Exhibit 4
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 15th day of June, 2001, by and between ▇▇▇▇▇▇ Funds, a Massachusetts
business trust with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (the "Trust"), with respect to its ▇▇▇▇▇▇
Future Financial Services Fund, a separate investment series of the Trust (the
"Acquiring Fund"), and Professionally Managed Portfolios, a Massachusetts
business trust, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "PMP Trust"), with respect to its Titan Financial Services
Fund, a separate investment series of the PMP Trust (the "Transferring Fund"
and, collectively with the Acquiring Fund, the "Funds").
This Agreement is intended to be, and is adopted as, a plan of
reorganization and liquidation within the meaning of Section 368(a) of the
United States Internal Revenue Code of 1986, as amended (the "Code"). The
reorganization will consist of (i) the transfer of all of the assets of the
Transferring Fund in exchange for shares of the Acquiring Fund ("Acquiring Fund
Shares"); (ii) the assumption by Acquiring Fund of all of the Transferring
Fund's liabilities; and (iii) the distribution, after the Closing Date (defined
below), of the Acquiring Fund Shares to the shareholders of the Transferring
Fund and the liquidation of the Transferring Fund as provided herein, all upon
the terms and conditions set forth in this Agreement (the "Reorganization").
WHEREAS, the Acquiring Fund and the Transferring Fund are separate
investment series of the Trust and the PMP Trust, respectively, and the Trust
and the PMP Trust are open-end, registered management investment companies and
the Transferring Fund owns securities that generally are assets of the character
in which the Acquiring Fund is permitted to invest;
WHEREAS, each Fund is authorized to issue its shares of beneficial
interest;
WHEREAS, the Trustees of the Trust have determined that the Reorganization
in the best interests of the Acquiring Fund's shareholders; and
WHEREAS, the Trustees of the PMP Trust have determined that the
Reorganization with respect to the Transferring Fund is in the best interests of
the Transferring Fund's shareholders and that the interests of the existing
shareholders of the Transferring Fund will not be diluted as a result of the
Reorganization.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows;
ARTICLE I
TRANSFER OF ASSETS OF THE TRANSFERING FUND IN EXCHANGE FOR
ACQUIRING FUND SHARES AND THE ASSUMPTION OF TRANSFERING FUND'S
LIABILITIES AND LIQUIDATION OF TRANSFERING FUND
1.1 THE EXCHANGE. Subject to the terms and conditions contained herein and
on the basis of the representations and warranties contained herein, the
Transferring Fund agrees to transfer all of its assets, as set forth in
paragraph 1.2, to Acquiring Fund. In exchange, Acquiring Fund agrees: (i) to
deliver to Transferring Fund the number of full and fractional shares of the
Acquiring Fund Shares, determined by (a) multiplying the shares outstanding of
the Transferring Fund by (b) the ratio computed by dividing (x) the net asset
value per share of the Transferring Fund by (y) the net asset value per share of
the Acquiring Fund Shares computed in the manner and as of the time and date set
forth in paragraph 2.2; and (ii) to assume all of the liabilities of the
Transferring Fund, as set forth in paragraph 1.3. Such transactions shall take
place at the Closing provided for in paragraph 3.1.
1.2 ASSETS TO BE ACQUIRED. The assets of the Transferring Fund to be
acquired by Acquiring Fund shall consist of all property, including, without
limitation, all cash, securities, commodities, interests in futures and
dividends or interest receivables, owned by the Transferring Fund and any
deferred or prepaid expenses shown as an asset on the books of the Transferring
Fund on the Closing Date.
The Transferring Fund has provided Acquiring Fund with its most recent
audited financial statements, which contain a list of all of the Transferring
Fund's assets as of the date of such statements. The Transferring Fund hereby
represents that as of the date of the execution of this Agreement, there have
been no changes in its financial position as reflected in said financial
statements other than those occurring in the ordinary course of business in
connection with the purchase and sale of securities and the payment of normal
operating expenses and the payment of dividends, capital gains distributions and
redemption proceeds to its shareholders.
The Transferring Fund will, within a reasonable period of time prior to the
Closing Date, furnish the Acquiring Fund with a list of the Transferring Fund's
portfolio securities and other investments. The Acquiring Fund will, within a
reasonable time prior to the Closing Date, furnish the Transferring Fund with a
list of the securities, if any, on the Transferring Fund's list referred to
above that do not conform to the Acquiring Fund's investment objectives,
policies, and restrictions. The Transferring Fund, if requested by the Acquiring
Fund, will dispose of securities on the Acquiring Fund's list prior to the
Closing Date. In addition, if it is determined that the portfolios of the
Transferring Fund and the Acquiring Fund, when aggregated, would contain
investments exceeding certain percentage limitations imposed upon the Acquiring
Fund with respect to such investments, the Transferring Fund, if requested by
the Acquiring Fund, shall dispose of a sufficient amount of such investments as
may be necessary to avoid violating such limitations as of the Closing Date.
Notwithstanding the foregoing, nothing herein shall
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require the Transferring Fund to dispose of any investments or securities if, in
the reasonable judgment of the Transferring Fund's trustees or adviser, such
disposition would adversely affect the tax-free nature of the Reorganization or
would violate their fiduciary duties to the Transferring Fund's shareholders.
1.3 LIABILITIES TO BE ASSUMED. The Acquiring Fund shall assume all of the
Transferring Fund's liabilities, expenses, costs, charges and reserves.
