AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement")
is made as of December 12, 2013 by and between
RS Investment Trust, a Massachusetts business trust (the
"Trust"), on behalf of RS Growth Fund (the "Acquiring Fund"),
and on behalf of RS Capital Appreciation Fund (the "Acquired
Fund"), and, solely for the purpose of paragraph 9.2, RS
Investment Management Co. LLC ("RS Investments"). The
capitalized terms used herein shall have the meanings ascribed
to them in this Agreement.
This Agreement is intended to be, and is adopted as,
a plan of reorganization and liquidation for purposes of
Section 368(a) of the United States Internal Revenue Code of
1986, as amended (the "Code"). The reorganization (the
"Reorganization") will consist of (i) the transfer of all of
the assets of the Acquired Fund to the Acquiring Fund in
exchange for Class A shares (the "Class A Acquiring Fund
Shares"), Class C shares (the "Class C Acquiring Fund Shares"),
Class K shares (the "Class K Acquiring Fund Shares") and Class
Y shares (the "Class Y Acquiring Fund Shares", and, together
with the Class A Acquiring Fund Shares, the Class C Acquiring
Fund Shares, the Class K Acquiring Fund Shares, and the Class
Y Acquiring Fund Shares, the "Acquiring Fund Shares") of
beneficial interest, no par value per share, of the Acquiring
Fund; (ii) the assumption by the Acquiring Fund of all of the
liabilities of the Acquired Fund; and (iii) the distribution,
after the closing date contemplated by Section 3.1 (the
"Closing Date"), of the Acquiring Fund shares, pro rata to
the shareholders of the corresponding class of shares of the
Acquired Fund, and the termination, dissolution and complete
liquidation of the Acquired Fund as provided herein, all upon
the terms and conditions hereinafter set forth in this
Agreement. Before the Closing Date, the Acquired Fund will
declare and pay to its shareholders a dividend or dividends
in an amount such that it will have distributed (i) the sum of
(a) its net investment income and (b) the excess of its net
short-term capital gains over net long-term capital losses,
and (ii) the excess of its net long-term capital gains over
its net short-term capital losses, all as described in
Section 6.6.
In consideration of the premises and 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 THE ACQUIRING FUND SHARES AND ASSUMPTION OF LIABILITIES
AND LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to the terms and conditions hereof and
on the basis of the representations and warranties contained
herein:
(a) The Acquired Fund will sell, assign, convey,
transfer and deliver to the Acquiring Fund, and the Acquiring
Fund will acquire, on the Closing Date, all of the properties
and assets, subject to liabilities, of the Acquired Fund as
set forth in Section 1.2.
(b) The Acquiring Fund shall, on the Closing
Date, (i) issue and deliver to the Acquired Fund (1) the
number of Class A Acquiring Fund Shares (including fractional
shares, if any) determined by dividing (A) the amount of the
assets of the Acquired Fund attributable to its Class A shares,
less the amount of the liabilities of the Acquired Fund
attributable to its Class A shares, computed in the manner
and as of the time and date set forth in Section 2.2, by
(B) the net asset value of one Class A Acquiring Fund Share,
computed in the manner and as of the time and date set forth
in Section 2.3, (2) the number of Class C Acquiring Fund Shares
(including fractional shares, if any) determined by dividing
(A) the amount of the assets of the Acquired Fund attributable
to its Class C shares, less the amount of the liabilities of the
Acquired Fund attributable to its Class C shares, computed in
the manner and as of the time and date set forth in Section 2.2,
by (B) the net asset value of one Class C Acquiring Fund Share,
computed in the manner and as of the time and date set forth in
Section 2.3, (3) the number of Class K Acquiring Fund Shares
(including fractional shares, if any) determined by dividing
(A) the amount of the assets of the Acquired Fund attributable
to its Class K shares, less the amount of the liabilities of
the Acquired Fund attributable to its Class K shares, computed
in the manner and as of the time and date set forth in Section
2.2, by (B) the net asset value of one Class K Acquiring Fund
Share, computed in the manner and as of the time and date set
forth in Section 2.3, and (4) the number of Class Y Acquiring
Fund Shares (including fractional shares, if any) determined
by dividing (A) the amount of the assets of the Acquired Fund
attributable to its Class Y shares, less the amount of the
liabilities of the Acquired Fund attributable to its Class Y
shares, computed in the manner and as of the time and date set
forth in Section 2.2, by (B) the net asset value of one Class
Y Acquiring Fund Share, computed in the manner and as of the
time and date set forth in Section 2.3, and (ii) assume all of
the Acquired Fund's liabilities and obligations of any kind
whatsoever, whether absolute, accrued, contingent, or otherwise,
in existence on the Closing Date. Such transactions shall take
place at the closing provided for in Section 3 (the "Closing").
(c) Upon consummation of the transactions
described in subsections (a) and (b) above, the Acquired
Fund in complete liquidation shall distribute to its
respective shareholders of record as of the Closing Date
the Acquiring Fund Shares received by it. Each Class A
shareholder of the Acquired Fund shall be entitled to
receive that number of Class A Acquiring Fund Shares equal
to the total of (i) the number of Class A shares of the
Acquired Fund held by such shareholder divided by the number
of Class A shares of the Acquired Fund outstanding on such
date multiplied by (ii) the total number of Class A Acquiring
Fund Shares received by the Acquired Fund. Each Class C
shareholder of the Acquired Fund shall be entitled to receive
that number of Class C Acquiring Fund Shares equal to the total
of (i) the number of Class C shares of the Acquired Fund held
by such shareholder divided by the number of Class C shares of
the Acquired Fund outstanding on such date multiplied by
(ii) the total number of Class C Acquiring Fund Shares received
by the Acquired Fund. Each Class K shareholder of the Acquired
Fund shall be entitled to receive that number of Class K
Acquiring Fund Shares equal to the total of (i) the number of
Class K shares of the Acquired Fund held by such shareholder
divided by the number of Class K shares of the Acquired Fund
outstanding on such date multiplied by (ii) the total number of
Class K Acquiring Fund Shares received by the Acquired Fund.
