AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (
Plan ) is entered into as of March 19th , 2013, by and between
SALIENT ALTERNATIVE STRATEGIES FUND, a Delaware
statutory trust ( Target ), and SALIENT ALTERNATIVE
STRATEGIES I FUND, a Delaware statutory trust ( Acquiring
Fund; each of Target and Acquiring Fund being sometimes
referred to herein as a Fund ).
Each Fund is a statutory trust that is duly organized, validly
existing, and in good standing under the laws of the State of
Delaware and is duly registered under the Investment Company
Act of 1940, as amended ( 1940 Act ), as a non-diversified
closed-end management investment company. Each Fund is
classified for federal tax purposes as an association taxable as a
corporation, and neither has ever elected otherwise.
The Funds wish to effect a reorganization described in section
368(a)(1)(C) of the Internal Revenue Code of 1986, as amended
( Code ) (all section references are to the Code, unless
otherwise noted), and intend this Plan to be, and adopts it as, a
plan of reorganization (within the meaning of the regulations
under section 368(a) ( Regulations )). The reorganization will
consist of (1) the transfer of Target s assets to Acquiring Fund in
exchange solely for shares in Acquiring Fund and Acquiring
Fund s assumption of Target s liabilities, (2) the distribution of
those shares pro rata to Target s shareholders in exchange for
their shares in Target and in liquidation thereof, and (3) Target s
termination, all on the terms and conditions set forth herein
(collectively, Reorganization ).
Target s First Amended and Restated Agreement and Declaration
of Trust, dated January 29, 2010, as amended, and Acquiring
Fund s First Amended and Restated Agreement and Declaration
of Trust, dated January 29, 2010, as amended (each, a
Declaration of Trust ) permits it to vary its shareholders
investment. Neither Fund has a fixed pool of assets; each Fund
is a managed portfolio of securities, and Salient Advisors, L.P.,
each Fund s investment adviser ( Adviser ), has the authority to
buy and sell securities for it.
Each Fund s Board of Trustees (each, a Board ), including a
majority of its members who are not interested persons (as that
term is defined in the 0000 Xxx) thereof, (1) has duly adopted
this Plan, duly approved the transactions contemplated hereby,
and duly authorized each Fund s performance and
consummation of the Reorganization and (2) has determined that
participation in the Reorganization is in the best interests of each
Fund and that the interests of the existing shareholders thereof
will not be diluted as a result of the Reorganization.
Target has a single issued and outstanding class of shares (
Target Shares ). Acquiring Fund also has a single issued and
outstanding class of shares ( Acquiring Fund Shares ). The
rights, powers, privileges, and obligations of the Funds shares
are substantially similar.
NOW, THEREFORE, in order to consummate said Plan and in
consideration of the mutual agreements set forth herein, the
parties hereto agree as follows:
1. PLAN OF REORGANIZATION
1.1 Subject to the terms and conditions set forth herein, Target
shall assign, sell, convey, transfer, and deliver all of its assets
described in paragraph 1.2 ( Assets ) to Acquiring Fund. In
exchange therefor, Acquiring Fund shall
(a) issue and deliver to Target the number of full and
fractional (all references herein to fractional shares meaning
fractions rounded to the third decimal place) Acquiring Fund
Shares determined by dividing Target s net value (computed as
set forth in paragraph 2.1) by the net asset value (computed as
set forth in paragraph 2.2) ( NAV ) of an Acquiring Fund Share,
and
(b) assume all of Target s liabilities described in paragraph
1.3 ( Liabilities ).
Those transactions shall take place at the Closing (as defined in
paragraph 3.1).
1.2 The Assets shall consist of all assets and property --
including all cash, cash equivalents, securities, commodities,
futures interests, receivables (including interest and dividends
receivable), claims and rights of action, rights to register shares
under applicable securities laws, books and records, and
deferred and prepaid expenses (other than unamortized
organizational expenses) shown as assets on Target s books --
Target owns at the Valuation Time (as defined in paragraph
2.1).
1.3 The Liabilities shall consist of all of Target s liabilities,
debts, obligations, and duties of whatever kind or nature existing
at the Valuation Time, whether absolute, accrued, contingent, or
otherwise, whether known or unknown, whether or not arising in
the ordinary course of business, and whether or not specifically
referred to in this Plan. Notwithstanding the foregoing, Target
will endeavor to discharge all its known liabilities, debts,
obligations, and duties before the Effective Time (as defined in
paragraph 3.1).