1.4 LIQUIDATION AND DISTRIBUTION. On or as soon after the Closing Date as
is conveniently practicable (the "Liquidation Date"): (a) the Transferring Fund
will distribute in complete liquidation of the Transferring Fund, PRO RATA to
its shareholders of record, determined as of the close of business on the
Valuation Date (as defined in paragraph 2.1)(the "Transferring Fund
Shareholders"), Acquiring Fund Shares received by the Transferring Fund pursuant
to paragraph 1.1; and (b) the Transferring Fund will thereupon proceed to
dissolve and terminate as set forth in paragraph 1.8 below. Such distribution
will be accomplished by the transfer of Acquiring Fund Shares credited to the
account of the Transferring Fund on the books of the Acquiring Fund to open
accounts on the share records of the Acquiring Fund in the name of the
Transferring Fund Shareholders, and representing the PRO RATA number of
Acquiring Fund Shares due such shareholders. All issued and outstanding shares
of the Transferring Fund will simultaneously be canceled on the books of the
Transferring Fund. The Acquiring Fund shall not issue certificates representing
Acquiring Fund Shares in connection with such transfer. The Transferring Fund
Shareholders shall have the right to receive any unpaid dividends or other
distributions that were declared by the Transferring Fund before the Effective
Time (as defined in paragraph 3.1) with respect to Transferring Fund shares that
are held of record by a Transferring Fund Shareholder at the Effective Time.
1.5 OWNERSHIP OF SHARES. Ownership of Acquiring Fund Shares will be shown
on the books of the Acquiring Fund's transfer agent. Shares of the Acquiring
Fund will be issued simultaneously to the Transferring Fund, in an amount equal
in value to the net asset value of the Transferring Fund's shares, to be
distributed to Transferring Fund Shareholders.
1.6 TRANSFER TAXES. Any transfer taxes payable upon the issuance of
Acquiring Fund Shares in a name other than the registered holder of the
Transferring Fund shares on the books of the Transferring Fund as of that time
shall, as a condition of such issuance and transfer, be paid by the person to
whom such Acquiring Fund Shares are to be issued and transferred.
1.7 REPORTING RESPONSIBILITY. Any reporting responsibility of the
Transferring Fund is and shall remain the responsibility of the Transferring
Fund, up to and including the Closing Date, and such later date on which the
Transferring Fund is terminated.
1.8 TERMINATION. The Transferring Fund shall be terminated promptly
following the Closing Date and the making of all distributions pursuant to
paragraph 1.4.
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ARTICLE II
VALUATION
2.1 VALUATION OF ASSETS. The value of the Transferring Fund's assets to be
acquired by the Acquiring Fund hereunder shall be the value of such assets
computed as of the close of normal trading on the New York Stock Exchange
("NYSE") on the business day immediately prior to the Closing Date (such time
and date being hereinafter called the "Valuation Date"), using the valuation
procedures set forth in the Trust's Declaration of Trust and the Acquiring
Fund's then current prospectuses and statements of additional information or
such other valuation procedures as shall be mutually agreed upon by the parties.
2.2 VALUATION OF SHARES. The net asset value per share of Acquiring Fund
Shares shall be the net asset value per share computed as of the close of normal
trading on the NYSE on the Valuation Date, using the valuation procedures set
forth in the Trust's Declaration of Trust and the Acquiring Fund's then current
prospectuses and statements of additional information.
2.3 SHARES TO BE ISSUED. The number of Acquiring Fund Shares to be issued
(including fractional shares, if any) in exchange for the Transferring Fund's
assets, shall be determined by (a) multiplying the shares outstanding of the
Transferring Fund by (b) the ratio computed by (x) dividing the net asset value
per share of the Transferring Fund by (y) the net asset value per share of the
Acquiring Fund determined in accordance with paragraph 2.2 [(a) x (b), where
(b)=(x)/(y)].
2.4 DETERMINATION OF VALUE. All computations of value shall be made by the
Acquiring Fund's pricing agent in accordance with its regular practice in
pricing the shares and assets of the Acquiring Fund. The Acquiring Fund and
Transferring Fund agree, however, to use all commercially reasonable efforts to
resolve any material pricing differences between the prices of portfolio
securities determined in accordance with the pricing policies and procedures of
the Transferring Fund and those determined in accordance with the pricing
policies and procedures of the Acquiring Fund.
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ARTICLE III
CLOSING AND CLOSING DATES
3.1 CLOSING DATE. The closing (the "Closing") shall occur on or about
September 24, 2001, or such other date as the parties may agree to in writing
(the "Closing Date"). All acts taking place at the Closing shall be deemed to
take place immediately prior to the Closing Date unless otherwise provided. The
Closing shall be held as of 9:00 a.m. (the "Effective Time") at the offices of
SEI Investments ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other time and/or
place as the parties may agree.
3.2 CUSTODIAN'S CERTIFICATE. First Institutional Custody Services, as
custodian for the Transferring Fund (the "Custodian"), shall deliver at the
Closing a certificate of an authorized officer stating that: (a) the
Transferring Fund's portfolio securities, cash, and any other assets shall have
been delivered in proper form to the Acquiring Fund on the Closing Date; and (b)
all necessary taxes including all applicable federal and state stock transfer
stamps, if any, shall have been paid, or provision for payment shall have been
made, in conjunction with the delivery of portfolio securities by the
Transferring Fund.
3.3 EFFECT OF SUSPENSION IN TRADING. In the event that on the Valuation
Date, either: (a) the NYSE or another primary exchange on which the portfolio
securities of the Acquiring Fund or the Transferring Fund are purchased or sold,
shall be closed to trading or trading on such exchange shall be restricted; or
(b) trading or the reporting of trading on the NYSE or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of the
Acquiring Fund or the Transferring Fund is impracticable, the Valuation Date
shall be postponed until the first business day after the day when trading is
fully resumed and reporting is restored.
