Exhibit 4
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
this 18th day of April, 2002, by and between Kobren Growth Fund (the "Acquiring
Fund") and Kobren Moderate Growth Fund (the "Acquired Fund"), each a series of
Kobren Insight Funds, a Massachusetts business trust (the "Trust") and each with
their principal place of business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Acquiring Fund and the Acquired Fund are
sometimes referred to collectively herein as the "Funds" and individually as a
"Fund."
This Agreement is intended to be and is adopted as a plan of
"reorganization," as such term is used in Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"). The reorganization will consist of the
transfer of all of the assets of the Acquired Fund to the Acquiring Fund in
exchange solely for the issuance of shares of beneficial interest of the
Acquiring Fund (the "Acquiring Fund Shares") to the Acquired Fund and the
assumption by the Acquiring Fund of all of the liabilities of the Acquired Fund,
followed by the distribution by the Acquired Fund, on or promptly after the
Closing Date hereinafter referred to, of the Acquiring Fund Shares to the
shareholders of the Acquired Fund in liquidation and termination of the Acquired
Fund as provided herein, all upon the terms and conditions set forth in this
Agreement.
In consideration of the premises of the covenants and agreements
hereinafter set forth, the parties hereto covenant and agree as follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND IN EXCHANGE FOR ASSUMPTION
OF LIABILITIES AND ISSUANCE OF ACQUIRING FUND SHARES, LIQUIDATION OF THE
ACQUIRED FUND
1.1 The Acquired Fund will transfer all of its assets (consisting,
without limitation, of portfolio securities and instruments, dividends and
interest receivables, cash and other assets), as set forth in the statement of
assets and liabilities referred to in Paragraph 7.2 hereof (the "Statement of
Assets and Liabilities"), to the Acquiring Fund free and clear of all liens and
encumbrances, except as otherwise provided herein, in exchange for (i) the
assumption by the Acquiring Fund of the known and unknown liabilities of the
Acquired Fund, including the liabilities set forth in the Statement of Assets
and Liabilities (the "Acquired Fund Liabilities"), which shall be assigned and
transferred to the Acquiring Fund by the Acquired Fund and assumed by the
Acquiring Fund, and (ii) delivery by the Acquiring Fund to the Acquired Fund,
for distribution pro rata by the Acquired Fund to its shareholders in proportion
to their respective ownership of shares of beneficial interest of the Acquired
Fund, as of the close of business on April 26, 2002 (the "Closing Date"), of a
number of the Acquiring Fund Shares having an aggregate net asset value equal to
the value of the assets, less such liabilities (herein referred to as the "net
value of the assets") assumed, assigned and delivered, all determined as
provided in Paragraph 2.1 hereof and as of a date and time as specified therein.
Such transactions shall take place at the closing provided for in Paragraph 3.1
hereof (the "Closing"). All computations shall be provided by PFPC Inc.,
("PFPC"), pricing agent for the Acquiring Fund and the Acquired Fund.
1.2 The Acquired Fund has provided the Acquiring Fund with a list of
the current securities holdings of the Acquired Fund as of the date of execution
of this Agreement. The Acquired Fund reserves the right to sell any of these
securities (except to the extent sales may be limited by representations made in
connection with issuance of the tax opinion provided for in paragraph 8.5
hereof) but will not, without the prior approval of the Acquiring Fund, acquire
any additional securities other than securities of the type in which the
Acquiring Fund is permitted to invest.
1.3 The Acquiring Fund and the Acquired Fund shall each bear its own
expenses in connection with the transactions contemplated by this Agreement.
1.4 On or as soon after the Closing Date as is conveniently practicable
(the "Liquidation Date"), the Acquired Fund will liquidate and distribute pro
rata to shareholders of record (the "Acquired Fund shareholders"), determined as
of the close of regular trading on the New York Stock Exchange on the Closing
Date, the Acquiring Fund Shares received by the Acquired Fund pursuant to
Paragraph 1.1 hereof. Such liquidation and distribution will be accomplished by
the transfer of the Acquiring Fund Shares then credited to the account of the
Acquired Fund on the books of the Acquiring Fund, to open accounts on the share
records of the Acquiring Fund in the names of the Acquired Fund shareholders and
representing the respective pro rata number of Acquiring Fund Shares due such
shareholders. The Acquiring Fund will not issue certificates representing
Acquiring Fund Shares in connection with such exchange.
1.5 Any transfer taxes payable upon issuance of Acquiring Fund Shares
in a name other than the registered holder of the Acquired Fund Shares on the
books of the Acquired 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.
1.6 The existence of the Acquired Fund shall be terminated as promptly
as practicable following the Liquidation Date.
1.7 Any reporting responsibility of the Acquired Fund, including, but
not limited to, the responsibility for filing of regulatory reports, tax
returns, or other documents with the Securities and Exchange Commission (the
"Commission"), any state securities commissions, and any federal, state or local
tax authorities or any other relevant regulatory authority, is and shall remain
the responsibility of the Acquired Fund.
2. VALUATION
2.1 The net asset values of the Acquiring Fund Shares and the net
values of the assets and liabilities of the Acquired Fund to be transferred
shall, in each case, be determined as of the close of regular trading on the New
York Stock Exchange (normally 4:00 p.m. Eastern time) on the Closing Date. The
net asset values of the Acquiring Fund Shares shall be computed by PFPC in the
manner set forth in the Acquiring Fund's Declaration of Trust as amended and
restated (the "Declaration"), or By-Laws and the Acquiring Fund's then-current
prospectus and statement of additional information and shall be computed in each
case to not fewer than four decimal places. The net values of the assets of the
Acquired Fund to be transferred shall be computed by PFPC by calculating the
value of the assets transferred by the Acquired Fund and by subtracting
therefrom the amount of the liabilities assigned and transferred to and assumed
by the Acquiring Fund on the Closing Date, said assets and liabilities to be
valued in the manner set forth in the Acquired Fund's then current prospectus
and statement of additional information and shall be computed in each case to
not fewer than four decimal places.
