the Acquiring Fund upon the receipt
of the Assets of the Target Fund solely in exchange for the Acquiring Fund shares and the assumption of all of the Liabilities of the
Target Fund ; |
| (c) | Under Sections 361 and 357(a) of the Code, no gain or loss will be recognized by the Target Fund upon
the transfer of the Assets of the Target Fund to the Acquiring Fund solely in exchange for the assumption by the Acquiring Fund of the
Target Fund’s Liabilities and the Acquiring Fund Shares or upon the distribution (whether actual or constructive) of the Acquiring
Fund Shares by the Target Fund to Target Fund Shareholders in exchange for their Target Fund Shares; |
| (d) | Under Section 354 of the Code, no gain or loss will be recognized by any Target Fund Shareholder upon
the exchange of its Target Fund Shares solely for Acquiring Fund Shares (except with respect to cash received in lieu of fractional shares); |
| (e) | Under Section 358 of the Code, the aggregate tax basis of the Acquiring Fund Shares received by each Target
Fund Shareholder pursuant to the Reorganization will be the same as the aggregate tax basis of the Target Fund Shares exchanged in the
Reorganization (reduced by any amount of tax basis allocable to fractional shares for which cash is received); |
| (f) | Under Section 1223(1) of the Code, the Target Fund Shareholder’s holding period of the Acquiring
Fund Shares to be received by each Target Fund Shareholder will include the period during which the Target Fund Shares exchanged therefor
were held by such shareholder, provided the Target Fund Shares are held as capital assets on the date of the Reorganization; |
| (g) | Under Section 362(b) of the Code, the tax basis of the Assets of the Target Fund received by the Acquiring
Fund will be the same as the tax basis of such Assets in the hands of the Target Fund immediately prior to the Reorganization; |
| (h) | Under Section 1223(2) of the Code, the holding period of the Assets of the Target Fund in the hands of
the Acquiring Fund will include the periods during which those Assets were held by the Target Fund; and |
| (i) | The Acquiring Fund will succeed to and take into account the items of the Target Fund described in Section
381(c) of the Code, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code and the Treasury
regulations thereunder. |
| | | |
| | | The opinion will be subject to receipt
of and based on certain factual certifications made by officers of the Acquiring Fund and the Target Fund and will also be based on customary
assumptions. It is possible that the Internal Revenue Service could disagree with ▇▇▇▇▇▇ & Bird LLP’s opinion. Notwithstanding
anything herein to the contrary, the Trust may not waive the conditions set forth in this paragraph 8.5. |
| 8.6. | The Trust shall have received the opinion of ▇▇▇▇▇▇ & Bird LLP dated the Closing Date (subject to
customary assumptions, qualifications and limitations and in form and substance reasonably acceptable to the Trust, on behalf of the Acquiring
Fund, and the Trust, on behalf of the Target Fund), substantially to the effect that, based upon certain facts and certifications made
by the Trust, on behalf of the Acquiring Fund, and the Trust, on behalf of the Target Fund, and their authorized officers, (a) the Trust
is duly organized and validly existing under the laws of Delaware and has power to own all of its Assets and to carry on its business
as presently conducted, and the Acquiring Fund is a series thereof duly constituted in accordance with the applicable provisions of the
1940 Act and the Charter and by-laws of the Trust; (b) the Trust is duly organized and validly existing under the laws of the State
of Delaware and has power to own all of its Assets and to carry on its business as presently conducted, and the Target Fund is a series
thereof duly constituted in accordance with the applicable provisions of the 1940 Act and the Charter and by-laws of the Trust; (c)
the Acquiring Fund has the power to assume the Liabilities to be assumed by it hereunder and, upon consummation of the transactions contemplated
hereby in accordance with the terms of this Agreement and the execution and delivery to the Target Fund by the Trust, on behalf of the