3.4 TRANSFER AGENT'S CERTIFICATE. American Data Services, Inc., as transfer
agent for the Transferring Fund as of the Closing Date, shall deliver at the
Closing a certificate of an authorized officer stating that its records contain
the names and addresses of the Transferring Fund Shareholders, and the number
and percentage ownership of outstanding shares owned by each such shareholder
immediately prior to the Closing. The Acquiring Fund shall issue and deliver or
cause DST Systems, Inc., its transfer agent, to issue and deliver a confirmation
evidencing Acquiring Fund Shares to be credited on the Closing Date to the
Secretary of the PMP Trust or provide evidence satisfactory to the Transferring
Fund that such Acquiring Fund Shares have been credited to the Transferring
Fund's account on the books of the Acquiring Fund. At the Closing, each party
shall deliver to the other such bills of sale, checks, assignments, share
certificates, receipts and other documents, if any, as such other party or its
counsel may reasonably request.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS OF THE TRANSFERRING FUND. The Transferring Fund
represents and warrants to the Acquiring Fund as follows:
(a) The Transferring Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing, and in good
standing under the laws of the Commonwealth of Massachusetts.
(b) The Transferring Fund is a separate investment series of a
Massachusetts business trust that is registered as an open-end management
investment company, and its registration with the Securities and Exchange
Commission (the "Commission") as an investment company under the Investment
Company Act of 1940 (the "1940 Act"), is in full force and effect.
(c) The current prospectuses and statements of additional information
of the Transferring Fund conform in all material respects to the applicable
requirements of the Securities Act of 1933 (the "1933 Act") and the 1940
Act, and the rules and regulations thereunder, and do not include any
untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to
statements or materials included in current prospectuses and statements of
additional information that were formulated or supplied by Titan Investor
Advisors LLC.
(d) The Transferring Fund is not, and the execution, delivery, and
performance of this Agreement (subject to shareholder approval) will not
result, in violation of any provision of the PMP Trust's Declaration of
Trust or By-Laws or of any material agreement, indenture, instrument,
contract, lease, or other undertaking to which the Transferring Fund is a
party to/or by which it is bound.
(e) The Transferring Fund has no material contracts or other
commitments (other than this Agreement) that will be terminated with
liability to it prior to the Closing Date.
(f) Except as otherwise disclosed in writing to and accepted by the
Acquiring Fund, no litigation, administrative proceeding, or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Transferring Fund or any of its properties
or assets, which, if adversely determined, would materially and adversely
affect its financial condition, the conduct of its business, or the ability
of the Transferring Fund to carry out the transactions contemplated by this
Agreement. The Transferring Fund knows of no facts that might form the
basis for the institution of such
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proceedings and is not a party to or subject to the provisions of any
order, decree, or judgment of any court or governmental body that
materially and adversely affects the Transferring Fund's business or its
ability to consummate the transactions contemplated herein.
(g) The financial statements of the Transferring Fund are in
accordance with generally accepted accounting principles, and such
statements (copies of which have been furnished to the Acquiring Funds)
fairly reflect the financial condition of the Transferring Fund as of April
30, 2001, and there are no known contingent liabilities of the Transferring
Fund as of that date not disclosed in such statements.
(h) Since April 30, 2001, there have been no material adverse changes
in the Transferring Fund's financial condition, assets, liabilities for
business (other than changes occurring in the ordinary course of business),
or any incurrence by the Transferring Fund of indebtedness maturing more
than one (1) year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Acquiring Fund. For the purposes
of this subparagraph (h), a decline in the value of the net assets of the
Transferring Fund shall not constitute a material adverse change.
(i) At the Closing Date, all federal and other tax returns and reports
of the Transferring Fund required by law to be filed by such date, or
reasonably thereafter, shall have been filed, and all federal and other
taxes shown due on such returns and reports shall have been paid, or
provision shall have been made for the payment thereof. To the best of the
Transferring Fund's knowledge, no such return is currently under audit, and
no assessment has been asserted with respect to such returns.
(j) For each fiscal year of its operation, the Transferring Fund has
met the requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company and has distributed in each
such year all net investment income and realized capital gains.
(k) All issued and outstanding shares of the Transferring Fund are,
and at the Closing Date will be, duly and validly issued and outstanding,
fully paid and non-assessable by the Transferring Fund. All of the issued
and outstanding shares of the Transferring Fund will, at the time of the
Closing Date, be held by the persons and in the amounts set forth in the
records of the Transferring Fund's transfer agent as provided in paragraph
3.4. The Transferring Fund has no outstanding options, warrants, or other
rights to subscribe for or purchase any of the Transferring Fund shares,
and have no outstanding securities convertible into any of the Transferring
Fund shares.
(l) At the Closing Date, the Transferring Fund will have good and
marketable title to the Transferring Fund's assets to be transferred to the
Acquiring Fund pursuant to paragraph 1.2, and full right, power, and
authority to sell, assign, transfer, and deliver such assets hereunder,
and, upon delivery and payment for such assets the Acquiring Fund will
acquire good
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and marketable title, subject to no restrictions on the full transfer of
such assets, including such restrictions as might arise under the 1933 Act,
other than as disclosed to and accepted by the Acquiring Fund.
(m) The execution, delivery, and performance of this Agreement
have been duly authorized by all necessary action on the part of the
Transferring Fund. Subject to approval by the Transferring Fund
Shareholders, this Agreement constitutes a valid and binding obligation
of the Transferring 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.
(n) The information to be furnished by the Transferring Fund for use
in no-action letters, applications for orders, registration statements,
proxy materials, and other documents that may be necessary in connection
with the transactions contemplated herein shall be accurate and complete in
all material respects and shall comply in all material respects with
federal securities and other laws and regulations.
(o) From the effective date of the Registration Statement (as defined
in paragraph 5.7), through the time of the meeting of the Transferring Fund
Shareholders and on the Closing Date, any written information furnished by
the PMP Trust with respect to the Transferring Fund for use in the
Prospectus/Proxy Statement (as defined in paragraph 5.7), the Registration
Statement or any other materials provided in connection with the
Reorganization does not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated or
necessary to make the statements, in light of the circumstances under which
such statements were made, not misleading.
(p) The Transferring Fund has elected to qualify and has qualified as
a "regulated investment company" under the Code, as of and since its first
taxable year; has been a "regulated investment company" under the Code at
all times since the end of its first taxable year when it so qualified; and
qualifies and shall continue to qualify as a "regulated investment company"
under the Code for its taxable year ending upon its liquidation.