1.4 If the dividends and/or other distributions Target has paid
through the Effective Time for its current taxable year do not
equal or exceed the sum of its (a) investment company taxable
income (within the meaning of section 852(b)(2)), computed
without regard to any deduction for dividends paid, plus (b) net
capital gain (as defined in section 1222(11)), after reduction by
any capital loss carryovers, for that year through that time, then
at or as soon as practicable before that time, Target shall declare
and pay to its shareholders of record one or more dividends
and/or other distributions so that it will have distributed
substantially all of that income and gain for all tax periods
ending at or before the Effective Time, and treating its current
taxable year as ending at that time, such that Target will have no
tax liability under section 852 for the current and any prior tax
periods.
1.5 At the Effective Time (or as soon thereafter as is reasonably
practicable), Target shall distribute the Acquiring Fund Shares it
receives pursuant to paragraph 1.1(a) to the Target s shareholders
of record at the Effective Time (each, a Shareholder ), in
proportion to their Target Shares then held of record and in
constructive exchange therefor, and will completely liquidate.
That distribution shall be accomplished by the Acquiring Fund s
transfer agent s opening accounts on Acquiring Fund s
shareholder records in the names of the Shareholders (except
Shareholders in whose names accounts thereon already exist)
and crediting each Shareholder s newly opened or existing
account with the respective pro rata number of full and
fractional Acquiring Fund Shares due that Shareholder. The
aggregate NAV of Acquiring Fund Shares to be so credited to
each Shareholder s account shall equal the aggregate NAV of the
Target Shares that Shareholder owned at the Effective Time. All
issued and outstanding Target Shares, including any represented
by certificates, shall simultaneously be canceled on Target s
shareholder records. Acquiring Fund shall not issue certificates
representing the Acquiring Fund Shares issued in connection
with the Reorganization.
1.6 As soon as reasonably practicable after distribution of the
Acquiring Fund Shares pursuant to paragraph 1.5, but in all
events within six months after the Effective Time, Target shall be
terminated and any further actions shall be taken in connection
therewith as required by applicable law.
1.7 Any reporting responsibility of Target to a public authority,
including the responsibility for filing regulatory reports, tax
returns, and other documents with the Securities and Exchange
Commission ( Commission ), any state securities commission,
any federal, state, and local tax authorities, and any other
relevant regulatory authority, is and shall remain its responsibility
up to and including the date on which it is terminated.
2. VALUATION
2.1 For purposes of paragraph 1.1(a), Target s net value shall be
(a) the value of the Assets computed immediately after the close
of regular trading on the New York Stock Exchange ( NYSE ),
and Target s declaration of dividends and/or other distributions,
if any, on the date of the Closing ( Valuation Time ), using the
valuation procedures set forth in the Target s then-current
prospectus and statement of additional information ( Pro/SAI )
and valuation procedures established by the Board, less (b) the
amount of the Liabilities at the Valuation Time.
2.2 For purposes of paragraph 1.1(a), the NAV per Acquiring
Fund Share shall be computed at the Valuation Time, using the
valuation procedures referred to in paragraph 2.1.
2.3 All computations pursuant to paragraphs 2.1 and 2.2 shall be
made by the Adviser, in its capacity as the Target s administrator.
3. CLOSING AND EFFECTIVE TIME
3.1 Unless the Funds determine otherwise, the Reorganization,
together with related acts necessary to consummate it ( Closing ),
shall occur at the Acquiring Fund s offices on or about March
19th , 2013 or as soon thereafter as practicable after all
regulatory approvals have been obtained, and all acts taking
place at the Closing shall be deemed to take place simultaneously
as of immediately after the close of business (4:00 p.m., Eastern
Time) on the date thereof ( Effective Time ). If at or
immediately before the Valuation Time (a) the NYSE or another
primary trading market for portfolio securities of either Fund
(each, an Exchange ) is closed to trading or trading thereon is
restricted or (b) trading or the reporting of trading on an
Exchange or elsewhere is disrupted so that, in the Board s
judgment, accurate appraisal of the value of either Fund s net
assets and/or the NAV per Acquiring Fund Share is
impracticable, the date of the Closing (and, therefore, the
Valuation Time and the Effective Time) shall be postponed until
the first business day after the day when that trading has been
fully resumed and that reporting has been restored.
3.2 The Target shall direct the custodian of the Target s assets to
deliver at the Closing a certificate of an authorized officer (
Certificate ) stating and verifying that (a) the Assets it holds will
be transferred to Acquiring Fund at the Effective Time, (b) all
necessary taxes in connection with the delivery of the Assets,
including all applicable federal and state stock transfer stamps, if
any, have been paid or provision for payment has been made,
and (c) the information (including adjusted basis and holding
period, by lot) concerning the Assets, including all portfolio
securities, transferred by Target to Acquiring Fund, as reflected
on Acquiring Fund s books immediately after the Closing, does
or will conform to that information on Target s books
immediately before the Closing.
