AGREEMENT AND PLAN OF
REORGANIZATION AND LIQUIDATION
This Agreement and Plan of Reorganization
and Liquidation (Agreement) is made as of this 9th day
of December, 2014 by and between TIFF Investment
Program, Inc., a Maryland corporation (the Fund), and
TIFF Investment Program, a Delaware statutory trust (the
DE Trust) (the Fund and the DE Trust are hereinafter
collectively referred to as the parties).
In consideration of the mutual promises
contained herein, and intending to be legally bound, the
parties hereto agree as follows:
1. Plan of Reorganization.
a. Upon satisfaction of the conditions
precedent described in Section 3 hereof, the Fund, on
behalf of itself and its two separately designated series,
as listed on Exhibit A hereto (collectively, the MD
series), will convey, transfer and deliver to the DE
Trust, on behalf of each of its separately designated
series (collectively, the DE series) (each of which
corresponds to the MD series with the same name) at
the closing provided for in Section 2 (hereinafter
referred to as the Closing) all of the Funds then-
existing assets, including the assets of the MD series
(the Assets), such Assets to become the Assets of the
corresponding DE series. In consideration thereof, the
DE Trust, on behalf of each DE series, agrees at the
Closing (i) to assume and pay when due all obligations
and liabilities of the corresponding MD series (including
such MD series portion of any obligation and liability of
the Fund), existing on or after the Effective Date of the
Reorganization (as defined in Section 2 hereof),
whether absolute, accrued, contingent or otherwise,
including all fees and expenses in connection with this
Agreement, which fees and expenses shall, in turn,
include, without limitation, costs of legal advice,
accounting, printing, mailing, proxy solicitation, and
transfer taxes, if any (collectively, the Liabilities), such
Liabilities to become the obligations and liabilities of
the corresponding DE series; and (ii) to deliver to the
Fund, on behalf of each MD series, in accordance with
paragraph (b) of this Section 1, full and fractional shares
of beneficial interest,
$0.001 par value, of the corresponding DE series, equal
in number to the number of full and fractional shares of
common stock, $0.001 par value, of that MD series
outstanding at the time of calculation of the MD series
net asset values (NAV) on the business day
immediately preceding the Effective Date of the
Reorganization. Each reorganization contemplated
hereby is intended to qualify as a tax-free
reorganization within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended (the
Code). The Fund shall distribute to the MD series
shareholders the shares of the corresponding DE series
in accordance with this Agreement and the resolutions of
the Board of Directors of the Fund (the Board of
Directors) authorizing the transactions contemplated by
this Agreement. The DE Series are newly organized to
acquire the Assets and Liabilities of the corresponding
MD Series and have no assets and have carried on
no business activities prior to the consummation of the
Reorganization described herein.
b. In order to effect the delivery of
shares described in Section l(a)(ii) hereof, the DE Trust
will establish an open account for each shareholder of
the Fund and, on the Effective Date of the
Reorganization, will credit to such account full and
fractional shares of beneficial interest, $0.001 par value,
of the corresponding DE series of the DE Trust equal to
the number of full and fractional shares of beneficial
interest such shareholder holds in the corresponding MD
series of the Fund at the time of calculation of the
Funds NAV on the business day immediately preceding
the Effective Date of the Reorganization. Fractional
shares of the DE Trust will be carried to the third
decimal place. At the time of calculation of the MD
series NAV on the business day immediately preceding
the Effective Date of the Reorganization, the NAV per
share of each DE series of the DE Trust shall be deemed
to be the same as the NAV per share of each
corresponding MD series of the Fund. On the Effective
Date of the Reorganization, each certificate
representing shares of an MD series, if any, will be
deemed to represent the same number of shares of
the corresponding DE series. Simultaneously with such
crediting of the shares of the DE Trust to the
shareholders of record of the Fund, the shares of the
Fund held by such shareholders shall be cancelled.
c. As soon as practicable after the
Effective Date of the Reorganization, the Fund shall take
all necessary steps under Maryland law to effect a
complete dissolution and liquidation of the Fund and the
MD series.
d. The expenses of entering into
and carrying out this Agreement will be borne by the
Fund and the DE Trust to the extent not paid by their
investment advisor.
2. Closing and Effective Date of the
Reorganization.
The Closing shall consist of (i) the
conveyance, transfer and delivery of the Assets to the DE
Trust, on behalf of its DE series, in exchange for the
assumption and payment, when due, by the DE Trust, on
behalf of its DE series, of the Liabilities of the
corresponding MD series; and (ii) the issuance and
delivery of the DE series shares in accordance with
Section l(b), together with related acts necessary to
consummate such transactions. Subject to receipt of all
necessary regulatory approvals and the final adjournment
of the meeting of shareholders of the Fund at which this
Agreement is considered and approved, the Closing shall
occur on such date as the officers of the parties may
mutually agree (Effective Date of the Reorganization).