2.2 The number of Acquiring Fund Shares to be issued (including
fractional shares, if any) in exchange for the Acquired Fund's assets shall be
determined by dividing the value of the Acquired Fund's assets less the
liabilities assumed by the Acquiring Fund, by the Acquiring Fund's net asset
value per share, all as determined in accordance with Paragraph 2.1 hereof.
2.3 All computations of value shall be made by PFPC in accordance with
its regular practice as pricing agent for the Funds.
3. CLOSING AND CLOSING DATE
3.1 The Closing Date shall be April 26, 2002 or such other date on or
before December 31, 2002 as the parties may agree. The Closing shall be held as
of 5:00 p.m. at the offices of the Funds, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
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parties may agree.
3.2 Portfolio securities that are not held in book-entry form in the
name of Boston Safe Deposit & Trust Co. (the "Custodian") as record holder for
the Acquired Fund shall be presented by the Acquired Fund to the Custodian for
examination no later than three business days preceding the Closing Date.
Portfolio securities which are not held in book-entry form shall be delivered by
the Acquired Fund to the Custodian for the account of the Acquiring Fund on the
Closing Date, duly endorsed in proper form for transfer, in such condition as to
constitute good delivery thereof in accordance with the custom of brokers, and
shall be accompanied by all necessary federal and state stock transfer stamps or
a check for the appropriate purchase price thereof. Portfolio securities held of
record by the Custodian in book-entry form on behalf of the Acquired Fund shall
be delivered to the Acquiring Fund by the Custodian by recording the transfer of
beneficial ownership thereof on its records. The cash delivered shall be in the
form of currency or by the Custodian crediting the Acquiring Fund's account
maintained with the Custodian with immediately available funds.
3.3 In the event that on the Closing Date (a) the New York Stock
Exchange shall be closed to trading or trading thereon shall be restricted or
(b) trading or the reporting of trading on said Exchange or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of the
Acquiring Fund or the Acquired Fund is impracticable, the Closing Date shall be
postponed until the first business day after the day when trading shall have
been fully resumed and reporting shall have been restored; provided that if
trading shall not be fully resumed and reporting restored on or before December
31, 2002, this Agreement may be terminated by the Acquiring Fund or by the
Acquired Fund upon the giving of written notice to the other party.
3.4 The Acquired Fund shall deliver at the Closing a list of the names,
addresses, federal taxpayer identification numbers and backup withholding and
nonresident alien withholding status of the Acquired Fund shareholders and the
number of outstanding shares of beneficial interest of the Acquired Fund owned
by each such shareholder, all as of the close of business on the Closing Date,
certified by its Treasurer, Secretary or other authorized officer (the
"Shareholder List"). The Acquiring Fund shall issue and deliver to the Acquired
Fund a confirmation evidencing the Acquiring Fund Shares to be credited on the
Closing Date, or provide evidence satisfactory to the Acquired Fund that such
Acquiring Fund Shares have been credited to the Acquired 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, stock certificates, receipts or
other documents as such other party or its counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Trust on behalf of the Acquired Fund represents, warrants and
covenants to the Acquiring Fund as follows:
(a) The Trust is a 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 out the
Agreement. Neither the Trust nor the Acquired Fund is required to qualify to do
business in any jurisdiction in which it is not so qualified or where failure to
qualify would subject it to any material liability or disability. The Trust has
all necessary federal, state and local authorizations to own all of its
properties and assets and to carry on its business as now being conducted;
(b) The Trust is a registered investment company classified as a
management company and its registration with the Commission as an investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
is in full force and effect. The Acquired Fund is a diversified series of the
Trust;
(c) The Trust and the Acquired Fund are not, and the execution,
delivery and performance of their obligations under this Agreement will not
result, in violation of any provision of the Trust's Declaration of Trust, as
amended, or By-Laws or of any agreement, indenture, instrument, contract, lease
or other undertaking to which either the Trust or the Acquired Fund is a party
or by which it is bound;
(d) Except as otherwise disclosed in writing and accepted by the
Acquiring Fund, no material litigation or administrative proceeding or
investigation of or before any court or governmental body is currently pending
or threatened against the Trust or the Acquired Fund or any of the Acquired
Fund's properties or assets. The Trust knows of no facts which might form the
basis for the institution of such proceedings, and neither the Trust nor the
Acquired 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 the Acquired Fund's business or its ability to consummate the
transactions herein contemplated;
(e) Neither the Trust nor the Acquired Fund has any material
contract or other commitments (other than this Agreement or agreements for the
purchase of securities entered into in the ordinary course of business and
consistent with its obligations under this Agreement) which will not be
terminated without liability to the Trust or the Acquired Fund at or prior to
the Closing Date;
(f) The audited statement of assets and liabilities, including the
schedule of investments, of the Acquired Fund as of December 31, 2001 and the
related statement of operations (copies of which have been furnished to the
Acquiring Fund) present fairly in all material respects the financial condition
of the Acquired Fund as of December 31, 2001 and the results of its operations
for the period then ended in accordance with generally accepted accounting
principles consistently applied, and there were no known actual or contingent
liabilities of the Acquired Fund as of the respective dates thereof not
disclosed therein;
(g) Since December 31, 2001, there has not been any material
adverse change in the Acquired Fund's financial condition, assets, liabilities,
or business other than changes occurring in the ordinary course of business, or
any incurrence by the Acquired Fund of indebtedness maturing more than one year
from the date such indebtedness was incurred, except as otherwise disclosed to
and accepted by the Acquiring Fund;
(h) At the date hereof and by the Closing Date, all federal, state
and other tax returns and reports, including information returns and payee
statements, of the Acquired Fund required by law to have been filed or furnished
by such dates shall have been filed or furnished, and all federal, state and
other taxes, interest and penalties shall have been paid so far as due, or
provision shall have been made for the payment thereof, and to the best of the
Acquired Fund's knowledge no such return is currently under audit and no
assessment has been asserted with respect to such returns or reports;
(i) The Acquired Fund has qualified as a regulated investment