(q) No governmental consents, approvals, authorizations or filings are
required under the 1933 Act, the Securities Exchange Act of 1934 (the "1934
Act"), the 1940 Act or Massachusetts law for the execution of this
Agreement by the PMP Trust, for itself and on behalf of the Transferring
Fund, except for the effectiveness of the Registration Statement and except
for such other consents, approvals, authorizations and filings as have been
made or received, and such consents, approvals, authorizations and filings
as may be required subsequent to the Closing Date, it being understood,
however, that this Agreement and the transactions contemplated herein must
be approved by the shareholders of the Transferring Fund as described in
paragraph 5.2.
4.2 REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Fund represents
and warrants to the Transferring Fund as follows:
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(a) The Acquiring Fund is a separate investment series of a
Massachusetts business trust, duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts.
(b) The Acquiring Fund is a separate investment series of a
Massachusetts business trust that is registered as an open-end management
investment company, and its registration with the Commission as an
investment company under the 1940 Act is in full force and effect.
(c) The current prospectuses and statements of additional information
of the Acquiring Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and regulations
thereunder, and do not include any untrue statement of a material fact or
omit to state any material fact required to be stated or necessary to make
such statements therein, in light of the circumstances under which they
were made, not misleading.
(d) The Acquiring Fund is not, and the execution, delivery and
performance of this Agreement will not result, in violation of the Trust's
Declaration of Trust or By-Laws or of any material agreement, indenture,
instrument, contract, lease, or other undertaking to which the Acquiring
Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to the Transferring Fund
and accepted by the Transferring Fund, no litigation, administrative
proceeding or investigation of or before any court or governmental body is
presently pending, or to its knowledge, threatened against the Acquiring
Fund or any of its properties or assets, which, if adversely determined,
would materially and adversely affect its financial condition and the
conduct of its business or the ability of the Acquiring Fund to carry out
the transactions contemplated by this Agreement. The Acquiring Fund knows
of no facts that might form the basis for the institution of such
proceedings and it is not a party to or subject to the provisions of any
order, decree, or judgment of any court or governmental body that
materially and adversely affects its business or its ability to consummate
the transactions contemplated herein.
(f) The financial statements of the Acquiring Fund, are in accordance
with generally accepted accounting principles, and such statements (copies
of which have been furnished to the Transferring Fund) fairly reflect the
financial condition of the Acquiring Fund as of September 30, 2000, and
there are no known contingent liabilities of the Acquiring Fund as of such
date which are not disclosed in such statements.
(g) Since September 30, 2000, there have been no material adverse
changes 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 maturing
more than one (1) year from the date such indebtedness was incurred,
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except as otherwise disclosed to and accepted by the Transferring Fund. For
the purposes of this subparagraph (g), a decline in the value of the net
assets of the Acquiring Fund shall not constitute a material adverse
change.
(h) At the Closing Date, all federal and other tax returns and reports
of the Acquiring Fund required by law to be filed by such date shall have
been filed. All federal and other taxes shown due on such returns and
reports shall have been paid or provision shall have been made for their
payment. To the best of the Acquiring Fund's knowledge, no such return is
currently under audit, and no assessment has been asserted with respect to
such returns.
(i) For each fiscal year of their operation, the Acquiring Fund has
met the requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company and has distributed all net
investment income and realized capital gains.
(j) All issued and outstanding Acquiring Fund Shares are, and at the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by the Acquiring Fund. The Acquiring Fund has no
outstanding options, warrants, or other rights to subscribe for or purchase
any Acquiring Fund Shares, and there are no outstanding securities
convertible into any Acquiring Fund Shares.
(k) The execution, delivery, and performance of this Agreement have
been duly authorized by all necessary action on the part of the Acquiring
Fund, and this Agreement constitutes a valid and binding obligation 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.
(1) The Acquiring Fund Shares to be issued and delivered to the
Transferring Fund for the account of the Transferring Fund Shareholders
pursuant to the terms of this Agreement will, at the Closing Date, have
been duly authorized. When so issued and delivered, such shares will be
duly and validly issued Acquiring Fund Shares, and will be fully paid and
non-assessable.
(m) The information to be furnished by the Acquiring Fund for use in
no-action letters, applications for orders, registration statements, proxy
materials, and other documents that may be necessary in connection with the
transactions contemplated herein shall be accurate and complete in all
material respects and shall comply in all material respects with federal
securities and other laws and regulations.
(n) From the effective date of the Registration Statement (as defined
in paragraph 5.7), through the time of the meeting of the Transferring Fund
Shareholders and on the Closing Date, any written information furnished by
the Trust with respect to the Acquiring Fund for use in the
Prospectus/Proxy Statement (as defined paragraph 5.7), the Registration
Statement or any other materials provided in connection with the
Reorganization does not and will not
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contain any untrue statement of a material fact or omit to state a material
fact required to be stated or necessary to make the statements, in light of
the circumstances under which such statements were made, not misleading.
(o) The Acquiring Fund agrees to use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act, the 1940 Act,
and any state Blue Sky or securities laws as it may deem appropriate in
order to continue its operations after the Closing Date.
(p) No governmental consents, approvals, authorizations or filings are
required under the 1933 Act, the 1934 Act, the 1940 Act or Massachusetts
law for the execution of this Agreement by the Trust, for itself and on
behalf of the Acquiring Fund, or the performance of the Agreement by the
Trust, for itself and on behalf of the Acquiring Fund, except for the
effectiveness of the Registration Statement and such other consents,
approvals, authorizations and filings as have been made or received, and
except for such consents, approvals, authorizations and filings as may be
required subsequent to the Closing Date.
(q) The Acquiring Fund has elected to qualify and has qualified as a
"regulated investment company" under the Code as of and since its first
taxable year; has been a "regulated investment company" under the Code at
all times since the end of its first taxable year when it so qualified; and
qualifies and shall continue to qualify as a "regulated investment company"
under the Code for its current taxable year.