Each Class Y shareholder of the Acquired Fund shall be entitled
to receive that number of Class Y Acquiring Fund Shares equal to
the total of (i) the number of Class Y shares of the Acquired Fund
held by such shareholder divided by the number of Class Y shares
of the Acquired Fund outstanding on such date multiplied by
(ii) the total number of Class Y Acquiring Fund Shares received
by the Acquired Fund.
1.2. The assets of the Acquired Fund to be acquired
by the Acquiring Fund shall include, without limitation, all
cash, securities, commodities and futures interests, dividends
and interest receivable, receivables for shares sold and all
other properties and assets which are owned by the Acquired
Fund on the Closing Date.
1.3. As provided in Section 3.4, as soon after the
Closing Date as is conveniently practicable (the "Liquidation
Date"), the Acquired Fund will liquidate and distribute to its
shareholders of record the Acquiring Fund Shares received by
the Acquired Fund as contemplated by Section 1.1. 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 Acquired Fund shareholders and representing the
respective number of the Acquiring Fund Shares due to such
shareholders. The Acquiring Fund shall not be obligated to
issue certificates representing the Acquiring Fund Shares in
connection with such exchange.
1.4. With respect to the Acquiring Fund Shares
distributable pursuant to Section 1.3 to an Acquired Fund
shareholder holding a certificate or certificates for shares
of the Acquired Fund, if any, on the Valuation Date (as
defined in Section 2.4 of this Agreement), the Acquiring
Fund will not permit such shareholder to receive Acquiring
Fund Share certificates therefor, exchange such Acquiring
Fund Shares for shares of other series of the Trust, effect
an account transfer of such Acquiring Fund Shares, or
pledge or redeem such Acquiring Fund Shares until the
Acquiring Fund has been notified by the Acquired Fund or
its agent that such Acquired Fund shareholder has
surrendered all his or her outstanding certificates for
Acquired Fund Shares or, in the event of lost certificates,
posted adequate bond.
1.5. As soon as practicable on or after the Closing
Date, the Acquired Fund shall make all filings and take all
other steps as shall be necessary and proper to effect its
complete liquidation. Any reporting responsibility of the
cquired Fund, excluding tax reporting which is provided for
in Section 4.1(i), is and shall remain the responsibility of
the Acquired Fund up to and including the Closing Date and
thereafter.
1.6. Any and all obligations or liabilities arising
under or in respect of this Agreement shall be those of the
Acquired Fund or the Acquiring Fund, as the case may be, and
shall not otherwise be obligations or liabilities of the Trust,
and, for clarity, under no circumstances will any other series
of the Trust have any obligation or liability under or in
respect of this Agreement or the transactions contemplated hereby.
2. VALUATION AND VALUATION DATE
2.1. On the Closing Date, the Acquiring Fund will
deliver to the Acquired Fund a number of Class A, Class C,
Class K, and Class Y Acquiring Fund Shares (including
fractional shares, if any) determined as provided in
Section 1.
2.2. The value of the Acquired Fund's net assets
will be computed as of the Valuation Date (as defined in
Section 2.4 of this Agreement) using the valuation procedures
for the Acquiring Fund set forth in the Trust's Amended and
Restated Agreement and Declaration of Trust, as amended (the
"Declaration of Trust") and the Acquiring Fund's then current
prospectus or prospectuses and statement of additional
information or statements of additional information
(collectively, as amended or supplemented from time to time,
the "Acquiring Fund Prospectus").
2.3. The net asset value of a Class A, Class C, Class
K, or Class Y Acquiring Fund Share shall be the net asset value
per Class A share, Class C, Class K, or Class Y share, as the
case may be, of the Acquiring Fund computed as of the Valuation
Date using the valuation procedures for the Acquiring Fund set
forth in the Declaration of Trust and the Acquiring Fund
Prospectus.
2.4. The Valuation Date shall be 4:00 p.m. Eastern
time, and after the declaration of any dividends by the
Acquired Fund, on the business day immediately preceding the
Closing Date, or such earlier date as may be mutually agreed
upon in writing by the parties hereto (the "Valuation Date").
2.5. The Acquiring Fund shall issue the Acquiring Fund
Shares to the Acquired Fund on one or more share deposit
receipts registered in the name of the Acquired Fund. The
Acquired Fund shall distribute in liquidation the Acquiring
Fund Shares received by it hereunder to its shareholders as
contemplated by Section 1.1, by redelivering such share
deposit receipts to the Trust's transfer agent which will as
soon as practicable set up open accounts for Acquired Fund
shareholders in accordance with written instructions furnished
by the Acquired Fund. Immediately after the close of business
on the Valuation Date, the share transfer books of the
Acquired Fund will be closed and no further transfers of
Acquired Fund shares will be made.
2.6. The Acquired Fund will pay or cause to be paid
to the Acquiring Fund any interest, cash or such dividends,
rights and other payments received by it on or after the
Closing Date with respect to the Investments (as defined in
Section 4.1 of this Agreement) and other properties and assets
of the Acquired Fund, whether accrued or contingent, received
by it on or after the Closing Date. Any such distribution
shall be deemed included in the assets transferred to the
Acquiring Fund at the Closing Date and shall not be separately
valued unless the securities in respect of which such
distribution is made shall have gone "ex" such distribution
prior to the Valuation Date, in which case any such
distribution which remains unpaid at the Closing Date shall
be included in the determination of the value of the assets
of the Acquired Fund acquired by the Acquiring Fund.
2.7. All computations of value shall be made by
the pricing agent for the Acquiring Fund, in accordance with
its regular practice in pricing the shares and assets of the
Acquiring Fund using the valuation procedures set forth in
the Declaration of Trust and the Acquiring Fund Prospectus.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be March 22, 2013 or
at such other date to which the parties may agree. The
Closing shall be held at the offices of Ropes & ▇▇▇▇ LLP,
Prudential Tower, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
at 9:00 a.m. Eastern Time or at such other time and/or place
as the parties may agree.
3.2. The portfolio securities of the Acquired Fund
shall be made available by the Acquired Fund to the custodian
for the Acquiring Fund (the "Custodian"), for examination no
later than five business days preceding the Valuation Date.