company for each taxable year of its operation and the Acquired Fund will
qualify as such as of the Closing Date with respect to its taxable year ending
on the Closing Date;
(j) The authorized capital of the Trust consists of an unlimited
number of shares of beneficial interest, with a par value of $0.001. All issued
and outstanding shares of beneficial interest of the Acquired Fund are, and at
the Closing Date will be, duly and validly issued and outstanding, fully paid
and nonassessable by the trust. All of the issued and outstanding shares of
beneficial interest of the Acquired Fund will, at the time of Closing, be held
by the persons and in the amounts set forth in the Shareholder List submitted to
the Acquiring Fund pursuant to Paragraph 3.4 hereof. The Acquired Fund does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any of its shares of beneficial interest, nor is there outstanding any
security convertible into any of its shares of beneficial interest;
(k) At the Closing Date, the Trust on behalf of the Acquired Fund
will have good and marketable title to the assets to be transferred to the
Acquiring Fund pursuant to Paragraph 1.1 hereof, and full right, power and
authority to sell, assign, transfer and deliver such assets hereunder, and upon
delivery and payment for such 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
Securities Act of 1933, as amended (the "1933 Act");
(l) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the Trust on behalf
of the Acquired Fund, and this Agreement constitutes a valid and binding
obligation of the Acquired Fund enforceable in accordance with its terms;
(m) The information to be furnished by the Acquired Fund to the
Acquiring Fund for use in applications for orders, registration statements,
proxy materials and other documents which may be necessary in connection with
the transactions contemplated hereby shall be accurate and complete and shall
comply in all material respects with federal securities and other laws and
regulations thereunder applicable thereto;
(n) The information statement of the Acquired Fund (the
"Information Statement") to be included in the Registration Statement referred
to in Paragraph 4.2(c) hereof (other than written information furnished by the
Acquiring Fund for inclusion therein, as covered by the Acquiring Fund's
warranty in Paragraph 4.2(m) hereof), on the effective date of the Registration
Statement and on the Closing Date, shall 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 misleading;
(o) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Acquired Fund of
the transactions contemplated by this Agreement;
(p) All of the issued and outstanding shares of beneficial interest
of the Trust on behalf of the Acquired Fund have been offered for sale and sold
in conformity with all applicable federal and state securities laws;
(q) The prospectus of the Acquired Fund, dated May 1, 2001 (the
"Acquired Fund Prospectuses"), furnished to the Acquiring Fund, does 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 in which they were made, not misleading;
(r) The Acquired Fund Tax Representation Certificate to be
delivered by the Acquired Fund to the Acquiring Fund at Closing pursuant to
Section 7.5 (the "Acquired Fund Tax Representation Certificate") will not on the
Closing Date contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading.
4.2 The Trust on behalf of the Acquiring Fund represents, warrants and
covenants to the Acquired Fund as follows:
(a) The Trust is a 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 out the
Agreement. Neither the Trust nor the Acquiring Fund is required to qualify to do
business in any jurisdiction in which it is not so qualified or where failure to
qualify would subject it to any material liability or disability. The Trust has
all necessary federal, state and local authorizations to own all of its
properties and assets and to carry on its business as now being conducted;
(b) The Trust is a registered investment company classified as a
management company and its registration with the Commission as an investment
company under the 1940 Act is in full force and effect. The Acquiring Fund is a
diversified series of the Trust;
(c) The prospectus (the "Acquiring Fund Prospectus") and statement
of additional information of the Acquiring Fund, each dated May 1, 2001, and any
amendments or supplements thereto on or prior to the Closing Date, and the
Registration Statement on Form N-14 filed in connection with this Agreement (the
"Registration Statement") (other than written information furnished by the
Acquired Fund for inclusion therein, as covered by the Acquired Fund's warranty
in Paragraph 4.1(n) hereof) will 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, the Acquiring Fund Prospectus 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 misleading and,
other than written information furnished by the Acquired Fund for inclusion
therein, as covered by the Acquired Fund's warranty in Paragraph 4.1(n) hereof,
the Registration Statement shall not, on its effective date and on Closing Date,
contain any untrue statement of 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 misleading;
(d) At the Closing Date, the Trust on behalf of the Acquiring Fund
will have good and marketable title to the assets of the Acquiring Fund;
(e) The Trust and the Acquiring Fund are not, and the execution,
delivery and performance of their obligations under this Agreement will not
result in a violation of any provisions of the Trust's Declaration of Trust, as
amended, or By-Laws or of any agreement, indenture, instrument, contract, lease
or other undertaking to which the Trust or the Acquiring Fund is a party or by
which the Trust or the Acquiring Fund is bound;
(f) Except as otherwise disclosed in writing and accepted by the
Acquired Fund, no material litigation or administrative proceeding or
investigation of or before any court or governmental body is currently pending
or threatened against the Trust or the Acquiring Fund or any of the Acquiring
Fund's properties or assets. The Trust knows of no facts which might form the
basis for the institution of such proceedings, and neither the Trust nor the
Acquiring 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 the Acquiring Fund's business or its ability to consummate the
transactions herein contemplated;
(g) The audited statement of assets and liabilities, including the
schedule of investments, of the Acquiring Fund as of December 31, 2001 and the
related statement of operations (copies of which have been furnished to the
Acquired Fund) present fairly in all material respects the financial condition
of the Acquiring Fund as of December 31, 2001 and the results of its operations
for the period then ended in accordance with generally accepted accounting
principles consistently applied, and there were no known actual or contingent
liabilities of the Acquiring Fund as of the respective dates thereof not
disclosed therein;
(h) Since December 31, 2001, 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 Trust on behalf of the Acquiring Fund of indebtedness
maturing more than one year from the date such indebtedness was incurred, except
as disclosed to and accepted by the Acquired Fund;
(i) The Acquiring Fund has qualified as a regulated investment
company for each taxable year of its operation and the Acquiring Fund will
qualify as such as of the Closing Date;
(j) The authorized capital of the Trust consists of an unlimited
number of shares of beneficial interest, with a par value per share of $0.001.