3.3 The Target shall direct its transfer agent to deliver at the
Closing (a) a Certificate (1) verifying that Target s shareholder
records contain each Shareholder s name and address and the
number of full and fractional outstanding Target Shares the
Shareholder owns at the Effective Time and (2) as to the opening
of accounts in the names of the Shareholders (except
Shareholders in whose names accounts thereon already exist) on
Acquiring Fund s shareholder records and (b) a confirmation, or
other evidence satisfactory to the Target, that the Acquiring Fund
Shares to be credited to Target at the Effective Time have been
credited to Target s account on those records.
4. CONDITIONS PRECEDENT
4.1 The Acquiring Fund s obligation to implement this Plan shall
be subject to satisfaction of the following conditions at or before
(and continuing through) the Effective Time:
(a) At the Effective Time, the Target will have good and
marketable title to the Assets and full right, power, and authority
to sell, assign, transfer, and deliver the Assets hereunder free of
any liens or other encumbrances (except securities that are
subject to securities loans, as referred to in section 851(b)(2),
or are restricted to resale by their terms); and on delivery and
payment for the Assets, the Acquiring Fund will acquire good
and marketable title thereto;
(b) The Target s current Pro/SAI conform in all material
respects to the applicable requirements of the Securities Act of
1933, as amended ( 1933 Act ) and the 1940 Act and the rules
and regulations thereunder and do not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(c) Target is not in material violation of, and the Target s
adoption and performance of this Plan and consummation of the
Reorganization will not conflict with or materially violate,
Delaware law or any provision of Target s Declaration of Trust
or By-Laws or of any agreement, indenture, instrument, contract,
lease, or other undertaking (each, a Target Undertaking ) to
which the Target is a party or by which it is bound, nor will that
adoption, performance, or consummation result in the
acceleration of any obligation, or the imposition of any penalty,
under any Target Undertaking, judgment, decree, order, or award
to which the Target is a party or by which it is bound;
(d) All material contracts and other commitments of or
applicable to Target (other than this Plan and certain investment
contracts, including options, futures, forward contracts, and
swap agreements) will terminate, or provision for discharge of
any liabilities of Target thereunder will be made, at or before the
Effective Time, without either Fund s incurring any liability or
penalty with respect thereto and without diminishing or releasing
any rights the Target may have had with respect to actions taken
or omitted or to be taken by any other party thereto before the
Closing;
(e) No litigation, administrative proceeding, action, or
investigation of or before any court, governmental body, or
arbitrator is presently pending or, to the Target s knowledge,
threatened against the Target or any of its properties or assets
that, if adversely determined, would materially and adversely
affect Target s financial condition or the conduct of its business;
and the Target knows of no facts that might form the basis for
the institution of any such litigation, proceeding, action, or
investigation and is not a party to or subject to the provisions of
any judgment, decree, order, or award of any court,
governmental body, or arbitrator that materially and adversely
affects Target s business or its ability to consummate the
transactions contemplated hereby;
(f) Target s Statement of Assets and Liabilities, Portfolio of
Investments, Statement of Operations, and Statement of Changes
in Net Assets (each, a Statement ) at and for the six-month
period ended June 30, 2012 (in the case of the last Statement, for
that period and the fiscal year ended December 31, 2011), are in
accordance with generally accepted accounting principles
consistently applied in the United States ( GAAP ); and those
Statements present fairly, in all material respects, Target s
financial condition at June 30, 2012, in accordance with GAAP
and the results of its operations and changes in its net assets for
the periods then ended, and there are no known contingent
liabilities of Target required to be reflected on a balance sheet
(including the notes thereto) in accordance with GAAP at such
date that are not disclosed therein;
(g) Since June 30, 2012, there has not been any material
adverse change in Target s financial condition, assets, liabilities,
or business, other than changes occurring in the ordinary course
of business, or any incurrence by Target of indebtedness
maturing more than one year from the date that indebtedness was
incurred; for purposes of this subparagraph, a decline in NAV
per Target Share due to declines in market values of securities
Target holds, the discharge of Target s liabilities, or the
repurchase of Target Shares from its shareholders shall not
constitute a material adverse change;
(h) All issued and outstanding Target Shares are, and at the
Effective Time will be, duly and validly issued and outstanding,
fully paid, and non-assessable by the Target and have been
offered and sold in every state and the District of Columbia in