3. Conditions Precedent.
The obligations of the Fund and the DE
Trust to effectuate the transactions hereunder shall be
subject to the satisfaction of each of the following
conditions:
a. Such authority and orders from
the U.S. Securities and Exchange Commission (the
Commission) and state securities commissions as may
be necessary to permit the parties to carry out the
transactions contemplated by this Agreement shall have
been received;
b. (i) One or more post-effective
amendments to the Funds Registration Statement on
Form N-lA (Registration Statement) under the Securities
Act of 1933, as amended, and the Investment Company
Act of 1940, as amended (the 1940 Act), containing such
amendments to such Registration Statement as are
determined under the supervision of the Board of
Directors to be necessary and appropriate as a result of
this Agreement, shall have been filed with the
Commission; (ii) the DE Trust shall have adopted as its
own such Registration Statement, as so amended; (iii)
the most recent post-effective amendment or
amendments to the Funds Registration Statement shall
have become effective, and no stop order suspending
the effectiveness of the Registration Statement shall
have been issued, and no proceeding for that purpose
shall have been initiated or threatened by the
Commission (other than any such stop order,
proceeding or threatened proceeding which shall have
been withdrawn or terminated); and (iv) an amendment
of the Funds Form N-8A Notification of Registration
filed pursuant to Section 8(a) of the 1940 Act (Form N-
8A) reflecting the change in legal form of the Fund to a
Delaware statutory trust shall have been filed with the
Commission and the DE Trust shall have expressly
adopted such amended Form N-8A as its own for
purposes of the 1940 Act;
c. Each party shall have received an
opinion of Xxxxxxxx Xxxxx Xxxxxxx & Xxxxx, LLP,
Philadelphia, Pennsylvania, to the effect that, assuming
the reorganization contemplated hereby is carried out in
accordance with this Agreement, the laws of the State of
Maryland and the State of Delaware, and in accordance
with customary representations provided by the parties in
a certificate(s) delivered to Xxxxxxxx Xxxxx Xxxxxxx &
Xxxxx, LLP, the reorganization contemplated by this
Agreement qualifies as a reorganization under Section
368 of the Code, and thus will not give rise to the
recognition of income, gain or loss for federal income tax
purposes to the Fund, on behalf of the MD series, or
their shareholders, or the DE Trust, on behalf of the DE
series;
d. The Fund shall have received an
opinion of Xxxxxxxx Xxxxx Xxxxxxx & Xxxxx, LLP,
dated the Effective Date of the Reorganization,
addressed to and in form and substance reasonably
satisfactory to the Fund, to the effect that (i) the DE
Trust is a statutory trust duly formed, in good standing
and having a legal existence under the laws of the State
of Delaware; (ii) this Agreement and the transactions
contemplated thereby and the execution and delivery of
this Agreement have been duly authorized and
approved by all requisite statutory trust action of the DE
Trust and this Agreement is a legal, valid and binding
agreement of the DE Trust in accordance with its terms;
and (iii) the shares of the DE Trust to be issued in the
reorganization, upon issuance thereof in accordance
with this Agreement, will have been validly issued and
fully paid and will be nonassessable by the DE Trust;
e. The DE Trust shall have received
an opinion of Xxxxxxxx Xxxxx Xxxxxxx & Xxxxx, LLP,
dated the Effective Date of the Reorganization,
addressed to and in form and substance reasonably
satisfactory to the DE Trust, to the effect that: (i) the
Fund is duly incorporated, legally existing and in good
standing under the laws of the State of Maryland; and
(ii) this Agreement and the transactions contemplated
hereby and the execution and delivery of this Agreement
have been duly authorized and approved by all requisite
corporate action of the
Fund and this Agreement is a legal, valid and binding
agreement of the Fund in accordance with its terms;
f. The shares of the DE Trust are
eligible for offering to the public in those states of the
United States and jurisdictions in which the shares of
the Fund are currently eligible for offering to the public
so as to permit the issuance and delivery by the DE Trust
of the shares contemplated by this Agreement to be
consummated;
g. This Agreement and the
transactions contemplated hereby shall have been duly
adopted and approved by the appropriate action of the
Board of Directors and the shareholders of the Fund;
Trust, to :
h. T
h
e
F
u
n
d
s
h
all
h
a
v
e
v
ot
e
d,
a
s
s
ol
e
s
h
ar
e
h
ol
d
er
of
e
a
c
h
s
er
ie
s
of
th
e
D
E
(i) Elect as Trustees of the DE
Trust the following individuals: Xxxxx X. Xxxxxxxxx, Xxxxxxx
X. XxXxxxxx, N.P. Narv Xxxxxxxx, and Xxx X. Xxxxxxxx;
(ii) Approve the Investment
Advisory Agreements between TIFF Advisory Services,
Inc. (TAS) and the DE Trust, on behalf of the TIFF Multi-
Asset Fund and the TIFF Short-Term Fund, which are
substantially the same to the then-current Investment
Advisory Agreements between TAS and the Fund;
(iii) Approve the Money
Manager Agreements, as amended, between the Fund,
on behalf of its TIFF Multi-Asset Fund, and the current
money managers for TIFF Multi-Asset Fund, pursuant to
which the TIFF Multi-Asset Fund series of the DE
Trust will engage such money managers on terms
which are substantially identical to the then-current
Money Manager Agreements between the money
managers and the Fund; and
(iv) Approve the DE Trusts
operation of a multi-manager structure in reliance upon
the order received by the Fund, and on which the DE
Trust may rely, from the
U.S. Securities and Exchange Commission exempting the
DE Trust from the requirement that money manager
agreements between the DE Trust and unaffiliated money
managers be approved by shareholders of the DE Trust.