All issued and outstanding shares of beneficial interest of the Acquiring Fund
are, and at the Closing Date will be, duly and validly issued and outstanding,
fully paid and nonassessable by the Trust. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase
any of its shares of beneficial interest, nor is there outstanding any security
convertible into any of its shares of beneficial interest;
(k) The execution, delivery and performance of this Agreement has
been duly authorized by all necessary action on the part of the Trust on behalf
of the Acquiring Fund, and this Agreement constitutes a valid and binding
obligation of the Acquiring Fund enforceable in accordance with its terms;
(l) The Acquiring Fund Shares to be issued and delivered to the
Acquired Fund pursuant to the terms of this Agreement, when so issued and
delivered, will be duly and validly issued shares of beneficial interest of the
Acquiring Fund and will be fully paid and nonassessable by the Trust;
(m) The information to be furnished by the Acquiring Fund for use
in applications for orders, registration statements, proxy materials and other
documents which may be necessary in connection with the transactions
contemplated hereby shall be accurate and complete and shall comply in all
material respects with federal securities and other laws and regulations
applicable thereto;
(n) 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 by the Agreement, except for the registration of
the Acquiring Fund Shares under the 1933 Act and the 1940 Act; and
(o) The Acquiring Fund Tax Representation Certificate to be
delivered by the Acquiring Fund to the Acquired Fund at Closing pursuant to
Section 6.3 (the "Acquiring Fund Tax Representation Certificate") will not on
the Closing Date contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading.
5. COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND
5.1 Except as expressly contemplated herein to the contrary, the
Trust on behalf of the Acquired Fund and the Trust on behalf of the Acquiring
Fund, will operate their respective businesses in the ordinary course between
the date hereof and the Closing Date, it being understood that such ordinary
course of business will include customary dividends and distributions and any
other distributions necessary or desirable to avoid federal income or excise
taxes.
5.2 The Acquired Fund covenants that the Acquiring Fund Shares to be
issued hereunder are not being acquired by the Acquired Fund for the purpose of
making any distribution thereof other than in accordance with the terms of this
Agreement.
5.3 The Acquired Fund will provide such information within its
possession or reasonably obtainable as the Trust on behalf of the Acquiring Fund
requests concerning the beneficial ownership of the Acquired Fund's shares of
beneficial interest.
5.4 Subject to the provisions of this Agreement, the Acquiring Fund and
the Acquired Fund each shall take, or cause to be taken, all action, and do or
cause to be done, all things reasonably necessary, proper or advisable to
consummate the transactions contemplated by this Agreement.
5.5 The Acquired Fund shall furnish to the Trust on behalf of the
Acquiring Fund on the Closing Date the Statement of Assets and Liabilities of
the Acquired Fund as of the Closing Date, which statement shall be prepared in
accordance with generally accepted accounting principles consistently applied
and shall be certified by the Acquired Fund's Treasurer or Assistant Treasurer.
As promptly as practicable but in any case within 60 days after the Closing
Date, the Acquired Fund shall furnish to the Acquiring Fund, in such form as is
reasonably satisfactory to the Trust, a statement of the earnings and profits of
the Acquired Fund for federal income tax purposes and of any capital loss
carryovers and other items that will be carried over to the Acquiring Fund as a
result of Section 381 of the Code, and which statement will be certified by the
President of the Acquired Fund.
5.6 The Trust on behalf of the Acquiring Fund will prepare and file
with the Commission the Registration Statement in compliance with the 1933 Act
and the 1940 Act in connection with the issuance of the Acquiring Fund Shares as
contemplated herein.
5.7 The Acquired Fund will prepare an Information Statement, to be
included in the Registration Statement in compliance with the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the 1940 Act
and the rules and regulations thereunder (collectively, the "Acts").