ARTICLE V
COVENANTS OF THE ACQUIRING FUND AND THE TRANSFERRING FUND
5.1 OPERATION IN ORDINARY COURSE. Subject to paragraph 8.5, the Acquiring
Fund and the Transferring Fund will operate their respective businesses in the
ordinary course between the date of this Agreement and the Closing Date, it
being understood that such ordinary course of business will include customary
dividends and distributions and shareholder redemptions.
5.2 APPROVAL OF SHAREHOLDERS. The PMP Trust will call a meeting of the
Transferring Fund Shareholders to consider and act upon this Agreement and to
take all other action necessary to obtain approval of the transactions
contemplated herein.
5.3 INVESTMENT REPRESENTATION. The Transferring Fund covenants that the
Acquiring Fund Shares to be issued pursuant to this Agreement are not being
acquired for the purpose of making any distribution, other than in connection
with the Reorganization and in accordance with the terms of this Agreement.
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5.4 ADDITIONAL INFORMATION. The Transferring Fund will assist the Acquiring
Fund in obtaining such information as the Acquiring Fund reasonably requests
concerning the beneficial ownership of the Transferring Fund shares.
5.5 FURTHER ACTION. Subject to the provisions of this Agreement, the
Acquiring Fund and the Transferring Fund will each take or cause to be taken,
all action, and do or cause to be done, all things reasonably necessary, proper
or advisable to consummate and make effective the transactions contemplated by
this Agreement, including any actions required to be taken after the Closing
Date.
5.6 STATEMENT OF EARNINGS AND PROFITS. As promptly as practicable, but in
any case within sixty (60) days after the Closing Date, the Transferring Fund
shall furnish the Acquiring Fund, in such form as is reasonably satisfactory to
the Acquiring Fund, a statement of the earnings and profits of the Transferring
Fund for federal income tax purposes that will be carried over by the Acquiring
Fund as a result of Section 381 of the Code, and which will be reviewed by Ernst
& Young LLP and certified by the PMP Trust's Treasurer.
5.7 PREPARATION OF FORM N-14 REGISTRATION STATEMENT. The Trust will prepare
and file with the Commission a registration statement on Form N-14 under the
1933 Act (the "Registration Statement"), relating to the Acquiring Fund Shares,
which, without limitation, shall include a proxy statement of the Transferring
Fund and the prospectus of the Acquiring Fund relating to the transactions
contemplated by this Agreement (the "Prospectus/Proxy Statement"). The
Registration Statement shall be in compliance with the 1933 Act, the 1934 Act
and the 1940 Act. The Transferring Fund will provide the Acquiring Fund with the
materials and information necessary to prepare the Prospectus/Proxy Statement
for inclusion in the Registration Statement, in connection with the meeting of
the Transferring Funds Shareholders to consider the approval of this Agreement
and the transactions contemplated herein.
5.8 INDEMNIFICATION OF THE PMP TRUSTEES. The Trust will assume all
liabilities and obligations of PMP Trust relating to any obligation of the PMP
Trust to indemnify its current and former Trustees and officers, acting in their
capacities as such, to the fullest extent permitted by law and the PMP Trust's
Agreement and Declaration of Trust, as in effect as of the date of this
Agreement. Without limiting the foregoing, the Trust agrees that all rights to
indemnification and all limitations of liability existing in favor of the
current and former Trustees and officers, acting in their capacities as such,
under the PMP Trust's Agreement and Declaration of Trust as in effect as of the
date of this Agreement shall survive the Reorganization and shall continue in
full force and effect, without any amendment thereto, and shall constitute
rights which may be asserted against the Trust, its successors or assigns.
12
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRANSFERRING FUND
The obligations of the Transferring Fund to consummate the transactions
provided for herein shall be subject, at their election, to the performance by
the Acquiring Fund of all the obligations to be performed by it pursuant to this
Agreement on or before the Closing Date, and, in addition subject to the
following conditions:
6.1 All representations, covenants, and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct as of the date hereof and
as of the Closing Date, with the same force and effect as if made on and as of
the Closing Date. The Acquiring Fund shall have delivered to the Transferring
Fund a certificate executed in the Acquiring Fund's name by the Trust's
President or Vice President and its Treasurer or Assistant Treasurer, in form
and substance satisfactory to the Transferring Fund and dated as of the Closing
Date, to such effect and as to such other matters as the Transferring Fund shall
reasonably request.
6.2 The Transferring Fund shall have received on the Closing Date an
opinion from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Trust, dated as of the
Closing Date, in a form reasonably satisfactory to the Transferring Fund,
covering the following points:
(a) The Acquiring Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts, and has the
power to own all of its properties and assets and to carry on its business
as presently conducted.
(b) The Acquiring Fund is a separate investment series of a
Massachusetts business trust registered as an investment company under the
1940 Act, and, to such counsel's knowledge, such registration with the
Commission is in full force and effect.
(c) This Agreement has been duly authorized, executed, and delivered
by the Trust on behalf of the Acquiring Fund and, assuming due
authorization, execution and delivery of this Agreement by the Transferring
Fund, is a valid and binding obligation of the Acquiring Fund enforceable
against the Acquiring Fund in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and to
general equity principles.
(d) Assuming that a consideration of not less than the net asset value
of Acquiring Fund Shares has been paid, Acquiring Fund Shares to be issued
and delivered to the Transferring Fund on behalf of the Transferring Fund
Shareholders, as provided by this Agreement, are duly authorized and upon
such delivery will be legally issued and outstanding and fully paid and
non-assessable, and no shareholder of Acquiring Fund has any preemptive
rights with respect to Acquiring Fund Shares.