On the Closing Date, such portfolio securities and all the
Acquired Fund's cash shall be delivered by the Acquired Fund
to the Custodian for the account of the Acquiring Fund, such
portfolio securities to be duly endorsed in proper form for
transfer in such manner and condition as to constitute good
delivery thereof in accordance with the custom of brokers or,
in the case of portfolio securities held in the U.S. Treasury
Department's book-entry system or by the Depository Trust
Company, Participants Trust Company or other third party
depositories, by transfer to the account of the Custodian
in accordance with Rule 17f-4, Rule 17f-5 or Rule 17f-7, as
the case may be, under the Investment Company Act of 1940, as
amended (the "1940 Act"), and accompanied by all necessary
federal and state stock transfer stamps or a check for the
appropriate purchase price thereof. The cash delivered shall
be in the form of currency or certified or official bank
checks, payable to the order of the custodian for the
Acquiring Fund.
3.3. In the event that on the Valuation 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 Acquired Fund or the Acquiring 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 within three business days after the Valuation Date,
this Agreement may be terminated by the Acquiring Fund or the
Acquired Fund upon the giving of written notice to the other
party.
3.4. At the Closing, the Acquired Fund or its
transfer agent shall deliver to the Acquiring Fund or its
designated agent a list of the names and addresses of the
Acquired Fund shareholders and the number of outstanding
shares of the Acquired Fund owned by each Acquired Fund
shareholder, all as of the close of business on the
Valuation Date, certified by any Vice President, Secretary
or Assistant Secretary of the Trust, on behalf of the
Acquired Fund. The Acquiring Fund will provide to the
Acquired Fund evidence reasonably satisfactory to the
Acquired Fund that the Acquiring Fund Shares issuable
pursuant to Section 1.1 have been credited to the Acquired
Fund's account on the books of the Acquiring Fund. On the
Liquidation Date, the Acquiring Fund will provide to the
Acquired Fund evidence reasonably satisfactory to the Acquired
Fund that such Acquiring Fund Shares have been credited pro
rata within each class of shares to open accounts in the names
of Acquired Fund shareholders as provided in Section 1.3.
3.5. At the Closing, each party shall deliver to the
other such bills of sale, instruments of assumption of
liabilities, checks, assignments, stock certificates, receipts
or other documents as such other party or its counsel may
reasonably request in connection with the transfer of assets,
assumption of liabilities and liquidation contemplated by
Section 1.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of the Trust,
on behalf of the Acquired Fund.
The Trust, on behalf of the Acquired Fund, represents and
warrants the following to the Acquiring Fund as of the date
hereof and agrees to confirm the continuing accuracy and
completeness in all material respects of the following on
the Closing Date:
(a) The Trust is a business trust duly
organized and validly existing under the laws of The
Commonwealth of Massachusetts and has power to own all
of its properties and assets and to carry out its
obligations under this Agreement. The Trust is not
required to qualify as a foreign entity in any
jurisdiction where it is not so qualified and the
failure to so qualify would have a material adverse
effect on the Acquired Fund. The Acquired Fund has all
necessary federal, state and local authorizations to
carry on its business as now being conducted.
(b) The Trust is duly registered under the
1940 Act, as a management company of the open-end type, and
such registration has not been revoked or rescinded and
is in full force and effect, and the Acquired Fund is a
separate series thereof duly designated in accordance with
the applicable provisions of the Declaration of Trust of the
Trust and the 1940 Act.
(c) The Acquired Fund is not in violation in
any material respect of any provisions of the Declaration of
Trust or the Trust's Bylaws (the "Bylaws") or any agreement,
indenture, instrument, contract, lease or other undertaking
to which the Acquired Fund is a party or by which the Acquired
Fund or its assets are bound, and the execution, delivery and
performance of this Agreement will not result in any such
violation.
(d) The Acquired Fund's current prospectus
and statement of additional information (collectively, as
amended or supplemented from time to time, the "Acquired Fund
Prospectus") conform in all material respects to the
applicable requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the 1940 Act and the rules and
regulations of the Securities and Exchange Commission (the
"Commission") thereunder and do not include any untrue
statement of a material fact or omit to state any material
fact relating to the Acquired Fund required to be stated
therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(e) At the Closing Date, the Acquired Fund
will have good and marketable title to the Acquired Fund's
assets to be transferred to the Acquiring Fund pursuant to
Section 1.2.
(f) Except as otherwise disclosed to the
Acquiring Fund, no material litigation, administrative or
other proceedings or investigation is presently pending or,
to the knowledge of the Acquired Fund, threatened as to the
Acquired Fund or any of its properties or assets or any
person whom the Acquired Fund may be obligated to directly
or indirectly indemnify in connection with such litigation,
proceedings or investigation. Neither the Trust nor the
Acquired Fund knows of any facts which might form the basis
for the institution of such proceedings and the Acquired 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 its business or its ability
to consummate the transactions contemplated hereby.
(g) The statement of assets and liabilities,
statement of operations, statement of changes in net assets
and schedule of portfolio investments (indicating their
market values) of the Acquired Fund at, as of, and for the
fiscal year ended December 31, 2012, audited by
PricewaterhouseCoopers LLP, independent registered public
accounting firm to the Acquired Fund, copies of which have
been furnished to the Acquiring Fund, fairly reflect the
financial condition, results of operations, and changes in
net assets of the Acquired Fund as of such date and for the
period then ended in accordance with accounting principles
generally accepted in the United States consistently applied,
and the Acquired Fund has no known liabilities of a material
amount, contingent or otherwise, other than those shown on
the statements of assets and liabilities referred to above,
or those incurred in the ordinary course of its business
since December 31, 2012.
(h) Since December 31, 2012, 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 (other
than in the ordinary course of business). For purposes of
this subparagraph (h), changes in portfolio securities,
changes in the market value of portfolio securities or net
redemptions shall be deemed to be in the ordinary course of
business.