compliance in all material respects with applicable requirements
of the 1933 Act and state securities laws; all issued and
outstanding Target Shares will, at the Effective Time, be held by
the persons and in the amounts set forth on Target s shareholder
records (as provided in the Certificate to be delivered pursuant to
paragraph 3.3(a)(1)); and Target does not have outstanding any
options, warrants, or other rights to subscribe for or purchase any
Target Shares, nor are there outstanding any securities
convertible into any Target Shares;
(i) All federal, state, and local tax returns, dividend
reporting forms, and other tax-related reports (collectively,
Returns ) of Target required by law to have been filed by the
Effective Time (including any properly and timely filed
extensions of time to file) have been timely filed and are or will
be correct in all material respects, and all federal and other taxes
shown as due or required to be shown as due on those Returns
have been paid or provision has been made for the payment
thereof except for amounts that alone or in the aggregate would
not reasonably be expected to have a material adverse effect; to
the best of the Target s knowledge, no such Return is currently
under audit and no assessment has been asserted with respect to
those Returns; and Target is in compliance in all material respects
with applicable Regulations pertaining to the reporting of
dividends and other distributions on and repurchases of its
shares and to withholding in respect thereof and is not liable for
any material penalties that could be imposed thereunder;
(j) Target is an investment company (as defined in section
368(a)(2)(F)(iii)) and a fund (as defined in section 851(g)(2));
for each taxable year of its operation (including the taxable year
that will end at the Effective Time), Target has met (or for that
year will meet) the requirements of Part I of Subchapter M of
Chapter 1 of Subtitle A of the Code ( Subchapter M ) for
qualification as a regulated investment company ( RIC ) and has
been (or for that year will be) eligible to and has computed (or
for that year will compute) its federal income tax under section
852; and Target has no earnings and profits accumulated in any
taxable year in which the provisions of Subchapter M did not
apply to it;
(k) Target is in the same line of business that Acquiring Fund
is in, for purposes of section 1.368-1(d)(2) of the Regulations,
and did not enter into that line of business as part of the plan of
reorganization; from the time the Board approved the
transactions contemplated hereby ( Approval Time ) through the
Effective Time, Target has invested and will invest its assets in a
manner that ensures its compliance with the foregoing and
paragraph 4.1(j); from the time it commenced operations through
the Effective Time, Target has conducted and will conduct its
historic business (within the meaning of that section) in a
substantially unchanged manner; from the Approval Time
through the Effective Time, Target (1) has not disposed of and/or
acquired, and will not dispose of and/or acquire, any assets (i)
for the purpose of satisfying Acquiring Fund s investment
objective or policies or (ii) for any other reason except in the
ordinary course of its business as a RIC and (2) has not
otherwise changed, and will not otherwise change, its historic
investment policies; and the Target believes, based on its review
of each Fund s investment portfolio, that most of Target s assets
are consistent with Acquiring Fund s investment objective and
policies and that, as a result, all or substantially all of Target s
assets can be transferred to and held by Acquiring Fund;
(l) At the Effective Time, (1) at least 33?% of Target s
portfolio assets will meet Acquiring Fund s investment objective,
strategies, policies, risks, and restrictions (collectively,
Investment Criteria ), (2) Target will not have altered its
portfolio in connection with the Reorganization to meet that
33?% threshold, and (3) Target will not have modified any of its
Investment Criteria as part of the plan of reorganization;
(m) Target incurred the Liabilities, which are associated with
the Assets, in the ordinary course of its business;
(n) Target is not under the jurisdiction of a court in a title
11 or similar case (as defined in section 368(a)(3)(A));
(o) During the five-year period ending at the Effective Time,
neither Target nor any person related (within the meaning of
section 1.368-1(e)(4) of the Regulations ( Related ), without
regard to section 1.368-1(e)(4)(i)(A) thereof) to it will have (1)
acquired Target Shares with consideration other than Acquiring
Fund Shares or Target Shares, except for shares repurchased in
the ordinary course of Target s business or (2) made distributions
with respect to Target Shares except for (i) normal, regular
dividend distributions made pursuant to Target s historic
dividend-paying practice and (ii) other dividends and other
distributions declared and paid to ensure Target s continuing
qualification as a RIC and to avoid the imposition of fund-level
tax; and
(p) Target will distribute all the Acquiring Fund Shares it
receives in the Reorganization to the Shareholders in complete
liquidation in proportion to the number of Target Shares each
Shareholder owns.