13
(e) The Registration Statement, has been declared effective by the
Commission and to such counsel's knowledge, no stop order under the 1933
Act pertaining thereto has been issued, and to the knowledge of such
counsel, no consent, approval, authorization or order of any court or
governmental authority of the United States or the Commonwealth of
Massachusetts is required for consummation by the Acquiring Fund of the
transactions contemplated herein, except as have been obtained under the
1933 Act, the 1934 Act and the 1940 Act, and as may be required under state
securities laws or where the failure to obtain such consent, approval,
order, or authorization would not have a material adverse affect on the
operations of the Trust or the Acquiring Fund.
(f) The execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated herein will not, result in a
violation of the Trust's Declaration of Trust or By-Laws or any provision
of any material agreement, indenture, instrument, contract, lease or other
undertaking (in each case known to such counsel) to which the Acquiring
Fund is a party or by which the Acquiring Fund or any of its properties may
be bound or, to the knowledge of such counsel, result in the acceleration
of any obligation or the imposition of any penalty, under any agreement,
judgment, or decree to which the Acquiring Fund is a party or by which it
is bound.
(g) The descriptions in the Prospectus/Proxy Statement of statutes,
legal and governmental proceedings and material contracts, if any (only
insofar as they relate to the Acquiring Fund), are accurate and fairly
present the information required to be shown.
(h) Such counsel does not know of any legal or governmental
proceedings (only insofar as they relate to the Acquiring Fund) existing on
or before the effective date of the Registration Statement or the Closing
Date which are required to be described in the Registration Statement or to
be filed as exhibits to the Registration Statement which are not described
or filed as required.
(i) To the knowledge of such counsel, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or threatened as to the Acquiring Fund or any of its
properties or assets. To the knowledge of such counsel, the Acquiring Fund
is not a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body, which materially and adversely
affects the Acquiring Fund's business, other than as previously disclosed
in the Registration Statement.
Such counsel shall also state that they have participated in conferences
with officers and other representatives of the Acquiring Fund at which the
contents of the Prospectus/Proxy Statement and related matters were discussed.
Although such counsel are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Prospectus/Proxy Statement (except to the extent indicated in their opinion in
paragraph (g), above), on the basis of the foregoing (relying as to materiality
to a large extent
14
upon the opinions of the Trust's officers and other representatives of the
Acquiring Fund), no facts have come to their attention that lead them to believe
that the Prospectus/Proxy Statement as of its date, as of the date of the
Transferring Fund Shareholders' meeting, and as of the Closing Date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated regarding the Acquiring Fund or necessary, in the light of
the circumstances under which they were made, to make the such statements
regarding the Acquiring Fund not misleading. Such opinion may state that such
counsel does not express any opinion or belief as to the financial statements or
any financial or statistical data, or as to the information relating to the
Transferring Fund, contained in the Prospectus/Proxy Statement or the
Registration Statement, and that such opinion is solely for the benefit of the
PMP Trust and the Transferring Fund. Such opinion shall contain such other
assumptions and limitations as shall be in the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ &
Bockius LLP appropriate to render the opinions expressed therein.
In this paragraph 6.2, references to the Prospectus/Proxy Statement include
and relate to only the text of such Prospectus/Proxy Statement and not to any
exhibits or attachments thereto or to any documents incorporated by reference
therein.
6.3 As of the Closing Date with respect to the Reorganization of the
Transferring Fund, there shall have been no material change in the investment
objective, policies and restrictions nor any material change in the investment
management fees, other fees payable for services provided to the Acquiring Fund,
fee waiver or expense reimbursement undertakings of the Acquiring Fund from
those fee amounts and undertakings of the Acquiring Fund described in the
Prospectus/Proxy Statement.
6.4 For the period beginning at the Closing Date and ending not less than
six (6) years thereafter, the Trust, its successor or assigns shall provide, or
cause to be provided, liability coverage at least as comparable to the liability
coverage currently applicable to both former and current Trustees and officers
of the PMP Trust, covering the actions of such Trustees and officers of the PMP
Trust for the period they served as such.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to consummate the transactions
provided for herein shall be subject, at their election, to the performance by
the Transferring Fund of all the obligations to be performed by the Transferring
Fund pursuant to this Agreement, on or before the Closing Date and, in addition,
shall be subject to the following conditions:
7.1 All representations, covenants, and warranties of the Transferring Fund
contained in this Agreement shall be true and correct as of the date hereof and
as of the Closing Date, with the same force and effect as if made on and as of
the Closing Date. The Transferring Fund shall have delivered to the Acquiring
Fund on the Closing Date a certificate executed in the
15
Transferring Fund's name by the PMP Trust's President or Vice President and the
Treasurer or Assistant Treasurer, in form and substance satisfactory to the
Acquiring Fund and dated as of the Closing Date, to such effect and as to such
other matters as the Acquiring Fund shall reasonably request.
7.2 The Transferring Fund shall have delivered to the Acquiring Fund a
statement of the Transferring Fund's assets and liabilities, together with a
list of the Transferring Fund's portfolio securities showing the tax costs of
such securities by lot and the holding periods of such securities, as of the
Closing Date, certified by the Treasurer of PMP Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an opinion
of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Transferring Fund,
dated as of the Closing Date in a form satisfactory to the Acquiring Fund
covering the following points:
(a) The Transferring Fund is a separate investment series of a
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
power to own all of its properties and assets and to carry on its business
as presently conducted.
(b) The Transferring Fund is a separate investment series of a
Massachusetts business trust registered as an investment company under the
1940 Act, and, to such counsel's knowledge, such registration with the
Commission is in full force and effect.
(c) This Agreement has been duly authorized, executed and delivered by
the PMP Trust on behalf of the Transferring Fund and, assuming due
authorization, execution and delivery of this Agreement by the Trust on
behalf of the Acquiring Fund is a valid and binding obligation of the
Transferring Fund enforceable against the Transferring Fund in accordance
with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and to general equity principles.
(d) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority of the United
States or the Commonwealth of Massachusetts is required for consummation by
the Transferring Fund of the transactions contemplated herein, except as
have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and
as may be required under state securities laws or where the failure to
obtain such consent, approval, order, or authorization would not have a
material adverse affect on the operations of the PMP Trust or the
Transferring Fund.