5.8 Neither the Acquired Fund nor the Acquiring Fund shall take any
action that is inconsistent with the representations set forth in, with respect
to the Acquired Fund, the Acquired Fund Tax Representation Certificate, and with
respect to the Acquiring Fund, the Acquiring Fund Tax Representation
Certificate, to the extent such action would prevent the reorganization from
qualifying as a "reorganization" under Section 368(a) of the Code.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired Fund to complete the transactions
provided for herein shall be, at its election, subject 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 delivered to
the Acquired Fund a certificate executed in its name by the Trust's President or
Vice President and its Treasurer or Assistant Treasurer, in form and substance
satisfactory to the Acquired Fund and dated as of the Closing Date, to the
effect that the representations and warranties of the Trust on behalf of the
Acquiring Fund made in this Agreement are true and correct at and as of the
Closing Date, except as they may be affected by the transactions contemplated by
this Agreement, and as to such other matters as the Acquired Fund shall
reasonably request; and
6.3 The Acquiring Fund shall have delivered to the Acquired Fund an
Acquiring Fund Tax Representation Certificate, satisfactory to the Acquired
Fund, substantially in the form attached to this Agreement as Annex A concerning
certain tax-related matters with respect to the Acquiring Fund.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRUST ON BEHALF OF THE
ACQUIRING FUND
The obligations of the Trust on behalf of the Acquiring Fund to
complete the transactions provided for herein shall be, at its election, subject
to the performance by the Trust on behalf of the Acquired Fund of all the
obligations to be performed by it hereunder on or before the Closing Date and,
in addition thereto, the following conditions:
7.1 All representations and warranties of the Trust on behalf of the
Acquired Fund contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Closing Date with the
same force and effect as if made on and as of the Closing Date;
7.2 The Trust on behalf of the Acquired Fund shall have delivered to
the Acquiring Fund the Statement of Assets and Liabilities of the Acquired Fund,
together with a list of its portfolio securities showing the federal income tax
bases and holding periods of such securities, as of the Closing Date, certified
by the Treasurer or Assistant Treasurer of the Acquired Fund;
7.3 The Acquired Fund shall have delivered to the Trust on behalf of
the Acquiring Fund on the Closing Date a certificate executed in the name of the
Acquired Fund by a President or Vice President and a Treasurer or Assistant
Treasurer of the Acquired Fund, in form and substance satisfactory to the
Acquiring Fund and dated as of the Closing Date, to the effect that the
representations and warranties of the Acquired Fund in this Agreement are true
and correct at and as of the Closing Date, except as they may be affected by the
transactions contemplated by this Agreement, and as to such other matters as the
Trust on behalf of the Acquiring Fund shall reasonably request;
7.4 At or prior to the Closing Date, the Acquired Fund's investment
adviser, or an affiliate thereof, shall have made all payments, or applied all
credits, to the Acquired Fund required by any applicable contractual expense
limitation; and
7.5 The Acquired Fund shall have delivered to the Acquiring Fund an
Acquired Fund Tax Representation Certificate, satisfactory to the Acquiring
Fund, substantially in the form attached to this Agreement as Annex B concerning
certain tax-related matters with respect to the Acquired Fund.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND AND
THE TRUST ON BEHALF OF THE ACQUIRING FUND
The obligations hereunder of the Trust on behalf of the Acquiring Fund
and of the Trust on behalf of the Acquired Fund are each subject to the further
conditions that on or before the Closing Date:
8.1 On the Closing Date no action, suit or other proceeding shall be
pending before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain changes or other relief in connection with, this
Agreement or the transactions contemplated herein;
8.2 All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities (including those of
the Commission and their "no-action" positions) deemed necessary by the Acquired
Fund or the Trust to permit consummation, in all material respects, of the
transactions contemplated hereby shall have been obtained, except where failure
to obtain any such consent, order or permit would not involve a risk of a
material adverse effect on the assets or properties of the Acquiring Fund or the
Acquired Fund, provided that either party hereto may waive any such conditions
for itself;
8.3 The Registration Statement shall have become effective under the
1933 Act and the 1940 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 or the 1940 Act;
8.4 The Acquired Fund shall have distributed to its shareholders, in a
distribution or distributions qualifying for the deduction for dividends paid
under Section 561 of the Code, all of its investment company taxable income (as
defined in Section 852(b)(2) of the Code determined without regard to Section
852(b)(2)(D) of the Code) for its taxable year ending on the Closing Date, all
of the excess of (i) its interest income excludable from gross income under
Section 103(a) of the Code over (ii) its deductions disallowed under Sections
265 and 171(a)(2) of the Code for its taxable year ending on the Closing Date,
and all of its net capital gain (as such term is used in Sections 852(b)(3)(A)
and (C) of the Code), after reduction by any available capital loss
carryforward, for its taxable year ending on the Closing Date; and
8.5 The parties shall have received an opinion of ▇▇▇▇ and ▇▇▇▇ LLP,
satisfactory to the Acquired Fund and the Trust on behalf of the Acquiring Fund,
substantially to the effect that for federal income tax purposes the acquisition
by the Acquiring Fund of all of the assets of the Acquired Fund solely in
exchange for the issuance of Acquiring Fund Shares to the Acquired Fund and the
assumption of all of the Acquired Fund Liabilities by the Acquiring Fund,
followed by the distribution by the Acquired Fund, in liquidation of the
Acquired Fund, of Acquiring Fund Shares to the shareholders of the Acquired Fund
in exchange for their shares of beneficial interest of the Acquired Fund and the
termination of the Acquired Fund, will constitute a "reorganization" within the
meaning of Section 368(a) of the Code.
Notwithstanding anything herein to the contrary, neither the Acquired
Fund nor the Trust may waive the conditions set forth in this Paragraph 8.5.
9. BROKERAGE FEES AND EXPENSES
9.1 The Trust on behalf of the Acquiring Fund and the Trust on behalf
of the Acquired Fund each represent and warrant to the other that there are no
brokers or finders entitled to receive any payments in connection with the
transactions provided for herein.