(i) As of the Closing Date: (i) all federal
and other tax returns and reports of the Acquired Fund,
including but not limited to information returns, required by
law to have been filed by such date (giving effect to
extensions) shall have been timely filed and true, correct
and complete in all material respects as of the time of their
filing; (ii) all taxes (if any) of the Acquired Fund which
are due and payable on such returns or reports or on any
assessments received by Acquired Fund shall have been timely
paid or the timely payment thereof shall have been provided
for; (iii) the Acquired Fund is not liable for taxes of any
person other than itself and is not a party to any tax
sharing or allocation agreement; (iv) all of the Acquired
Fund's tax liabilities will have been adequately provided
for on its books; and (v) the Acquired Fund has not had any
tax deficiency or liability asserted against it or question
with respect thereto raised, and it is not under audit by
the Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
(j) For each taxable year of its operation
(including for the taxable year ending on the Closing Date),
the Acquired Fund has met, and will continue to meet at all
times through the Closing Date, the requirements of Subchapter
M of the Code for qualification and treatment as a "regulated
investment company," has elected to be treated as such, and
has computed or will compute, as applicable, its U.S. federal
income tax under Section 852 of the Code.
(k) The Acquired Fund has not received written
notification from any tax authority that asserts a position
contrary to any of the representations in paragraphs (i) or
(j) of this Section 4.1.
(l) The authorized capital of the Trust
consists of an unlimited number of shares of beneficial
interest, no par value, of such number of different series
as the Board of Trustees of the Trust may authorize from time
to time. The outstanding shares of beneficial interest of
the Acquired Fund as of the Closing Date are divided into
Class A shares, Class C shares, Class K shares, and Class Y
shares, each having the characteristics described in the
Acquired Fund Prospectus and will, at the time of the Closing
Date, be held by the persons and in the amounts set forth in
the records of the transfer agent as provided in Section 3.4.
All issued and outstanding shares of the Acquired Fund are,
and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Acquired
Fund (except as set forth in the Acquired Fund Prospectus),
and will have been issued in compliance with all applicable
registration or qualification requirements of federal and
state securities laws. No options, warrants or other rights
to subscribe for or purchase, or securities convertible into,
any shares of the Acquired Fund are outstanding.
(m) The Acquired Fund's investment operations
from inception to the date hereof have been in compliance in
all material respects with the investment policies and
investment restrictions set forth in the Acquired Fund
Prospectus, except as previously disclosed in writing to
the Acquiring Fund.
(n) The execution, delivery and performance
of this Agreement have been duly authorized by the Board of
Trustees of the Trust and by all other necessary trust action
on the part of the Trust and the Acquired Fund, and this
Agreement constitutes the valid and binding obligation of
the Acquired Fund enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement
of creditors' rights generally and other equitable principles.
(o) The Acquiring Fund Shares to be issued to
the Acquired Fund pursuant to the terms of this Agreement
will not be acquired for the purpose of making any
distribution thereof other than to Acquired Fund shareholders
as provided in Section 1.1(c).
(p) There are no material contracts
outstanding to which the Acquired Fund is a party, other than
as disclosed in the Acquired Fund Prospectus or in the
registration statement of the Trust, as amended, filed with
the Commission under the 1933 Act and the 1940 Act (the
"Registration Statement").
(q) 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, except such as may be
required under the 1933 Act, the Securities Exchange Act of
1934 Act (the "1934 Act"), the 1940 Act, state securities or
blue sky laws (which term as used herein shall include the
laws of the District of Columbia and of Puerto Rico).
(r) As of both the Valuation Date and the
Closing Date, the Acquired Fund will have full right, power
and authority to sell, assign, transfer and deliver the
Investments (as defined below) and any other assets and
liabilities of the Acquired Fund to be transferred to the
Acquiring Fund pursuant to this Agreement. At the Closing
Date, subject only to the delivery of the Investments and any
such other assets and liabilities as contemplated by this
Agreement, the Acquiring Fund will acquire the Investments
and any such other assets subject to no encumbrances, liens
or security interests in favor of any third party creditor
of the Acquired Fund, and without any restrictions upon the
transfer thereof, including such restrictions as might
arise under the 1933 Act. As used in this Agreement, the
term "Investments" shall mean the Acquired Fund's investments
shown on the schedule of its portfolio investments as of
December 31, 2012 referred to in Section 4.1(g) hereof, as
supplemented with such changes as the Acquired Fund shall make
after December 31, 2012, which changes shall be disclosed to
the Acquiring Fund in an updated schedule of investments, and
changes resulting from stock dividends, stock split-ups, mergers
and similar corporate actions through the Closing Date.
(s) The books and records of the Acquired
Fund made available to the Acquiring Fund and/or its counsel
are substantially true and correct and contain no material
misstatements or omissions with respect to the operations of
the Acquired Fund.
(t) To the best of the Trust's and the Acquired
Fund's knowledge, all of the issued and outstanding
shares of the Acquired Fund shall have been offered for sale
and sold in conformity with all applicable federal and state
securities laws (including any applicable exemptions therefrom),
or the Acquired Fund has taken any action necessary to remedy
any prior failure to have offered for sale and sold such
shares in conformity with such laws.
4.2. Representations and Warranties of the Trust,
on behalf of the Acquiring Fund.
The Trust, on behalf of the Acquiring Fund, represents and
warrants the following to the Acquired Fund as of the date
hereof and agrees to confirm the continuing accuracy and
completeness in all material respects of the following on
the Closing Date:
(a) The Trust is a business trust duly organized
and validly existing under the laws of The Commonwealth of
Massachusetts and has power to own all of its properties and
assets and to carry out its obligations under this Agreement.
The Trust is not required to qualify as a foreign entity in
any jurisdiction where it is not so qualified and the failure
to so qualify would have a material adverse effect on the
Acquiring Fund. The Acquiring Fund has all necessary federal,
state and local authorizations to carry on its business as
now being conducted.
(b) The Trust is duly registered under the 1940
Act, as a management company of the open-end type, and such
registration has not been revoked or rescinded and is in full
force and effect, and the Acquiring Fund is a separate series
thereof duly designated in accordance with the applicable
provisions of the Declaration of Trust of the Trust and the
1940 Act.
(c) The Acquiring Fund is not in violation in
any material respect of any provisions of the Declaration of
Trust or Bylaws or any agreement, indenture, instrument,
contract, lease or other undertaking to which the Acquiring
Fund is a party or by which the Acquiring Fund or its assets
are bound, and the execution, delivery and performance of this
Agreement will not result in any such violation.
(d) The Acquiring Fund Prospectus conforms in
all material respects to the applicable requirements of the
1933 Act and the 1940 Act and the rules and regulations of
the Commission thereunder and does not and will not include
any untrue statement of a material fact or omit to state any
material fact relating to the Acquiring Fund required to be
stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made,
not misleading.