Acquiring Fund, of the Assumption Instrument, the Acquiring Fund will have duly assumed such Liabilities; (d) the Target Fund has
the power to sell, assign, transfer and deliver the Assets to be transferred by it hereunder, and, upon consummation of the transactions
contemplated hereby in accordance with the terms of this Agreement and the execution and delivery to the Acquiring Fund by the Trust,
on behalf of the Target Fund, of the Transfer Instruments against payment therefor, the Target Fund will have duly transferred such Assets
to the Acquiring Fund; (e) this Agreement has been duly authorized, executed and delivered on behalf of the Acquiring Fund and the
Target Fund and, assuming the Registration Statement and Information Statement/Prospectus comply with applicable federal securities laws,
constitutes the valid and binding obligation of the Acquiring Fund and Target Fund, enforceable against the Acquiring Fund and Target
Fund in accordance with its terms, subject to bankruptcy, insolvency, moratorium reorganization and other laws of general applicability
relating to or affecting creditors’ rights and to general equity principles (regardless of whether enforceability is considered
in a proceeding in equity or at law); (f) the Acquiring Fund |
Shares to be issued for transfer to the
Target Fund Shareholders as provided by this Agreement are duly authorized for issuance and, when issued and delivered by the Acquiring
Fund against delivery of all of the Assets of the Target Fund as set forth in this Agreement, will be validly issued and outstanding and
fully paid and nonassessable shares in the Acquiring Fund, and no shareholder of the Acquiring Fund has any preemptive right of subscription
or purchase in respect thereof; (g) the execution and delivery of this Agreement did not, and the consummation of the transactions
contemplated thereby will not, violate the Charter or by-laws of the Trust, or result in a violation of the terms and provision of the
agreements to which the Trust, the Acquiring Fund or the Target Fund is a party or by which the Trust, the Acquiring Fund or the Target
Fund is bound that are listed in an annex to such opinion and, to the knowledge of such counsel, no consent, approval, authorization or
order of any United States federal, Delaware state court or governmental body is required for the consummation by the Trust and the Acquiring
Fund and the Target Fund of the transactions contemplated by the Agreement, except such as have been obtained; (h) to the knowledge
of such counsel, based on discussions with officers of the Trust but without other independent investigation, there is no litigation or
administrative proceeding or investigation of or before any court or governmental body presently pending or threatened as to the Trust,
with respect to the Acquiring Fund, or the Trust, with respect to the Target Fund, or any of their respective Assets, that, if adversely
determined, would materially and adversely affect their respective financial conditions or the conduct of their respective businesses;
to the knowledge of such counsel, based on discussions with officers of the Trust but without other independent investigation, neither
the Trust nor the Acquiring Fund or Target Fund is 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 either of their respective businesses; and, to the knowledge of such
counsel, based on discussions with officers of the Trust but without other independent investigation, there is no legal or governmental
proceeding relating to the Trust, the Acquiring Fund, or the Target Fund pending on or before the date of mailing of the Information Statement/Prospectus
or the date hereof which is required to be disclosed in the Registration Statement which is not disclosed therein; (i) the Trust
is registered with the Commission as an investment company under the 1940 Act; and (j) the Registration Statement has become effective
under the 1933 Act and, to the knowledge of such counsel, (1) no stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and (2) no proceedings for that purpose have been instituted or threatened by the Commission.