9.2 The Acquiring Fund and the Acquired Fund shall each be liable
solely for its own expenses incurred in connection with entering into and
carrying out the provisions of this Agreement whether or not the transactions
contemplated hereby are consummated.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Trust on behalf of the Acquiring Fund and the Trust on behalf
of the Acquired Fund agree that neither party has made any representation,
warranty or covenant not set forth herein or referred to in Paragraph 4 hereof
and that this Agreement constitutes the entire agreement between the parties.
10.2 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.
11. TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of the
Trust on behalf of the Acquiring Fund and the Acquired Fund. In addition, either
party may at its option terminate this Agreement at or prior to the Closing
Date:
(a) because of a material breach by the other of any
representation, warranty, covenant or agreement contained herein to be performed
at or prior to the Closing Date;
(b) because of a condition herein expressed to be precedent to the
obligations of the terminating party which has not been met and which reasonably
appears will not or cannot be met;
(c) by resolution of the Trust's Board of Trustees if circumstances
should develop that, in the good faith opinion of such Board, make proceeding
with the Agreement not in the best interests of the Acquiring Fund's
shareholders; or
(d) by resolution of the Acquired Fund's Board of Trustees if
circumstances should develop that, in the good faith opinion of such Board, make
proceeding with the Agreement not in the best interests of the Acquired Fund's
shareholders.
11.2 In the event of any such termination, there shall be no liability
for damages on the part of the Trust, the Acquiring Fund, or the Acquired Fund,
or the Trustees or officers of the Trust or the Acquired Fund, but each party
shall bear the expenses incurred by it incidental to the preparation and
carrying out of this Agreement.
12. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon by the authorized officers of the Trust and the
Acquired Fund. No such amendment may have the effect of changing the provisions
regarding the method for determining the number of Acquiring Fund Shares to be
received by the Acquired Fund shareholders under this Agreement to the detriment
of such shareholders without their further approval; provided that nothing
contained in this Article twelve shall be construed to prohibit the parties from
amending this Agreement to change the Closing Date.
13. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the Acquiring Fund or to the
Acquired Fund, each at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, and, in either case, with copies
to ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT
14.1 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.
14.2 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
14.3 This Agreement shall be governed by and construed in accordance
with the laws of The Commonwealth of Massachusetts.
14.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the prior 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.
14.5 All persons dealing with the Trust on behalf of the Acquiring Fund
or Trust on behalf of the Acquired Fund must look solely to the property of the
Acquiring Fund or the Acquired Fund, respectively, for the enforcement of any
claims against the Acquiring Fund or the Acquired Fund as the Trustees,
officers, agents and shareholders of the Trust on behalf of either Fund assume
no personal liability for obligations entered into on behalf of the Trust on
behalf of the Acquiring Fund or Trust on behalf of the Acquired Fund,
respectively. None of the other series of the Trust shall be responsible for any
obligations assumed by on or behalf of the either Fund under this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first set forth above by its President
or Vice President and has caused its corporate seal to be affixed hereto.
KOBREN INSIGHT FUNDS on behalf of
KOBREN GROWTH FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Vice President
KOBREN INSIGHT FUNDS on behalf of
KOBREN MODERATE GROWTH FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
President
--------------------------
Annex A
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TAX REPRESENTATION CERTIFICATE OF
KOBREN GROWTH FUND
This certificate is being delivered in connection with the transaction to
be effected pursuant to the Agreement and Plan of Reorganization made as of
April 18, 2002 between Kobren Growth Fund ("Acquiring Fund") and Kobren Moderate
Growth Fund ("Acquired Fund"), each a series of Kobren Insight Funds (the
"Agreement"). Pursuant to the Agreement, Acquiring Fund will acquire all of the
assets of Acquired Fund in exchange solely for (i) the assumption by Acquiring
Fund of certain liabilities of Acquired Fund (the "Acquired Fund Liabilities")
and (ii) the issuance of shares of beneficial interest of Acquiring Fund (the
"Acquiring Fund Shares") to Acquired Fund, followed by the distribution by
Acquired Fund, in liquidation of Acquired Fund, of the Acquiring Fund Shares to
the shareholders of Acquired Fund and the termination of Acquired Fund (the
foregoing together constituting the "transaction").
The undersigned officer of Acquiring Fund, after consulting with its
counsel and auditors regarding the meaning of and factual support for the
following representations, on behalf of Acquiring Fund, hereby certifies and
represents that the following statements are true, complete and correct and will
be true, complete and correct on the date of the transaction and thereafter as
relevant. Unless otherwise indicated, all capitalized terms used but not defined
herein shall have the meaning ascribed to them in the Agreement.
1. Acquiring Fund is a series of Kobren Insight Funds, a business trust
established under the laws of the Commonwealth of Massachusetts.
2. Neither Acquiring Fund nor any person treated as related to Acquiring
Fund under Treasury Regulation Section 1.368-1(e)(3) or by virtue of being a
partnership of which Acquiring Fund or a related person is a partner (a "Related
Person") has any plan or intention to redeem or otherwise reacquire any of the
Acquiring Fund Shares received by shareholders of Acquired Fund in the
transaction except in the ordinary course of Acquiring Fund's business in
connection with its legal obligation under Section 22(e) of the Investment
Company Act of 1940, as amended, as a registered open-end investment company to
redeem its own shares (which obligation is not in connection with, modified in
connection with, or in any way related to the transaction).
3. After the transaction, Acquiring Fund will continue the historic
business of Acquired Fund or will use all or a significant portion of the
historic assets acquired from Acquired Fund in the ordinary course of a
business. For this purpose, Acquiring Fund shall be treated as conducting the
business and holding the assets of certain related entities, as described in
Treasury Regulation Section 1.368-1(d)(4).