(e) At the Closing Date, the Acquiring Fund
will have good and marketable title to its assets.
(f) Except as otherwise disclosed to the
Acquired Fund, no material litigation, administrative or other
proceedings or investigation is presently pending or, to the
knowledge of the Acquiring Fund, threatened as to the
Acquiring Fund or any of its properties or assets or any person
whom the Acquiring Fund may be obligated to directly or
indirectly indemnify in connection with such litigation,
proceedings or investigation. Neither the Trust nor the
Acquiring Fund knows of any facts which might form the basis
for the institution of such proceedings and 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 its business or its ability to
consummate the transactions contemplated hereby.
(g) The statement of assets and liabilities,
statement of operations, statement of changes in net assets,
and schedule of portfolio investments (indicating their market
values) of the Acquiring Fund at, as of and for the fiscal year
ended December 31, 2012, audited by PricewaterhouseCoopers LLP,
independent registered public accounting firm to the Acquiring
Fund, copies of which have been furnished to the Acquired Fund,
fairly reflect the financial condition, results of operations,
and changes in net assets of the Acquiring Fund as of such date
and for the period then ended in accordance with generally
accepted accounting principles consistently applied, and the
Acquiring Fund has no known liabilities of a material amount,
contingent or otherwise, other than those shown on the statements
of assets referred to above or those incurred in the ordinary
course of its business since December 31, 2012.
(h) Since December 31, 2012, there has not been
any material adverse change in the Acquiring Fund's financial
condition, assets, liabilities or business (other than changes
occurring in the ordinary course of business), or any
incurrence by the Acquiring Fund of indebtedness (other than
in the ordinary course of business). For purposes of this
subparagraph (g), changes in portfolio securities, changes in
the market value of portfolio securities or net redemptions
shall be deemed to be in the ordinary course of business.
(i) As of the Closing Date: (i) all federal and
other tax returns and reports of the Acquiring Fund, including
but not limited to information returns, required by law to have
been filed by such date (giving effect to extensions) shall
have been timely filed and true, correct and complete in all
material respects as of the time of their filing; (ii) all
taxes (if any) of the Acquiring Fund which are due and payable
on such returns or reports or on any assessments received by
Acquiring Fund shall have been timely paid or the timely
payment thereof shall have been provided for; (iii) the
Acquiring Fund is not liable for taxes of any person other
than itself and is not a party to any tax sharing or
allocation agreement; (iv) all of the Acquiring Fund's tax
liabilities will have been adequately provided for on its
books; and (v) the Acquiring Fund has not had any tax
deficiency or liability asserted against it or question with
respect thereto raised, and it is not under audit by the
Internal Revenue Service or by any state or local tax
authority for taxes in excess of those already paid.
(j) For each taxable year of its operation
(including for the current taxable year ending on December
31, 2013), the Acquiring Fund has met, and will continue to
meet at all times through the Closing Date, the requirements
of Subchapter M of the Code for qualification and treatment
as a "regulated investment company," has elected to be
treated as such, and has computed or will compute, as
applicable, its U.S. federal income tax under Section 852
of the Code.
(k) The Acquired Fund has not received written
notification from any tax authority that asserts a position
contrary to any of the representations in paragraphs (h) or
(i) of this Section 4.2.
(l) The authorized capital of the Trust consists
of an unlimited number of shares of beneficial interest, no par
value, of such number of different series as the Board of
Trustees of the Trust may authorize from time to time. The
outstanding shares of beneficial interest in the Acquiring Fund
as of the Closing Date will be divided into Class A shares,
Class C shares, Class K shares, and Class Y shares, each having
the characteristics described in the Acquiring Fund Prospectus.
All issued and outstanding shares of the Acquiring Fund,
including the Acquiring Fund Shares issued hereunder, are,
and at the Closing Date will be, duly and validly issued
and outstanding, fully paid and non-assessable (except as set
forth in the Acquiring Fund Prospectus) by the Acquiring Fund,
and will have been issued in compliance with all applicable
registration or qualification requirements of federal and
state securities laws. No options, warrants or other rights
to subscribe for or purchase, or securities convertible into,
any shares of the Acquiring Fund are outstanding.
(m) The execution, delivery and performance of
this Agreement have been duly authorized by the Board of
Trustees of the Trust and by all other necessary trust
action on the part of the Trust and the Acquiring Fund, and
constitute the valid and binding obligation of the Acquiring
Fund enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors'
rights generally and other equitable principles.
(n) There are no material contracts outstanding
to which the Acquiring Fund is a party, other than as
disclosed in the Acquiring Fund Prospectus or in the
Registration Statement.
(o) The books and records of the Acquiring Fund
made available to the Acquired Fund and/or its counsel are
substantially true and correct and contain no material
misstatements or omissions with respect to the operations of
the Acquiring Fund.
(p) 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 this Agreement, except such as may be required
under the 1933 Act, the 1934 Act, the 1940 Act, state
securities or blue sky laws.
5. COVENANTS OF THE PARTIES.
5.1. Each of the Acquired Fund and the Acquiring Fund
will operate its business in the ordinary course between the
date hereof and the Closing Date, it being understood that
such ordinary course of business will include purchases and
sales of portfolio securities, sales and redemptions of fund
shares, and regular and customary periodic dividends and
distributions.
5.2. As promptly as practicable, but in any case
within sixty days after the Closing Date, the Acquired Fund
shall furnish the Acquiring Fund, in such form as is
reasonably satisfactory to the Acquiring Fund, a statement of
the earnings and profits and capital loss carryovers of the
Acquired 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
PricewaterhouseCoopers LLP and certified by the Trust's
President and Treasurer.
5.3. The Acquiring Fund will use all reasonable
efforts to obtain the approvals and authorizations required
by the 1933 Act, the 1940 Act and such of the state
securities or blue sky laws as it may deem appropriate in
order to continue its operations after the Closing Date.
5.4. The Acquired Fund agrees that the liquidation of
the Acquired Fund will be effected in the manner provided in
the Declaration of Trust and Bylaws in accordance with
applicable law, and that on and after the Closing Date, the
Acquired Fund shall not conduct any business except in
connection with its liquidation.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING
FUND.