(e) The execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated hereby will not, result in a
violation of the PMP Trust's Declaration of Trust or By-laws, or any
provision of any material agreement, indenture, instrument, contract, lease
or other undertaking (in each case known to such counsel) to which the
Transferring Fund is a party or by which it or any of its properties may be
bound or, to the
16
knowledge of such counsel, result in the acceleration of any obligation or
the imposition of any penalty, under any agreement, judgment, or decree to
which the Transferring Fund is a party or by which it is bound.
(f) The descriptions in the Prospectus/Proxy Statement of statutes,
legal and government proceedings and material contracts, if any (only
insofar as they relate to the Transferring Fund), are accurate and fairly
present the information required to be shown.
(g) Such counsel does not know of any legal or governmental
proceedings (insofar as they relate to the Transferring Fund) existing on
or before the date of mailing of the Prospectus/Proxy Statement and the
Closing Date, which are required to be described in the Prospectus/Proxy
Statement or to be filed as an exhibit to the Registration Statement which
are not described or filed as required.
(h) To the knowledge of such counsel, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or threatened as to the Transferring Fund or any of its
respective properties or assets. To the knowledge of such counsel, the
Transferring Fund is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body, which
materially and adversely affects the Transferring Fund's business other
than as previously disclosed in the Prospectus/Proxy Statement.
(i) Assuming that a consideration of not less than the net asset value
of Transferring Fund shares has been paid, and assuming that such shares
were issued in accordance with the terms of the Transferring Fund's
registration statement, or any amendment thereto, in effect at the time of
such issuance, all issued and outstanding shares of the Transferring Fund
are legally issued and fully paid and non-assessable.
Such counsel shall also state that they have participated in conferences
with officers and other representatives of the Transferring Fund at which the
contents of the Prospectus/Proxy Statement and related matters were discussed.
Although such counsel are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Prospectus/Proxy Statement (except to the extent indicated in their opinion at
paragraph (f), above), on the basis of the foregoing (relying as to materiality
to a large extent upon the opinions of the PMP Trust's officers and other
representatives of the Transferring Fund), no facts have come to their attention
that lead them to believe that the Prospectus/Proxy Statement as of its date, as
of the date of the Transferring Fund Shareholders' meeting, and as of the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein regarding the Transferring
Fund or necessary, in the light of the circumstances under which they were made,
to make the statements therein regarding the Transferring Fund not misleading.
Such opinion may state that such counsel do not express any opinion or belief as
to the financial statements or any financial or statistical data, or as to the
information relating to the Acquiring Fund contained in the Prospectus/Proxy
Statement or
17
Registration Statement, and that such opinion is solely for the benefit of the
Trust and the Acquiring Fund. Such opinion shall contain such other assumptions
and limitations as shall be in the opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP appropriate to render the opinions expressed herein.
In this paragraph 7.3, references to the Prospectus/Proxy Statement include
and relate to only the text of such Prospectus/Proxy Statement and not to any
exhibits or attachments thereto or to any documents incorporated by reference
therein.
ARTICLE VIII
FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
ACQUIRING FUND AND THE TRANSFERRING FUND
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Transferring Fund or the Acquiring Fund, the
other party to this Agreement shall, at its option, not be required to
consummate the transactions contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the holders of the outstanding shares of the
Transferring Fund in accordance with Massachusetts law and the provisions of the
PMP Trust's Declaration of Trust and By-Laws. Certified copies of the
resolutions evidencing such approval shall have been delivered to the Acquiring
Fund. Notwithstanding anything herein to the contrary, neither the Acquiring
Fund nor the Transferring Fund may waive the conditions set forth in this
paragraph 8.1.
8.2 On the Closing Date, the Commission shall not have issued an
unfavorable report under Section 25(b) of the 1940 Act, or instituted any
proceeding seeking to enjoin the consummation of the transactions contemplated
by this Agreement under Section 25(c) of the 1940 Act. Furthermore, no action,
suit or other proceeding shall be threatened or pending 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 required consents of other parties and all other consents, orders,
and permits of federal, state and local regulatory authorities (including those
of the Commission and of State Blue Sky securities authorities, including any
necessary "no-action" positions and exemptive orders from such federal and state
authorities) to permit consummation of the transactions contemplated herein
shall have been obtained, except where failure to obtain any such consent,
order, or permit would not involve a risk of a material adverse effect on the
assets or properties of the Acquiring Fund or the Transferring Fund, provided
that either party hereto may waive any such conditions for itself.
18
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. To the best knowledge of the parties to this Agreement, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the ▇▇▇▇ ▇▇▇.
8.5 The Transferring Fund shall have declared and paid a dividend or
dividends which, together with all previous such dividends, shall have the
effect of distributing to the Transferring Fund Shareholders all of the
Transferring Fund's net investment company taxable income for all taxable
periods ending on or prior to the Closing Dates (computed without regard to any
deduction for dividends paid) and all of its net capital gains realized in all
taxable periods ending on or prior to the Closing Date (after reduction for any
capital loss carry forward).
8.6 The parties shall have received a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ &
Bockius LLP addressed to the Acquiring Fund and the Transferring Fund
substantially to the effect that for federal income tax purposes with respect to
the Transferring Fund:
(a) The transfer of all of the Transferring Fund's assets in exchange
for Acquiring Fund Shares and the assumption by the Acquiring Fund of all
of the liabilities of the Transferring Fund (followed by the distribution
of Acquiring Fund Shares to the Transferring Fund Shareholders in
dissolution and liquidation of the Transferring Fund) will constitute a
"reorganization" within the meaning of Section 368(a) of the Code and the
Acquiring Fund and the Transferring Fund will each be a "party to a
reorganization" within the meaning of Section 368(b) of the Code.