4. Acquiring Fund has no plan or intention to sell or otherwise dispose of
any assets of Acquired Fund acquired in the transaction, except for dispositions
made in the ordinary course of its business, and except for transfers of assets
to certain related entities, as described in Section 368(a)(2)(C) of the
Internal Revenue Code of 1986, as amended (the "Code") or Treasury Regulation
Section 1.368-2(k)(1).
5. Each of Acquiring Fund and Acquired Fund will pay its own expenses
related to the transaction. The shareholders of Acquiring Fund and Acquired Fund
will bear their respective expenses, if any, in connection with the transaction.
6. There is no indebtedness between Acquiring Fund and Acquired Fund.
7. Acquiring Fund has elected to be treated as a regulated investment
company under Subchapter M of the Code, has qualified as a regulated investment
company for each taxable year since inception, qualifies as such as of the date
of the transaction, and intends to qualify as such after the transaction.
8. Acquiring Fund meets the requirements of a regulated investment company
as defined in Section 368(a)(2)(F) of the Code.
9. Acquiring Fund is not under the jurisdiction of a court in a Title 11
or similar case within the meaning of Section 368(a)(3)(A) of the Code.
10. Acquiring Fund does not now and has never owned, directly or
indirectly, any shares of Acquired Fund.
11. Acquiring Fund will not pay cash in lieu of fractional shares in
connection with the transaction.
12. As of the date of the transaction, the fair market value of the
Acquiring Fund Shares issued to Acquired Fund in exchange for the assets of
Acquired Fund will be approximately equal to the fair market value of the assets
of Acquired Fund received by Acquiring Fund, minus the Acquired Fund Liabilities
assumed by Acquiring Fund. Acquiring Fund will not furnish any consideration in
connection with the acquisition of Acquired Fund's assets other than the
assumption of these Acquired Fund Liabilities and the issuance of these
Acquiring Fund Shares.
13. Acquired Fund shareholders will not be in control (within the meaning
of Sections 368(a)(2)(H)(i) and 304(c) of the Code, which provide that control
means the ownership of shares possessing at least 50% of the total combined
voting power of all classes of shares that are entitled to vote or at least 50%
of the total value of shares of all classes) of Acquiring Fund after the
transaction.
14. The principal business purposes of the transaction are to combine the
assets of Acquiring Fund and Acquired Fund in order to capitalize on potential
economies of scale in expenses, including the costs of accounting, legal,
transfer agency, insurance, custodial, and administrative services, and to
increase diversification.
15. No Acquired Fund shareholder is acting as agent for Acquiring Fund in
connection with the transaction or approval thereof. Acquiring Fund will not
reimburse any Acquired Fund shareholder for Acquired Fund shares such
shareholder may have purchased or for other obligations such shareholder may
have incurred.
The undersigned officer of Acquiring Fund is authorized to make all of the
representations set forth herein, and the undersigned is authorized to execute
this certificate on behalf of Acquiring Fund. The undersigned recognizes that
▇▇▇▇ and ▇▇▇▇ LLP will rely upon the foregoing representations in evaluating the
United States federal income tax consequences of the transaction. If, prior to
the date of the transaction, any of the representations set forth herein cease
to be accurate in any material respect, the undersigned agrees to deliver to
▇▇▇▇ and ▇▇▇▇ LLP immediately a written notice to that effect.
KOBREN GROWTH FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Vice President
-------------------------
Dated: April 26, 2002
Annex B
TAX REPRESENTATION CERTIFICATE OF
KOBREN MODERATE GROWTH FUND
This certificate is being delivered in connection with the transaction to
be effective pursuant to the Agreement and Plan of Reorganization made as of
April 18, 2002 between Kobren Growth Fund ("Acquiring Fund") and Kobren Moderate
Growth Fund ("Acquired Fund"), each a series of Kobren Insight Funds (the
"Agreement"). Pursuant to the Agreement, Acquiring Fund will acquire all of the
assets of Acquired Fund in exchange solely for (i) the assumption by Acquiring
Fund of certain liabilities of Acquired Fund (the "Acquired Fund Liabilities")
and (ii) the issuance of shares of beneficial interest of Acquiring Fund (the
"Acquiring Fund Shares") to Acquired Fund, followed by the distribution by
Acquired Fund, in liquidation of Acquired Fund, of the Acquiring Fund Shares to
the shareholders of Acquired Fund and the termination of Acquired Fund (the
foregoing together constituting the "transaction").
The undersigned officer of Acquired Fund, after consulting with its
counsel and auditors regarding the meaning of and factual support for the
following representations, on behalf of Acquired Fund, hereby certifies and
represents that the following statements are true, complete and correct and will
be true, complete and correct on the date of the transaction and thereafter as
relevant. Unless otherwise indicated, all capitalized terms used but not defined
herein shall have the meaning ascribed to them in the Agreement.
1. Acquired Fund is a series of Kobren Insight Funds, a business trust
established under the laws of the Commonwealth of Massachusetts.
2. As of the date of the transaction, the fair market value of the
Acquiring Fund Shares received by each shareholder that holds shares of Acquired
Fund (the "Acquired Fund Shares") will be approximately equal to the fair market
value of the Acquired Fund Shares surrendered by such shareholder, and the
aggregate consideration received by Acquired Fund shareholders in exchange for
their Acquired Fund Shares will be approximately equal to the fair market value
of all of the outstanding Acquired Fund Shares immediately prior to the
transaction. No property other than Acquiring Fund Shares will be distributed to
shareholders of Acquired Fund in exchange for their Acquired Fund Shares, nor
will any such shareholder receive cash or other property as part of the
transaction.