The obligations of the Acquiring Fund to complete the
transactions provided for herein shall be subject, at its
election, to the performance by the Acquired Fund of all the
obligations to be performed by it hereunder on or before the
Closing Date and, in addition thereto, to the following
further conditions:
6.1. The Acquired Fund shall have delivered to the
Acquiring Fund a certificate executed on its behalf by the
Trust's President or any Vice President and its Treasurer
or Assistant Treasurer, in form and substance reasonably
satisfactory to the Acquiring Fund and dated as of the
Closing Date, to the effect that the representations and
warranties of the Acquired 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 that the Acquired Fund has complied with
all the covenants and agreements and satisfied all of the
conditions on their parts to be performed or satisfied under
this Agreement at or prior to the Closing Date.
6.2. The Acquired Fund shall have furnished to the
Acquiring Fund a statement of the Acquired Fund's assets and
liabilities, with values determined as provided in Section 2
of this Agreement, together with a list of Investments with
their respective tax costs, all as of the Valuation Date,
certified on the Acquired Fund's behalf by the Trust's
President (or any Vice President) and Treasurer, and a
certificate of both such officers, dated the Closing Date,
to the effect that as of the Valuation Date and as of the
Closing Date there has been no material adverse change in
the financial position of the Acquired Fund since December
31, 2012.
6.3. The assets of the Acquired Fund to be acquired
by the Acquiring Fund will include no assets which the
Acquiring Fund, by reason of limitations contained in the
Declaration of Trust or of investment restrictions disclosed
in the Acquiring Fund Prospectus in effect on the Closing
Date, may not properly acquire, and as of the Closing Date,
the Acquired Fund will have sold such of its assets, if any,
as are necessary to ensure that, after giving effect to the
acquisition of the assets of the Acquired Fund pursuant to
this agreement, the Acquiring Fund will remain a "diversified
company" within the meaning of Section 5(b)(1) of the 1940 Act.
6.4. All proceedings taken by the Acquired Fund in
connection with the transactions contemplated by this
Agreement and all material documents related thereto shall
be reasonably satisfactory in form and substance to the
Acquiring Fund.
6.5. The Acquired Fund shall have furnished to the
Acquiring Fund a certificate, signed on its behalf by the
President or any Vice President and the Treasurer or any
Assistant Treasurer of the Trust, as to the adjusted tax
basis in the hands of the Acquired Fund of the securities
delivered to the Acquiring Fund pursuant to this Agreement,
together with any such other evidence as to such adjusted
tax basis as the Acquiring Fund may reasonably request.
6.6. The Trust, on behalf of the Acquired Fund, prior
to the Closing Date, shall have declared a dividend or
dividends that, together with all previous such dividends,
shall have the effect of distributing to the Acquired Fund
shareholders (i) all of the Acquired Fund's investment
company taxable income as defined in Section 852 of the
Code, and (ii) all of the excess, if any, of (x) the
Acquired Fund's investment income excludable from gross
income under Section 103 of the Code over (y) the Acquired
Fund's deductions disallowed under Sections 265 and 171 of
the Code, and (iii) all of the Acquired Fund's net capital
gain realized (after reduction by any capital loss carryover),
in each case computed without regard to any deduction for
dividends paid, and in each case for both the Acquired Fund's
current taxable year (that will end on the Closing Date) and
any prior taxable year to the extent such dividend or
dividends are eligible to be treated as paid with respect to
such prior year under Section 855(a) of the Code.
6.7. The Acquired Fund's custodian shall have
delivered to the Acquiring Fund a certificate identifying
all of the assets of the Acquired Fund held by such
custodian as of the Valuation Date.
6.8. The Acquired Fund's transfer agent shall have
provided to the Acquiring Fund's transfer agent (i) the
originals or true copies of all of the records of the
Acquired Fund in the possession of the Acquired Fund's
transfer agent as of the Closing Date, (ii) a record
specifying the number of Acquired Fund Shares outstanding
as of the Valuation Date and (iii) a record specifying the
name and address of each holder of record of any Acquired
Fund Shares and the number of Acquired Fund Shares held of
record by each such shareholder as of the Valuation Date.
The Acquired Fund's transfer agent shall also have provided
the Acquiring Fund with a certificate confirming that the
acts specified in the preceding sentence have been taken and
that the information so supplied is complete and accurate to
the best knowledge of the transfer agent.
6.9. All of the issued and outstanding shares of the
Acquired Fund shall have been offered for sale and sold in
conformity with all applicable state securities or blue sky
laws (including any applicable exemptions therefrom) and,
to the extent that any audit of the records of the Acquired
Fund or its transfer agent by the Acquiring Fund or its
agents shall have revealed otherwise, either (i) the
Acquired Fund shall have taken all actions that in the
opinion of the Acquiring Fund or its counsel are necessary
to remedy any prior failure on the part of the Acquired Fund
to have offered for sale and sold such shares in conformity
with such laws or (ii) the Acquired Fund shall have
furnished (or caused to be furnished) surety, or deposited
(or caused to be deposited) assets in escrow, for the benefit
of the Acquiring Fund in amounts sufficient and upon terms
satisfactory, in the opinion of the Acquiring Fund or its
counsel to indemnify the Acquiring Fund against any expense,
loss, claim, damage or liability whatsoever that may be
asserted or threatened by reason of such failure on the part
of the Acquired Fund to have offered and sold such shares
in conformity with such laws.
6.10. The Acquiring Fund shall have received a
favorable opinion of Ropes & ▇▇▇▇ LLP, counsel to the
Acquired Fund for the transactions contemplated hereby,
dated the Closing Date, with such assumptions and
limitations as shall be in the opinion of such firm
appropriate to render the opinions expressed therein, and
in a form satisfactory to the Acquiring Fund, to the
following effect:
(a) This Agreement has been duly authorized,
executed and delivered by the Trust, on behalf of the
Acquired Fund, and assuming the 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 Trust on behalf of the Acquired Fund enforceable
against the Trust on behalf of the Acquired Fund in
accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally and other equitable principles.
(b) The Trust has the trust power to own all
of its properties and assets and to carry on its business as
currently conducted, as described in the Registration
Statement.