4.2 The Target s obligation to implement this Plan shall be
subject to satisfaction of the following conditions at or before
(and continuing through) the Effective Time:
(a) No consideration other than Acquiring Fund Shares (and
Acquiring Fund s assumption of the Liabilities) will be issued in
exchange for the Assets in the Reorganization;
(b) The Acquiring Fund s current Pro/SAI conform in all
material respects to the applicable requirements of the 1933 Act
and the 1940 Act and the rules and regulations thereunder and
do not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(c) Acquiring Fund is not in material violation of, and the
Acquiring Fund s adoption and performance of this Plan and
consummation of the Reorganization will not conflict with or
materially violate, Delaware law or any provision of the
Acquiring Fund s Declaration of Trust or By-Laws or of any
agreement, indenture, instrument, contract, lease, or other
undertaking (each, an Acquiring Fund Undertaking ) to which
the Acquiring Fund is a party or by which it is bound, nor will
that adoption, performance, or consummation result in the
acceleration of any obligation, or the imposition of any penalty,
under any Acquiring Fund Undertaking, judgment, decree, order,
or award to which the Acquiring Fund is a party or by which it is
bound;
(d) No litigation, administrative proceeding, action, or
investigation of or before any court, governmental body, or
arbitrator is presently pending or, to the Acquiring Fund s
knowledge, threatened against the Acquiring Fund or any of its
properties or assets that, if adversely determined, would
materially and adversely affect Acquiring Fund s financial
condition or the conduct of its business; and the Acquiring Fund
knows of no facts that might form the basis for the institution of
any such litigation, proceeding, action, or investigation and is not
a party to or subject to the provisions of any judgment, decree,
order, or award of any court, governmental body, or arbitrator
that materially and adversely affects Acquiring Fund s business
or its ability to consummate the transactions contemplated
hereby;
(e) Acquiring Fund s Statements at and for the six-month
period ended June 30, 2012 (in the case of the Statement of
Changes in Net Assets, for that period and the fiscal year ended
December 31, 2011), are in accordance with GAAP; and those
Statements present fairly, in all material respects, Acquiring Fund
s financial condition at June 30, 2012, in accordance with GAAP
and the results of its operations and changes in its net assets for
the periods then ended, and there are no known contingent
liabilities of Acquiring Fund required to be reflected on a
balance sheet (including the notes thereto) in accordance with
GAAP at such date that are not disclosed therein;
(f) Since June 30, 2012, there has not been any material
adverse change in Acquiring Fund s financial condition, assets,
liabilities, or business, other than changes occurring in the
ordinary course of business, or any incurrence by Acquiring
Fund of indebtedness maturing more than one year from the date
that indebtedness was incurred; for purposes of this
subparagraph, a decline in NAV per Acquiring Fund Share due
to declines in market values of securities Acquiring Fund holds,
the discharge of Acquiring Fund s liabilities, or the repurchase of
Acquiring Fund Shares from its shareholders shall not constitute
a material adverse change;
(g) All issued and outstanding Acquiring Fund Shares are,
and at the Effective Time will be, duly and validly issued and
outstanding, fully paid, and non-assessable by the Acquiring
Fund and have been offered and sold in every state and the
District of Columbia in compliance in all material respects with
applicable requirements of the 1933 Act and state securities
laws; and Acquiring Fund does not have outstanding any
options, warrants, or other rights to subscribe for or purchase any
Acquiring Fund Shares, nor are there outstanding any securities
convertible into any Acquiring Fund Shares;
(h) All Returns of Acquiring Fund required by law to have
been filed by the Effective Time (including any properly and
timely filed extensions of time to file) have been filed and are or
will be correct in all material respects, and all federal and other
taxes shown as due or required to be shown as due on those
Returns have been paid or provision has been made for the
payment thereof except for amounts that alone or in the
aggregate would not reasonably be expected to have a material
adverse effect; to the best of the Acquiring Fund s knowledge,
no such Return is currently under audit and no assessment has
been asserted with respect to those Returns; and Acquiring Fund
is in compliance in all material respects with applicable
Regulations pertaining to the reporting of dividends and other
distributions on and repurchases of its shares and to withholding
in respect thereof and is not liable for any material penalties that
could be imposed thereunder;
(i) Acquiring Fund is an investment company (as defined
in section 368(a)(2)(F)(iii)) and a fund (as defined in section
851(g)(2)); for each taxable year of its operation (including the
taxable year that includes the Effective Time), Acquiring Fund
has met (or for that year will meet) the requirements of
Subchapter M for qualification as a RIC and has been (or for that
year will be) eligible to and has computed (or for that year will