(b) No gain or loss will be recognized by the Acquiring Fund upon the
receipt of the assets of the Transferring Fund solely in exchange for
Acquiring Fund Shares and the assumption by the Acquiring Fund of all of
the liabilities of the Transferring Fund.
(c) No gain or loss will be recognized by the Transferring Fund upon
the transfer of the Transferring Fund's assets to the Acquiring Fund in
exchange for Acquiring Fund Shares and the assumption by the Acquiring Fund
of all of the liabilities of the Transferring Fund or upon the distribution
(whether actual or constructive) of Acquiring Fund Shares to Transferring
Fund Shareholders in exchange for such shareholders' shares of the
Transferring Fund.
(d) No gain or loss will be recognized by the Transferring Fund
Shareholders upon the exchange of their Transferring Fund shares for
Acquiring Fund Shares in the Reorganization.
(e) The aggregate tax basis for Acquiring Fund Shares received by the
Transferring Fund Shareholder pursuant to the Reorganization will be the
same as the aggregate tax basis of the Transferring Fund shares exchanged
therefor by such shareholder.
19
E
(f) The holding period of Acquiring Fund Shares to be received by the
Transferring Fund Shareholder will include the period during which the
Transferring Fund shares exchanged therefore were held by such shareholder
provided the Transferring Fund shares are held as capital assets at the
time of the Reorganization).
(g) The tax basis of the Transferring Fund's assets acquired by the
Acquiring Fund will be the same as the tax basis of such assets to the
Transferring Fund immediately prior to the Reorganization.
(h) The holding period of the assets of the Transferring Fund in the
hands of the Acquiring Fund will include the period during which those
assets were held by the Transferring Fund.
Such opinion shall be based on customary assumptions and such
representations as ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may reasonably request, and the
Transferring Fund and Acquiring Fund will cooperate to make and certify the
accuracy of such representations. Notwithstanding anything herein to the
contrary, neither the Acquiring Fund nor the Transferring Fund may waive the
conditions set forth in this paragraph 8.6.
ARTICLE IX
EXPENSES
9.1 Except as otherwise provided for herein, ▇▇▇▇▇▇ Investment Partners,
Inc. will pay all special costs relating to the Acquiring Fund's and the
Transferring Fund's participation in the Reorganization and all related expenses
that are not appropriately assigned to the Transferring Fund. Such expenses
include, without limitation, (a) expenses associated with the preparation and
filing of the Registration Statement/Proxy Statement on Form N-14 under the 1933
Act covering Acquiring Fund Shares to be issued pursuant to the provisions of
this Agreement; (b) postage; (c) printing; (d) accounting fees, and (e)
solicitation costs associated with the Reorganization transaction.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Trust on behalf of the Acquiring Fund and the PMP Trust on behalf
of the Transferring Fund agree that neither party has made to the other party
any representation, warranty and/or covenant not set forth herein, and that this
Agreement constitutes the entire agreement between the parties.
20
10.2 Except as specified in the next sentence set forth in this section
10.2, the representations, warranties, and covenants contained in this Agreement
or in any document delivered pursuant to or in connection with this Agreement,
shall not survive the consummation of the transactions contemplated hereunder.
The covenants to be performed after the Closing and the obligations of the
Acquiring Funds in sections 5.8 and 6.4, shall continue in effect beyond the
consummation of the transactions contemplated hereunder.
ARTICLE XI
TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of the Trust
and the PMP Trust. In addition, either the Trust or the PMP Trust may at their
option terminate this Agreement at or prior to the Closing Date due to:
(a) a breach by the other of any representation, warranty, or
agreement contained herein to be performed at or prior to the Closing Date,
if not cured within 30 days; or
(b) a condition herein expressed to be precedent to the obligations of
the terminating party that has not been met and it reasonably appears that
it will not or cannot be met.
11.2 In the event of any such termination, in the absence of willful
default, there shall be no liability for damages on the part of the Acquiring
Fund, the Transferring Fund, the Trust, the PMP Trust, the respective Trustees
or officers, to the other party or its Trustees or officers.
ARTICLE XII
AMENDMENTS
12.1 This Agreement may be amended, modified, or supplemented in such
manner as may be mutually agreed upon in writing by the authorized officers of
the Transferring Fund and the Acquiring Fund; provided, however, that following
the meeting of the Transferring Fund Shareholders called by the Transferring
Fund pursuant to paragraph 5.2 of this Agreement, no such amendment may have the
effect of changing the provisions for determining the number of Acquiring Fund
Shares to be issued to the Transferring Fund Shareholders under this Agreement
to the detriment of such shareholders without their further approval.
21
ARTICLE XIII
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION OF LIABILITY
13.1 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.
13.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
13.3 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without giving effect to the
conflicts of laws provisions thereof.
13.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but, except as provided in
this paragraph, 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.
13.5 It is expressly agreed that the obligations of the Acquiring Fund and
the Transferring Fund hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents, or employees of the Trust or the PMP
Trust personally, as the case may be, but shall bind only the trust property of
the Acquiring Fund or the Transferring Fund, as the case may be, as provided in
the respective Declarations of Trust of the PMP Trust and the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust and the PMP Trust, on behalf of the Acquiring Fund and Transferring
Fund, respectively, and signed by authorized officers of each Trust, acting as
such. Neither the authorization by such Trustees nor the execution and delivery
by such officers shall be deemed to have been made by any of them individually
or to impose any liability on any of them personally, but shall bind only the
trust property of the Acquiring Fund and the Transferring Fund as provided in
the Declarations of Trust of the PMP Trust and the Trust, respectively.
22
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all as
of the date first written above.
TIP FUNDS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
PROFESSIONALLY MANAGED PORTFOLIOS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Trustee
For purposes of Article IX, Section
9.1,the undersigned executes this
agreement on behalf of ▇▇▇▇▇▇
Investment Partners, Inc.
▇▇▇▇▇▇ INVESTMENT PARTNERS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: General Counsel
23