(c) The execution and delivery of this
Agreement by the Trust on behalf of the Acquired Fund did
not, and the performance by the Trust on behalf of the
Acquired Fund of its obligations hereunder will not, violate
the Declaration of Trust or Bylaws, or result in a breach or
violation of, or constitute a default under, any agreement
listed as an exhibit in the Registration Statement.
(d) To the knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental authority is required for the consummation by
the Trust on behalf of the Acquired Fund of the transactions
contemplated by this Agreement, except such as have been
obtained.
(e) The Trust is registered with the Securities
and Exchange Commission as an investment company under the
1940 Act.
7.CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED
FUND.
The obligations of the Acquired Fund to complete the
transactions provided for herein shall be subject, at its
election, to the performance by the Acquiring Fund of all
the obligations to be performed by it hereunder on or before
the Closing Date and, in addition thereto, to the following
further conditions:
7.1.The Acquiring Fund shall have delivered to the
Acquired Fund a certificate executed on their behalf by the
Trust's President or any Vice President and its 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 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 that the
Acquiring Fund has complied with all the covenants and
agreements and satisfied all of the conditions on their
parts to be performed or satisfied under this Agreement at
or prior to the Closing Date.
7.2. The Trust, on behalf of the Acquiring Fund,
shall have executed and delivered to the Acquired Fund an
assumption of liabilities agreement dated as of the Closing
Date pursuant to which the Acquiring Fund will assume all
of the liabilities of the Acquired Fund existing at the
Valuation Date in connection with the transactions
contemplated by this Agreement.
7.3. All proceedings taken by the Acquiring Fund in
connection with the transactions contemplated by this Agreement
and all documents incidental thereto shall be reasonably
satisfactory in form and substance to the Acquired Fund.
7.4. The Acquired Fund shall have received a favorable
opinion of Ropes & ▇▇▇▇ LLP, counsel to the Trust for the
transactions contemplated hereby, dated the Closing Date,
with such assumptions and limitations as shall be in the
opinion of Ropes & ▇▇▇▇ LLP appropriate to render the opinions
expressed therein, and in a form satisfactory to the Acquired
Fund, to the following effect:
(a) This Agreement has been duly authorized, executed and
delivered by the Trust, on behalf of the Acquiring Fund,
and assuming the due authorization, execution and delivery
of this Agreement by the Trust, on behalf of the Acquired
Fund, is the valid and binding obligation of the Trust on
behalf of the Acquiring Fund enforceable against the Trust
on behalf of the Acquiring Fund in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforcement of creditors' rights generally and other
equitable principles.
(b) The Trust has the trust power to own all of its properties
and assets and to carry on its business as currently conducted,
as described in the Registration Statement.
(c) The execution and delivery of this Agreement by the Trust
on behalf of the Acquiring Fund did not, and the performance
by the Trust on behalf of the Acquiring Fund of its
obligations hereunder will not, violate the Declaration of
Trust or Bylaws, or result in a breach or violation of, or
constitute a default under, any agreement listed as an exhibit
in the Registration Statement.
(d) To the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental authority
is required for the consummation by the Trust on behalf of
the Acquiring Fund of the transactions contemplated by this
Agreement, except such as have been obtained.
(e) The Trust is registered with the Securities and Exchange
Commission as an investment company under the 1940 Act.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES.
The respective obligations of the Trust, the Acquiring Fund,
and the Acquired Fund hereunder are subject to the further
conditions that on or before the Closing Date:
8.1. On the Closing Date, the Commission shall not have
issued an unfavorable report under Section 25(b) of the
1940 Act, nor instituted any proceeding seeking to enjoin
the consummation of the transactions contemplated by this
Agreement under Section 25(c) of the 1940 Act and 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.
8.2. 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 of state
blue sky and securities authorities) deemed necessary by
the Trust, the Acquired Fund, or the Acquiring Fund 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.
8.3. The Acquired Fund and the Acquiring Fund shall have
received a favorable opinion of Ropes & ▇▇▇▇ LLP dated on
the Closing Date (which opinion will be subject to certain
qualifications) satisfactory to both parties substantially
to the effect that, on the basis of the existing provisions
of the Code, Treasury regulations promulgated thereunder,
current administrative rules, and court decisions, as
further described below, generally for federal income tax
purposes:
(a) The Reorganization will constitute a reorganization
within the meaning of Section 368(a) of the Code, and
the Acquired Fund and the Acquiring Fund each will 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 Acquired
Fund (i) upon the transfer of its assets to the Acquiring
Fund in exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the liabilities of
the Acquired Fund or (ii) upon the distribution of the
Acquiring Fund Shares by the Acquired Fund to its
shareholders in liquidation, as contemplated in Section 1
hereof, except for (A) any gain or loss recognized on (1)
"Section 1256 contracts" as defined in Section 1256(b) of
the Code or (2) stock in a "passive foreign investment
company" as defined in Section 1297(a) of the Code, and
(B) any other gain or loss required to be recognized by
reason of the reorganization (1) as a result of the
closing of the tax year of the Acquired Fund, (2) upon
the termination of a position, or (3) upon the transfer
of such asset regardless of whether such a transfer would
otherwise be a nontaxable transaction under the Code;
(c) No gain or loss will be recognized by the Acquiring
Fund upon the receipt of the assets transferred to it
pursuant to this Agreement in exchange for Acquiring Fund
Shares and the assumption by the Acquiring Fund of the
liabilities of the Acquired Fund;
(d) The tax basis in the hands of the Acquiring Fund of
the assets of the Acquired Fund transferred to the Acquiring
Fund will be the same as the tax basis of such assets in
the hands of the Acquired Fund immediately prior to the
transfer, adjusted for any gain or loss required to be
recognized as described in (b) above;
(e) The Acquiring Fund's holding periods with respect
to the assets it receives from the Acquired Fund, other
than any asset with respect to which gain or loss is
required to be recognized as described in (b) above, will
include the respective periods for which the assets were
held or treated for federal income tax purposes as being
held by the Acquired Fund;
(f) Acquired Fund shareholders will recognize no gain or
loss on the distribution of Acquiring Fund Shares to them
in exchange for their Acquired Fund Shares;
(g) The aggregate tax basis of the Acquiring Fund Shares
that an Acquired Fund shareholder receives in connection
with the transactions contemplated by this Agreement
will be the same as the aggregate tax basis of Acquired
Fund Shares exchanged therefor;
(h) An Acquired Fund shareholder's holding period for
the Acquiring Fund Shares received pursuant to this
Agreement will include the shareholder's holding period
of the Acquired Fund Shares exchanged therefor, provided
that the shareholder held Acquired Fund Shares as a
capital asset on the date of the exchange; and
(i) The Acquiring Fund will succeed to and take into
account the items of the Acquired Fund described in
Section 381(c) of the Code, subject to the conditions
and limitations specified in Sections 381, 382, 383 and
384 of the Code and the regulations thereunder.