3. There is no plan or intention on the part of any shareholder of
Acquired Fund that owns beneficially 5% or more of the Acquired Fund Shares and,
to the best knowledge of management of Acquired Fund, there is no plan or
intention on the part of the remaining shareholders of Acquired Fund, in
connection with the transaction, to engage in any transaction with Acquired
Fund, Acquiring Fund, or any person treated as related to Acquired Fund or
Acquiring Fund under Treasury Regulation Section 1.368-1(e)(3) or by virtue of
being a partnership of which Acquired Fund, Acquiring Fund, or a related person
is a partner involving the sale, redemption, exchange, transfer, pledge, or
other disposition resulting in a direct or indirect transfer of the risks of
ownership (a "Sale") of any of the Acquired Fund Shares or any of the Acquiring
Fund Shares to be received in the transaction that, considering all Sales, would
reduce the aggregate ownership of the Acquiring Fund Shares by former Acquired
Fund shareholders to a number of shares having a value, as of the date of the
transaction, of less than fifty percent (50%) of the value of all of the
formerly outstanding Acquired Fund Shares as of the same date. All Sales
involving shares of Acquired Fund and Acquiring Fund held by Acquired Fund
shareholders that have occurred or will occur in connection with the transaction
are taken into account for purposes of this representation. No such Sale that is
in connection with the transaction has, to the best knowledge of management of
Acquired Fund, occurred on or prior to the date of the transaction.
4. Acquired Fund assets transferred to Acquiring Fund will comprise at
least ninety percent (90%) of the fair market value of the net assets and at
least seventy percent (70%) of the fair market value of the gross assets held by
Acquired Fund immediately prior to the transaction. For purposes of this
representation, amounts used by Acquired Fund to pay expenses of the transaction
and all redemptions and distributions (except for redemptions in the ordinary
course of business upon demand of a shareholder that Acquired Fund is required
to make as an open-end investment company pursuant to Section 22(e) of the
Investment Company Act of 1940, as amended, and regular, normal dividends) made
by Acquired Fund immediately preceding the transaction are taken into account as
assets of Acquired Fund held immediately prior to the transaction.
5. As of the date of the transaction, the fair market value of the
Acquiring Fund Shares issued to Acquired Fund in exchange for the assets of
Acquired Fund will be approximately equal to the fair market value of the assets
of Acquired Fund received by Acquiring Fund, minus the Acquired Fund Liabilities
assumed by Acquiring Fund. Acquiring Fund will not furnish any consideration in
connection with the acquisition of Acquired Fund's assets other than the
assumption of these Acquired Fund Liabilities and the issuance of these
Acquiring Fund Shares.
6. The Acquired Fund Liabilities assumed by Acquiring Fund plus the
liabilities, if any, to which the transferred assets are subject were incurred
by Acquired Fund in the ordinary course of its business.
7. The fair market value of the Acquired Fund assets transferred to
Acquiring Fund will equal or exceed the sum of the Acquired Fund Liabilities
assumed by Acquiring Fund plus the amount of liabilities, if any, to which the
transferred assets are subject.
8. Substantially all of the Acquired Fund assets transferred to
Acquiring Fund will be Acquired Fund's historic business assets, i.e., assets
not acquired by Acquired Fund as part of or in contemplation of the transaction.
9. Acquired Fund will distribute to its shareholders the Acquiring Fund
Shares it receives, and its other properties, if any, pursuant to the
transaction and will be liquidated promptly thereafter. Each of Acquiring Fund
and Acquired Fund will pay its own expenses related to the transaction. The
shareholders of Acquiring Fund and Acquired Fund will bear their respective
expenses, if any, in connection with the transaction.
10. There is no indebtedness between Acquiring Fund and Acquired Fund.
11. Acquired Fund has elected to be treated as a regulated investment
company under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), has qualified as a regulated investment company for each taxable year
since inception, and qualifies as such for its taxable year ending on the
closing date of the transaction.
12. Acquired Fund meets the requirements of a regulated investment
company as defined in Section 368(a)(2)(F) of the Code.
13. Acquired Fund is not under the jurisdiction of a court in a Title
11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
14. Acquired Fund does not pay compensation to any
shareholder-employee.
15. Acquired Fund shareholders will not be in control (within the
meaning of Sections 368(a)(2)(H)(i) and 304(c) of the Code, which provide that
control means the ownership of shares possessing at least 50% of the total
combined voting power of all classes of shares that are entitled to vote or at
least 50% of the total value of shares of all classes) of Acquiring Fund after
the transaction.
16. Acquired Fund shareholders will not have dissenters' or appraisal
rights in the transaction.
17. The principal business purposes of the transaction are to combine
the assets of Acquiring Fund and Acquired Fund in order to capitalize on
potential economies of scale in expenses, including the costs of accounting,
legal, transfer agency, insurance, custodial, and administrative services, and
to increase diversification.
The undersigned officer of Acquired Fund is authorized to make all of
the representations set forth herein, and the undersigned is authorized to
execute this certificate on behalf of Acquired Fund. The undersigned recognizes
that ▇▇▇▇ and ▇▇▇▇ LLP will rely upon the foregoing representations in
evaluating the United States federal income tax consequences of the transaction.
If, prior to the date of the transaction, any of the representations set forth
herein cease to be accurate in any material respect, the undersigned agrees to
deliver to ▇▇▇▇ and ▇▇▇▇ LLP immediately a written notice to that effect.
KOBREN MODERATE GROWTH FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: Vice President
------------------
Dated: April 26, 2002