compute) its federal income tax under section 852; Acquiring
Fund intends to continue after the Reorganization to meet all
those requirements and to be eligible to and to so compute its
federal income tax; and Acquiring Fund has no earnings and
profits accumulated in any taxable year in which the provisions
of Subchapter M did not apply to it;
(j) Acquiring Fund is in the same line of business that Target
was in preceding the Reorganization, for purposes of section
1.368-1(d)(2) of the Regulations, and did not enter into that line
of business as part of the plan of reorganization; following the
Reorganization, Acquiring Fund will continue, and has no plan
or intention to change, that line of business; and at the Effective
Time, (1) at least 33?% of Target s portfolio assets will meet
Acquiring Fund s Investment Criteria and (2) Acquiring Fund
will have no plan or intention to change any of its Investment
Criteria after the Reorganization;
(k) Following the Reorganization, Acquiring Fund (1) will
continue Target s historic business (within the meaning of
section 1.368-1(d)(2) of the Regulations) and (2) will use a
significant portion of Target s historic business assets (within
the meaning of section 1.368-1(d)(3) of the Regulations) in a
business; moreover, Acquiring Fund (3) has no plan or intention
to sell or otherwise dispose of any of the Assets, except for
dispositions made in the ordinary course of that business and
dispositions necessary to maintain its status as a RIC, and (4)
expects to retain substantially all the Assets in the same form as
it receives them in the Reorganization, unless and until
subsequent investment circumstances suggest the desirability of
change or it becomes necessary to make dispositions thereof to
maintain that status;
(l) Acquiring Fund has no plan or intention to issue
additional Acquiring Fund Shares following the Reorganization
except for shares issued in the ordinary course of its business as
a non-diversified closed-end investment company; nor will
Acquiring Fund or any person Related to it have any plan or
intention at the Effective Time to acquire or redeem -- either
directly or through any transaction, agreement, or arrangement
with any other person -- any Acquiring Fund Shares issued in the
Reorganization other than repurchases that Acquiring Fund will
make as a non-diversified closed-end investment company;
(m) Before or pursuant to the Reorganization, neither
Acquiring Fund nor any person Related to it will have acquired
Target Shares, directly or through any transaction, agreement, or
arrangement with any other person, with consideration other than
Acquiring Fund Shares;
(n) There is no plan or intention for Acquiring Fund to be
dissolved or merged into another statutory or business trust or a
corporation or any fund thereof (as defined in section
851(g)(2)) following the Reorganization;
(o) Acquiring Fund does not own, nor has it owned during
the five years preceding the Effective Time, directly or
indirectly, any Target Shares;
(p) The Acquiring Fund Shares to be issued and delivered to
Target hereunder will have been duly authorized and issuable in
compliance with the federal securities laws (and appropriate
notices respecting them will have been duly filed under
applicable state securities laws) at the Effective Time and, when
so issued and delivered, will be duly and validly issued and
outstanding Acquiring Fund Shares, fully paid and
non-assessable by the Acquiring Fund; and
(q) If the Reorganization is consummated, Acquiring Fund
will treat each Shareholder that receives Acquiring Fund Shares
in connection with the Reorganization as having made a
minimum initial purchase of those shares for the purpose of
making additional investments therein, regardless of the value of
the shares so received.
4.3 Each Fund s obligation to implement this Plan shall be
subject to satisfaction of the following conditions at or before
(and continuing through) the Effective Time:
(a) No governmental consents, approvals, authorizations, or
filings are required under the 1933 Act, the Securities Exchange
Act of 1934, as amended, or the 1940 Act or state securities laws
for either Fund s adoption and performance of this Plan, except
for consents, approvals, authorizations, and filings that have
been made or received or may be required subsequent to the
Effective Time;
(b) The fair market value of the Acquiring Fund Shares each
Shareholder receives will be equal to the fair market value of its
Target Shares it actually or constructively surrenders in exchange
therefor;
(c) The Target s management (1) is unaware of any plan or
intention of Shareholders to redeem, sell, or otherwise dispose of
(i) any portion of their Target Shares before the Reorganization
to any person Related to either Fund or (ii) any portion of the
Acquiring Fund Shares they receive in the Reorganization to any
person Related to Acquiring Fund, (2) does not anticipate
dispositions of those Acquiring Fund Shares at the time of or
soon after the Reorganization to exceed the usual rate and
frequency of dispositions of shares of Target, (3) expects that
the percentage of shareholder interests, if any, that will be
disposed of as a result, or at the time, of the Reorganization will
be de minimis, and (4) does not anticipate that there will be
extraordinary dispositions of Acquiring Fund Shares immediately
following the Reorganization;
(d) To the best of the Target s management s knowledge,
there is no plan or intention by its shareholders to redeem, sell,
exchange, or otherwise dispose of a number of Target Shares (or
Acquiring Fund Shares to be received in the Reorganization), in
connection with the Reorganization, that would reduce their
ownership of the Target Shares (or the equivalent Acquiring
Fund Shares) to a number of shares that was less than 50% of
the number of the Target Shares at that date;
(e) Target s shareholders will pay their own expenses (such
as fees of personal investment or tax advisers for advice
concerning the Reorganization), if any, incurred in connection
with the Reorganization;
(f) The fair market value and adjusted basis (within the
meaning of section 1011) of the Assets will equal or exceed the
Liabilities to be assumed by Acquiring Fund and those to which
the Assets are subject;
(g) At the Effective Time, there will be no intercompany
indebtedness existing between the Funds that was issued,
acquired, or settled at a discount;
(h) Pursuant to the Reorganization, Target will transfer to
Acquiring Fund, and Acquiring Fund will acquire, at least 90%
of the fair market value of the net assets, and at least 70% of the
fair market value of the gross assets, Target held immediately
before the Reorganization; for the purposes of the foregoing, any
amounts Target uses to pay its Reorganization expenses and to
make repurchases and distributions immediately before the
Reorganization (except (1) repurchases in the ordinary course
and (2) dividends and other distributions declared and paid to
ensure Target s continuing qualification as a RIC and to avoid
the imposition of fund-level tax) will be included as assets it
held immediately before the Reorganization;
(i) Immediately after the Reorganization, Acquiring Fund s
Shareholders will be in control (within the meaning of section
368(a)(2)(H)(i), i.e., as defined in section 304(c)(1)) of
Acquiring Fund;
(j) None of the compensation received by or to be paid to
any Shareholder who or that is a trustee of the Target or an
employee of or service provider to Target will be separate
consideration for, or allocable to, any of that Shareholder s
Target Shares; none of the Acquiring Fund Shares any such
Shareholder receives in the Reorganization will be separate
consideration for, or allocable to, any employment agreement,
investment advisory agreement, or other service agreement; and
the compensation paid to any such Shareholder will be for
services actually rendered and will be commensurate with
amounts paid to third parties bargaining at arm s-length for
similar services;
(k) No expenses incurred by Target or on its behalf in
connection with the Reorganization will be paid or assumed by
Acquiring Fund, the Adviser, or any other third party unless
those expenses are solely and directly related to the
Reorganization (determined in accordance with the guidelines set
forth in Rev. Rul. 73-54, 1973-1 C.B. 187) ( Reorganization
Expenses ), and no cash or property other than Acquiring Fund
Shares will be transferred to Target or any of its shareholders
with the intention that that cash or property be used to pay any
expenses (even Reorganization Expenses) thereof;
(l) The Funds principal reasons for participating in the
Reorganization are bona fide business purposes not related to
taxes;
(m) All necessary filings have been made with the
Commission and state securities authorities, and no order or
directive has been received that any other or further action is
required to permit the Funds to carry out the transactions
contemplated hereby; the Commission shall not have issued an
unfavorable report with respect to the Reorganization under
section 25(b) of the 1940 Act nor instituted any proceedings
seeking to enjoin consummation of the transactions
contemplated hereby under section 25(c) of the 1940 Act; and
all consents, approvals, orders, and permits of federal, state, and
local regulatory authorities (including the Commission and state
securities authorities) the Funds deem necessary to permit
consummation, in all material respects, of the transactions
contemplated hereby have been obtained, except where failure
to obtain same would not involve a risk of a material adverse
effect on either Fund s assets or properties;
(n) At the Effective Time, no action, suit, or other
proceeding will be pending before any court, governmental
agency, or arbitrator in which it is sought to enjoin the
enforcement of, restrain, prohibit, affect the enforceability of, or
obtain damages or other relief in connection with, the
transactions contemplated hereby;
(o) There will be no dissenters to the Reorganization under
the applicable provisions of Delaware law, and Acquiring Fund
will not pay cash in lieu of fractional Acquiring Fund Shares in
connection with the Reorganization; and
(p) The Trust has received an opinion of K&L Gates LLP (
Counsel ) as to the federal income tax consequences mentioned
below ( Tax Opinion ). In rendering the Tax Opinion, Counsel
may assume satisfaction of all the conditions set forth in this
paragraph 4, may treat them as representations and warranties the
Trust made to Counsel that shall survive the Closing, and may
rely as to factual matters, exclusively and without independent
verification, on those representations and warranties and, if
Counsel requests, on representations and warranties made in a
separate letter addressed to Counsel (collectively,
Representations ). The Tax Opinion shall be substantially to
the effect that, based on the facts and assumptions stated therein
and conditioned on the Representations being true and
complete at the Effective Time and consummation of the
Reorganization in accordance with this Plan (without the waiver
or modification of any terms or conditions hereof and without
taking into account any amendment hereof that Counsel has not
approved), for federal income tax purposes:
(1) Target s transfer of the Assets to Acquiring Fund in
exchange solely for Acquiring Fund Shares and Acquiring Fund
s assumption of the Liabilities, followed by Target s distribution
of those shares pro rata to the Shareholders actually or
constructively in exchange for their Target Shares and in
complete liquidation of Target, will qualify as a reorganization
(as defined in section 368(a)(1)(C)), and each Fund will be a
party to a reorganization (within the meaning of section
368(b));
(2) Target will recognize no gain or loss on the transfer of
the Assets to Acquiring Fund in exchange solely for Acquiring
Fund Shares and Acquiring Fund s assumption of the Liabilities
or on the subsequent distribution of those shares to the
Shareholders in exchange for their Target Shares;
(3) Acquiring Fund will recognize no gain or loss on its
receipt of the Assets in exchange solely for Acquiring Fund
Shares and its assumption of the Liabilities;
(4) Acquiring Fund s basis in each Asset will be the same as
Target s basis therein immediately before the Reorganization,
and Acquiring Fund s holding period for each Asset will include
Target s holding period therefor (except where Acquiring Fund s
investment activities have the effect of reducing or eliminating
an Asset s holding period);
(5) A Shareholder will recognize no gain or loss on the
exchange of all its Target Shares solely for Acquiring Fund
Shares pursuant to the Reorganization; and
(6) A Shareholder s aggregate basis in the Acquiring Fund
Shares it receives in the Reorganization will be the same as the
aggregate basis in its Target Shares it actually or constructively
surrenders in exchange for those Acquiring Fund Shares, and its
holding period for those Acquiring Fund Shares will include, in
each instance, its holding period for those Target Shares,
provided the Shareholder holds them as capital assets at the
Effective Time.
Notwithstanding subparagraphs (2) and (4), the Tax Opinion may
state that no opinion is expressed as to the effect of the
Reorganization on the Funds or any Shareholder with respect to
any Asset as to which any unrealized gain or loss is required to
be recognized for federal income tax purposes at the end of a
taxable year (or on the termination or transfer thereof) under a
xxxx-to-market system of accounting.
5. EXPENSES
All fees payable to governmental authorities for the registration
or qualification of the Acquiring Fund Shares distributable
hereunder and all transfer agency costs related to the registration
of the Acquiring Fund Shares on the books of Acquiring Fund,
establishing accounts in the names of contract holders and
allocating shares to those accounts shall be paid by Acquiring
Fund. Target shall bear all other Reorganization Expenses,
including legal and accounting fees and disbursements in
connection with the Reorganization. Notwithstanding the
foregoing, an expense shall be paid by the Target directly
incurring it if and to the extent that the payment thereof by
another person would result in that Target s disqualification as a
RIC or would prevent the Reorganization from qualifying as a
tax-free reorganization.
6. TERMINATION
Either Board may terminate this Plan and abandon the
transactions contemplated hereby at any time before the
Effective Time, if circumstances develop that, in its opinion,
make proceeding with the Reorganization inadvisable for either
Fund.
7. AMENDMENTS
The Boards may amend, modify, or supplement this Plan at any
time in any manner.
8. MISCELLANEOUS
8.1 This Plan shall be governed by, and construed and
interpreted in accordance with, the internal laws of the State of
Delaware, without giving effect to principles of conflict of laws;
provided that, in the case of any conflict between those laws and
the federal securities laws, the latter shall govern.
8.2 Nothing expressed or implied herein is intended or shall be
construed to confer on or give any person, firm, trust, or
corporation other than the Funds and their respective successors
and assigns any rights or remedies under or by reason of this
Plan.
8.3 Notice is hereby given that this instrument is adopted on
behalf of the Funds trustees solely in their capacities as trustees,
and not individually, and that either Fund s obligations under this
instrument are not binding on or enforceable against any of its
trustees, officers or shareholders than the Fund but are only
binding on and enforceable against the respective Funds
property. A Fund, in asserting any rights or claims under this
Plan, shall look only to the other Fund s property in settlement of
those rights or claims and not to the property of any other series
or to those trustees, officers, or shareholders.
8.4 Any term or provision of this Plan that is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of that invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms
and provisions hereof or affecting the validity or enforceability
of any term or provision hereof in any other jurisdiction.