i. The Trustees of the DE Trust shall
have duly adopted and approved this Agreement and the
transactions contemplated hereby, including authorization
of the issuance and delivery by the DE Trust of shares
of the DE Trust on the Effective Date of the
Reorganization and the assumption by the DE Trust of the
Liabilities of the Fund in exchange for the Assets of the
Fund pursuant to the terms and provisions of this
Agreement, and shall have taken the following actions at
a meeting duly called:
(i) Approval of the Investment
Advisory Agreements described in paragraph (h)(ii) ofthis
Section 3 between TAS and the DE Trust;
(ii) Approval of the Money
Manager Agreements, as amended, described in
paragraph (h)(iii) of this Section 3 between the various
money managers and the DE Trust;
(iii) Approval of the Custody
Agreement, as amended, between State Street Bank
and Trust Company and the Fund, whereby the
Custody Agreement will be assumed by the DE Trust;
(iv) Selection of Ernst & Young
LLP as the DE Trusts independent auditors for the fiscal
year ending December 31, 2014;
(v) Approval ofthe Services
Agreement with TAS;
(vi) Approval of the Distribution
Agreement, as amended, between the DE Trust and
Foreside Fund Services, LLC, whereby the Distribution
Agreement will be assumed by the DE Trust;
(vii) Approval of the Transfer
Agent and Services Agreement, as amended, with State
Street Bank and Trust Company, whereby the Transfer
Agent and Services Agreement will be assumed by the
DE Trust;
(viii) Approval of the
Administration Agreement, as amended, with State
Street Bank and Trust Company, whereby the
Administration Agreement will be assumed by the DE
Trust;
(ix) Approval of the Individual
Retirement Account Custodial Services Agreement, as
amended, with State Street Bank and Trust Company,
whereby the Individual Retirement Account Custodial
Services Agreement will be assumed by the DE Trust;
(x) Authorization of the
issuance by the DE Trust of shares of each series of
the DE Trust to the Fund as contemplated by Section
1(a) and for the purpose of enabling the Fund to vote
on the matters referred to in paragraph (h) of this
Section 3 upon delivery of such shares as described
in Section l(a)(ii) and prior to the distribution of such
shares to the MD series shareholders; and
(xi) Submission of the matters
referred to in paragraph (h) of this Section 3 to the
Fund as sole shareholder of each series of the DE Trust.
At any time prior to the Closing, any of
the foregoing conditions may be waived or amended, or
any additional terms and conditions may be fixed, by the
Board of Directors, if, in the judgment of such Board,
such waiver, amendment, term or condition will not
affect in a materially adverse way the benefits intended
to be accorded the shareholders of the Fund under
this Agreement.
4. Dissolution of the Fund.
Promptly following the consummation of
the Closing, the officers of the Fund shall take all steps
necessary under Maryland law to dissolve its corporate
status and the MD series, including filing for record
with the Maryland State Department of Assessments
and Taxation of Articles of Dissolution.
5. Termination.
The Board of Directors may terminate
this Agreement and abandon the reorganization
contemplated hereby, notwithstanding approval thereof
by the shareholders of the Fund, at any time prior to the
Effective Date of the Reorganization if, in the judgment
of such Board, the facts and circumstances make
proceeding with this Agreement inadvisable.
6. Entire Agreement.
This Agreement embodies the entire
agreement between the parties hereto and there are no
agreements, understandings, restrictions or warranties
among the parties hereto other than those set forth
herein or herein provided for.
7. Further Assurances; Other Agreements.
The Fund and the DE Trust shall take such
further action as may be necessary or desirable and
proper to consummate the transactions contemplated
hereby.
8. Counterparts.
This Agreement may be executed in two
or more counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the
same instrument.
9. Governing Law.
This Agreement and the transactions
contemplated hereby shall be governed by, and
construed and enforced in accordance with, the laws of
the State of Delaware.
Remainder of the page left
intentionally blank.
IN WITNESS WHEREOF, the Fund and the DE
Trust have each caused this Agreement and Plan of
Reorganization to be executed on its behalf by its
President or a Vice President and attested by its Secretary
or an Assistant Secretary, all as of the day and year first-
above written.
TIFF
INVESTM
ENT
PROGRA
M, INC.
(a
Maryland
corporati
on)
Attest:
TIFF
INVESTM
ENT
PROGRA
M
(a
Delaware
statutory
trust)
Attest:
EXHIBIT A
T
I
F
F
M
u
l
t
i
-
A
s
s
e
t
F
u
n
d
T
I
F
F
S
h
o
r
t
-
T
e
r
m
F
u
n
d