| 8.7. | The Assets of the Target Fund will include no assets which the Acquiring Fund, by reason of limitations
contained in its Charter or of investment policies disclosed in its current prospectus and statement of additional information, as supplemented,
in effect on the Closing Date, may not properly acquire. |
| 9.1. | The Acquiring Fund, solely out of its Assets (including any amounts paid to the Target Fund pursuant to
any applicable liability insurance policies or indemnification agreements), agrees to indemnify and hold harmless the Trust and its Trustees
and 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 Target Fund may become subject, insofar as such loss, claim, |
damage, liability or expense (or actions
with respect thereto) arises out of or is based on (a) any breach by the Acquiring Fund, as applicable 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 its Trustees or officers prior to
the Closing Date, provided that such indemnification by the Acquiring Fund 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 Target Fund, solely out of its Assets (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 Trust and its Trustees
and 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 Acquiring Fund may become subject, insofar as such loss,
claim, damage, liability or expense (or actions with respect thereto) arises out of or is based on (a) any breach by the Target Fund of
any of its representations, warranties, covenants or agreements set forth in this Agreement or 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 its Trustees
or officers prior to the Closing Date, provided that such indemnification by the Target Fund 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. | BROKERAGE FEES AND BROKERAGE EXPENSES; REORGANIZATION COSTS |
| 10.1. | The Trust, on behalf of the Acquiring Fund, and the Trust, on behalf of the Target Fund, represent and
warrant that there are no brokers or finders entitled to receive any payments in connection with the transactions provided for herein. |
| 10.2. | KKM will pay for the legal costs incurred by the Funds associated with the Reorganization directly and
will pay for other costs incurred by the Funds associated with the Reorganization (including printing and mailing expenses) by waiving
fees or reimbursing expenses to offset the costs incurred by the Target Fund and Acquiring Fund associated with the Reorganization. The
costs of the Reorganization shall include, but not be limited to, costs associated with obtaining any necessary order of exemption from
the 1940 Act, preparation and filing of the Registration Statement and printing and distribution of the Information Statement/Prospectus,
legal fees, accounting fees, and securities registration fees. Brokerage fees and expenses related to the disposition and acquisition
of Assets (including any disposition to raise cash to pay redemption proceeds) that are incurred in the ordinary course of business will
not be covered by KKM. Notwithstanding any of the foregoing, expenses will in any event be paid by the party directly incurring such expenses
if and to the extent that the payment by another person of such expenses would result in the disqualification of such party as a “regulated
investment company” within the meaning of Section 851 of the Code. |
| 11. | ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES |
| 11.1. | Each of the Trust, on behalf of the Acquiring Fund, and the Trust, on behalf of the Target Fund, agrees
that it has not made any representation, warranty nor covenant, on behalf of either the Target Fund or the Acquiring Fund, not set forth
herein and that this Agreement constitutes the entire agreement between the parties. |
| 11.2. | The representations, warranties and covenants contained in this Agreement or in any document delivered
pursuant hereto or in connection herewith shall survive the consummation of the transactions contemplated hereunder. The covenants to
be performed after the Closing shall survive the Closing. |
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned by resolution of the Trustees of the Trust with respect to either the Acquiring Fund or the Target
Fund at any time prior to the Closing Date, if circumstances should develop that, in the opinion of that Board, make proceeding with the
Agreement inadvisable with respect to the Acquiring Fund or the Target Fund, respectively.
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.
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 as follows:
Target Fund:
Essential 40 Stock Fund
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Elkhorn, NE 68022
Acquiring Fund:
Essential 40 Stock ETF
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Elkhorn, NE 68022
KKM:
KKM Financial, LLC:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇.
Suite 1711
Chicago, IL 60604
| 15. | HEADINGS; GOVERNING LAW; SEVERABILITY; ASSIGNMENT; LIMITATION OF LIABILITY |
| 15.1. | The Article and paragraph headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. |
| 15.2. | This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware
without regard to its principles of conflicts of laws. |
| 15.3. | 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 party. Nothing herein expressed or implied is intended or shall be construed to confer upon or give any person, firm
or corporation, other than the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of
this Agreement. |
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, each of the parties hereto
has caused this Agreement to be executed as of the date and year first above written.
| Northern Lights Fund Trust II, on behalf of Target Fund |
Northern Lights Fund Trust II, on behalf of Acquiring Fund |
| By: /s/ ▇▇▇▇▇ ▇▇▇▇ |
|
By: /s/ ▇▇▇▇▇ ▇▇▇▇ |
|
| Name: ▇▇▇▇▇ ▇▇▇▇ |
|
Name: ▇▇▇▇▇ ▇▇▇▇ |
|
| Title: President |
|
Title: President |
|
| With respect to paragraph 10.2 of this Agreement, Accepted and Acknowledged by: |
| KKM Financial, LLC |
| By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ |
|
| Title: Chief Executive Officer |
|
Schedule 4.1
Disclosure Form – Target Fund
Schedule 4.2
Disclosure Form – Acquiring Fund