The opinion will be based on certain factual certifications
made by officers of the Trust and will also be based on
customary assumptions. The opinion is not a guarantee
that the tax consequences of the Reorganizations will be
as described above. The opinion will note and distinguish
certain published precedent. There is no assurance that
the Internal Revenue Service or a court would agree with
the opinion.
8.4. At any time prior to the Closing, any of the foregoing
conditions of this Section 8 may be waived by the Board
of Trustees of the Trust, if, in the judgment of the Board
of Trustees of the Trust, such waiver will not have a
material adverse effect on the interests of the
shareholders of the Acquired Fund or the interests of the
shareholders of the Acquiring Fund.
9. BROKERAGE FEES; EXPENSES.
9.1. Each of the Trust, the Acquired Fund, and the Acquiring
Fund represents that there is no person who has dealt with
it who by reason of such dealings is entitled to any
broker's or finder's or other similar fee or commission
arising out of the transactions contemplated by this
Agreement.
9.2. RS Investments will bear and pay all direct expenses
relating to the Reorganization, including without limitation
legal fees and fees and expenses of the Funds' independent
accountants; provided, however, that each Fund will bear
transaction costs associated with trading portfolio securities
prior to the Reorganization, including brokerage commissions
and related expenses.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1. This Agreement supersedes all previous correspondence
and oral communications between the parties regarding the
subject matter hereof, constitutes the only understanding
with respect to such subject matter and may not be changed
except by a letter of agreement signed by each party hereto.
10.2. The representations, warranties and covenants
contained in this Agreement or in any other document
delivered pursuant hereto or in connection herewith shall
not survive the consummation of the transactions
contemplated hereunder.
11. TERMINATION
11.1. This Agreement may be terminated by the mutual
agreement of the Acquired Fund and the Acquiring Fund,
prior to the Closing Date.
11.2. In addition, either the Acquired Fund or the
Acquiring Fund may at its option terminate this Agreement
at or prior to the Closing Date because:
(a) With respect to a termination by the Acquired Fund,
of a material breach by the Acquiring Fund of any
representation, warranty, covenant or agreement contained
herein to be performed by the Acquiring Fund at or prior
to the Closing Date; or with respect to a termination by
the Acquiring Fund, of a material breach by the Acquired
Fund of any representation, warranty, covenant or agreement
herein to be performed by the Acquired Fund at or prior
to the Closing Date;
(b) A condition herein expressed to be precedent to the
obligations of the terminating party has not been met and
it reasonably appears that it will not or cannot be met; or
(c) Any governmental authority of competent jurisdiction
shall have issued any judgment, injunction, order, ruling
or decree or taken any other action restraining, enjoining
or otherwise prohibiting this Agreement or the consummation
of any of the transactions contemplated herein and such
judgment, injunction, order, ruling, decree or other action
becomes final and non-appealable; provided that the party
seeking to terminate this Agreement pursuant to this
Section 11.2(c) shall have used its reasonable efforts to
have such judgment, injunction, order, ruling, decree or
other action lifted, vacated or denied.
11.3. If the transactions contemplated by this Agreement have
not been substantially completed by August 31, 2013, this
Agreement shall automatically terminate on that date unless a
later date is agreed to by both the Acquired Fund and the
Acquiring Fund.
11.4. If for any reason the transactions contemplated by this
Agreement are not consummated, no party shall be liable to
any other party for any damages resulting therefrom,
including, without limitation, consequential damages.
11.5. In the event of the termination of this Agreement and
abandonment of the transactions contemplated hereby pursuant
to this Section 11, this Agreement shall become void and have
no effect except that (a) Sections 9, 11.4, 14 and 15 shall
survive any termination of this Agreement, and (b)
notwithstanding anything to the contrary contained in this
Agreement, no party shall be relieved or released from any
liability or damages arising out of any breach of any provision
of this Agreement by any party prior to the date of termination,
unless the termination is effected pursuant to Section 11.1.
12. TRANSFER TAXES.
Any transfer taxes payable upon issuance of the 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.
13. AMENDMENTS.
This Agreement may be amended, modified or supplemented in
such manner as may be agreed upon in writing by the
authorized officers of the Trust.
14. 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 Trust, the Acquiring Fund or the Acquired
Fund at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: President.
15. MISCELLANEOUS.
15.1. The article and Section headings contained in this
Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement.
15.2. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
15.3. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of The
Commonwealth of Massachusetts, without giving effect to any
choice or conflicts of law rule or provision that would
result in the application of the domestic substantive laws
of any other jurisdiction.
15.4. 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 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.
15.5. A copy of the Declaration of Trust dated March 13, 1997,
as amended, to which reference is hereby made is on file at
the office of the Secretary of The Commonwealth of Massachusetts
and elsewhere as required by law. This Agreement was executed
or made by or on behalf of the Trust and the Acquiring Fund by
the Trustees or officers of the Trust as Trustees or officers
and not individually and the obligations of this Agreement are
not binding upon any of them or the shareholders of the
Acquiring Fund individually but are binding only upon the
assets and property of the Trust or upon the assets belonging
to the series or class for the benefit of which the Trustees
have caused this Agreement to be made.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its President, a Vice President
or Treasurer.
RS INVESTMENT TRUST
On behalf of RS Growth Fund
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
RS INVESTMENT TRUST
On behalf of RS Capital Appreciation Fund
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Solely for the purpose of paragraph 9.2:
RS INVESTMENT MANAGEMENT CO. LLC
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer