Agreement and Plan of Reorganization
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made as of this 24th day of July, 2008, by Tamarack Funds
Trust ("Acquiring Trust"), a Delaware statutory trust, with its
principal place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, on behalf of Access Capital
Community Investment Fund (the "Acquiring Fund"), and Access
Capital Strategies Community Investment Fund, Inc. (the "Target
Fund"), a Maryland corporation, with its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxxx 00000, (the "Target Fund", and together with the
Acquiring Fund, a "Fund" and together, the "Funds"). The
Acquiring Fund has been organized to hold the assets of the
Target Fund and the Acquiring Fund has had no assets (other than
the seed capital required by Section 14(a) of the Investment
Company Act of 1940, as amended ("1940 Act")) and has carried on
no business activities prior to the date first shown above and
will have had no assets (other than the required seed capital)
and will have carried on no business activities prior to the
consummation of this transaction described herein.
This Agreement is intended to be and is adopted as a plan
of reorganization and liquidation within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"). The reorganization ("Reorganization") will consist of
the transfer of all of the assets of the Target Fund to the
Acquiring Fund in exchange solely for voting shares of
beneficial interest ($0.01 par value per share) of the Acquiring
Fund (the "Acquiring Fund Shares"), the assumption by the
Acquiring Fund of all of the stated liabilities of the Target
Fund and the distribution of the Acquiring Fund Shares to the
shareholders of the Target Fund in complete liquidation of the
Target Fund as provided herein, all upon the terms and
conditions hereinafter set forth in this Agreement. All
references in this Agreement to action taken by the Acquiring
Fund shall be deemed to refer to action taken by the Acquiring
Trust on behalf of the Acquiring Fund; and all references in
this Agreement to action taken by the Target Fund shall be
deemed to refer to action taken on behalf of itself.
Notwithstanding anything to the contrary in this Agreement, the
rights and obligations of the Acquiring Fund, and the Acquiring
Trust with respect to the Acquiring Fund, and the Target Fund,
and the Target Fund with respect to itself, are not contingent
upon the satisfaction by the Acquiring Fund or Target Fund, as
applicable, of its obligations under this Agreement.
NOW, THEREFORE, 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 TARGET FUND TO THE ACQUIRING FUND
IN EXCHANGE FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL
TARGET FUND STATED LIABILITIES AND THE LIQUIDATION OF THE TARGET
FUND
1.1. Subject to the terms and conditions set forth herein
and on the basis of the representations and warranties contained
herein, the Target Fund agrees to transfer to the Acquiring Fund
all of its assets as set forth in section 1.2, and the Acquiring
Fund agrees in exchange therefor (i) to deliver to the Target
Fund that number of full and fractional Class I Acquiring Fund
Shares corresponding to the Target Fund shares as of the time
and date set forth in section 2.1; and (ii) to assume all of the
Stated Liabilities of the Target Fund with respect to its
shares, as set forth in Section 1.2. All Acquiring Fund Shares
delivered to the Target Fund shall be delivered at net asset
value without a sales load, commission or other similar fee
being imposed. Such transactions shall take place at the closing
provided for in section 3.1 (the "Closing").
1.2. The assets of the Target Fund to be acquired by the
Acquiring Fund (the "Assets") shall consist of all assets,
including, without limitation, all cash, cash equivalents,
securities, commodities and futures interests and dividends or
interest or other receivables that are owned by the Target Fund
and any deferred or prepaid expenses shown as an asset on the
books of the Target Fund on the Valuation Time (as defined in
Section 2.1). The liabilities of the Target Fund to be assumed
by the Acquiring Fund (the "Stated Liabilities") shall consist
of all known liabilities of the Target Fund that are included in
the calculation of the Target Fund's net asset value at the
Valuation Time.
1.3. The Target Fund will distribute to its shareholders of
record (the "Target Fund Shareholders"), determined as of the
Valuation Time (as defined in section 2.1), on a pro rata basis,
the corresponding Acquiring Fund Shares received by the Target
Fund pursuant to section 1.1 and will completely liquidate. Such
distribution and liquidation will be accomplished with respect
to the Target Fund by the transfer of the Acquiring Fund Shares
then credited to the account of the Target Fund on the books of
the Acquiring Fund to open accounts on the share records of the
Acquiring Fund in the names of the Target Fund Shareholders.
The Acquiring Fund shall have no obligation to inquire as to the
validity, propriety or correctness of such records, but shall
assume that such transaction is valid, proper and correct. The
aggregate net asset value of the Acquiring Fund Shares to be so
credited to the Target Fund Shareholders shall be equal to the
aggregate net asset value of the Target Fund shares owned by
such shareholders on the Closing Date. All issued and
outstanding shares of the Target Fund will simultaneously be
cancelled on the books of the Target Fund. The Acquiring Fund
will not issue certificates representing Acquiring Fund Shares
issued in connection with such exchanges.
1.4. Ownership of Acquiring Fund Shares of the Acquiring
Fund will be shown on its books.
1.5. Any reporting responsibility of the Target Fund
including, without limitation, the responsibility for filing of
regulatory reports, tax returns, or other documents with the
Securities and Exchange Commission (the "Commission"), any state
securities commission, and any federal, state or local tax
authorities or any other relevant regulatory authority, is and
shall remain the responsibility of the Target Fund.
1.6. ll books and records of the Target Fund, including
all books and records required to be maintained under the 1940
Act, and the rules and regulations thereunder, shall be
available to the Acquiring Fund from and after the Closing Date
and shall be turned over to the Acquiring Fund as soon as
practicable following the Closing Date.
2. VALUATION
2.1. The value of the Assets shall be computed as of the
date and time ("Valuation Time") that is the close of regular
trading on the New York Stock Exchange (the "NYSE") on the
Closing Date (as defined in section 3.1) after the declaration
and payment of any dividends and/or other distributions on the
Closing Date, using such valuation procedures as are disclosed
in the then-current prospectus and/or statement of additional
information for the Acquiring Fund and as have been approved by
its Board of Trustees, copies of which have been delivered to
the Target Fund.
2.2. All computations of value hereunder shall be made by
or under the direction of each Fund's respective accounting
agent, if applicable, in accordance with its regular practice
and the requirements of the 1940 Act, and shall be subject to
confirmation by each Fund's respective independent accountants
upon the reasonable request of the other Fund.
3. CLOSING AND CLOSING DATE
3.1. The Closing of the transactions contemplated by this
Agreement shall be July 28, 2008, or such later date as the
parties may agree in writing (the "Closing Date"). All acts
taking place at the Closing shall be deemed to take place
immediately after 4:00 p.m., Eastern time, on the Closing Date,
unless otherwise agreed to by the parties. The Closing shall be
held at the offices of the Dechert LLP, 00 Xxxxxxxxxxx Xxxxx,
Xxx Xxxx, XX 00000, or at such other place and time as the
parties may agree.
3.2. The Target Fund shall deliver to the Acquiring Fund on
the Closing Date a schedule of Assets.
3.3. The Acquiring Fund shall direct Xxxxx Fargo Bank
Minnesota, N.A., as custodian for the Acquiring Fund, to deliver
at the Closing a certificate of an authorized officer stating
that (a) the Assets shall have been delivered in proper form to
Xxxxx Fargo Bank Minnesota, N.A., as custodian for the Acquiring
Fund, prior to or on the Closing Date and (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. The
Target Fund's portfolio securities represented by a certificate
or other written instrument shall be presented by the custodian
for the Target Fund to the custodian for the Acquiring Fund for
examination no later than five business days preceding the
Closing Date and transferred and delivered by the Target Fund as
of the Closing Date by the Target Fund for the account of the
Acquiring Fund duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof. The Target
Fund's portfolio securities and instruments deposited with a
securities depository, as defined in Rule 17f-4 under the 1940
Act, shall be delivered as of the Closing Date by book entry in
accordance with the customary practices of such depositories and
the custodian for the Acquiring Fund. The cash to be transferred
by the Target Fund shall be delivered by wire transfer of
federal funds on the Closing Date.
3.4. The Target Fund shall direct UMBFS ("Transfer Agent"),
as transfer agent for the Target Fund, to deliver at the Closing
a certificate of an authorized officer stating that its records
contain the names and addresses of the Target Fund Shareholders
and the number and percentage ownership (to three decimal
places) of outstanding Target Fund shares, owned by each such
shareholder immediately prior to the Closing. The Acquiring Fund
shall issue and deliver a confirmation evidencing the Acquiring
Fund Shares to be credited on the Closing Date to the Target
Fund or provide evidence satisfactory to the Target Fund that
the Acquiring Fund Shares have been credited to the Target
Fund's account on the books of the Acquiring Fund. At the
Closing, each party shall deliver to the other such bills of
sale, checks, assignments, share certificates, if any, receipts
or other documents as such other party or its counsel may
reasonably request to effect the transactions contemplated by
this Agreement.
3.5. In the event that immediately prior to the Valuation
Time (a) the NYSE or another primary trading market for
portfolio securities of the Target Fund or the Acquiring Fund
shall be closed to trading or trading thereupon shall be
restricted, or (b) trading or the reporting of trading thereupon
or elsewhere shall be disrupted so that, in the judgment of the
Board members of either party to this Agreement, accurate
appraisal of the value of the net assets with respect to the
Acquiring Fund Shares or the shares of Target 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.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to the Acquiring
Fund prior to the date of this Agreement in a written instrument
executed by an appropriate officer of Target Fund, Target Fund,
represents and warrants to the Acquiring Fund as follows:
(a) The Target Fund is a corporation duly organized
and validly existing under the laws of the State of
Maryland, with power under Target Fund's Articles of
Incorporation, as amended and supplemented from time to
time, to own all of its Assets and to carry on its business
as it is now being conducted and, subject to approval of
shareholders of the Target Fund, to carry out this
Agreement. The Target Fund is qualified to do business in
all jurisdictions in which it is required to be so
qualified, except jurisdictions in which the failure to so
qualify would not reasonably be expected to have a material
adverse effect on the Target Fund. The Target Fund has all
material federal, state and local authorizations necessary
to own all of its Assets and to carry on its business as
now being conducted;
(b) The Target Fund is registered with the Commission
as a continuously offered, closed-end interval fund under
the 1940 Act, and such registration is in full force and
effect and the Target Fund is in compliance in all material
respects with the 1940 Act and the rules and regulations
thereunder;
(c) No consent, approval, authorization, or order of
any court or governmental authority is required for the
consummation by the Target Fund of the transactions
contemplated herein, except such as have been obtained
under the Securities Act of 1933, as amended (the "1933
Act"), the Securities Exchange Act of 1934, as amended (the
"1934 Act") and the 1940 Act and such as may be required by
state securities laws;
(d) The Target Fund is not, and the execution,
delivery and performance of this Agreement by the Target
Fund, will not, (i) result in a material violation of
Maryland law or its Articles of Incorporation or By-Laws;
(ii) result in a material violation or breach of, or
constitute a default under, any material agreement,
indenture, instrument, contract, lease or other undertaking
to which the Target Fund is a party or by which it is
bound, or the acceleration of any obligation, or the
imposition of any penalty, under any agreement, indenture,
instrument, contract, lease, judgment or decree to which
the Target Fund is a party or by which it is bound; or
(iii) result in the creation or imposition of any lien,
charge or encumbrance or any property or assets of the
Target Fund;
(e) All material contracts or other commitments of
the Target Fund (other than this Agreement and any
contracts listed on Schedule B) will terminate without
liability to the Target Fund on or prior to the Closing
Date. Each contract listed on Schedule B is a valid,
binding and enforceable obligation of each party thereto
and the assignment by the Target Fund to the corresponding
Acquiring Fund of each such contract will not result in the
termination of such contract, any breach or default
thereunder or the imposition of any penalty thereunder;
(f) No material litigation or administrative
proceeding or investigation of or before any court or
governmental body is presently pending or to its knowledge
threatened against the Target Fund or any properties or
assets held by it. The Target Fund knows of no facts that
might form the basis for the institution of such
proceedings that would materially and adversely affect its
business and 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
herein contemplated;
(g) The Statement of Assets and Liabilities,
Statement of Operations, Statement of Changes in Net Assets
and Financial Highlights of the Target Fund at and for the
fiscal year ended May 31, 2007, have been audited by
Deloitte and Touche LLP, and are in accordance with GAAP
consistently applied, and such statements (a copy of each
of which has been furnished to Acquiring Fund) present
fairly, in all material respects, the financial position of
the Target Fund as of such date in accordance with GAAP,
and there are no known contingent liabilities of the Target
Fund required to be reflected on a balance sheet (including
the notes thereto) in accordance with GAAP as of such date
not disclosed therein;
(h) The Statement of Assets and Liabilities,
Statement of Operations, Statement of Changes in Net Assets
and Financial Highlights of the Target Fund at November 30,
2007, which are unaudited, are in accordance with GAAP
consistently applied, and such statements (a copy of each
of which has been or will be furnished to Acquiring Fund)
present fairly, in all material respects, the financial
position of the Target Fund as of such date in accordance
with GAAP, and there are no known contingent liabilities of
the Target Fund required to be reflected on a balance sheet
(including the notes thereto) in accordance with GAAP as of
such date not disclosed therein;
(i) The historical performance information of the
Target Fund contained in the registration statements,
periodic shareholder reports, advertisements or literature
of the Target Fund, presents fairly, in all material
respects, that information as of such date in accordance
with GAAP and related accounting pronouncements, and
applicable rules and regulations, and was calculated, in
all material respects, in accordance with applicable rules
and regulations, and the records supporting such
calculations that are maintained by the Target Fund are
complete, true and correct;
(j) At the date hereof and at the Closing Date, all
federal and other tax returns and reports of the Target
Fund required by law to have been filed by such dates
(including any extensions) shall 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 said returns and reports shall have been paid or
provision shall have been made for the payment thereof,
and, to the best of the Target Fund's knowledge, no such
return is currently under audit and no assessment has been
asserted with respect to such returns;
(k) For each taxable year of its operation (including
the taxable year that includes the Closing Date), the
Target Fund has met the requirements of Subchapter M of the
Code for qualification and treatment as a regulated
investment company and has elected to be treated as such,
and has been eligible to and has computed its federal
income tax under Section 852 of the Code;
(l) All issued and outstanding shares of the Target
Fund (i) have been offered and sold in every state and the
District of Columbia in compliance in all material respects
with applicable registration requirements of the 1933 Act
and state securities laws, (ii) are, and on the Closing
Date will be, duly and validly issued and outstanding,
fully paid and non-assessable and not subject to preemptive
or dissenter's rights, and (iii) will be held at the time
of the Closing by the persons and in the amounts set forth
in the records of the Transfer Agent, as provided in
section 3.4. The Target Fund does not have outstanding any
options, warrants or other rights to subscribe for or
purchase any of the Target Fund shares, nor is there
outstanding any security convertible into any of the Target
Fund shares;
(m) At the Closing Date, the Target Fund will have
good and marketable title to the Assets to be transferred
to the corresponding Acquiring Fund pursuant to section 1.2
and full right, power and authority to sell, assign,
transfer and deliver such Assets hereunder free of any
liens or other encumbrances, and upon delivery and payment
for such Assets, such Acquiring Fund will acquire good and
marketable title thereto, subject to no restrictions on the
full transfer thereof, including such restrictions as might
arise under the 1933 Act and the 1940 Act;
(n) The execution, delivery and performance of this
Agreement will have been duly authorized prior to the
Closing Date by all necessary action on the part of the
Board members of the Target Fund, (including the
determinations required by Rule 17a-8(a) under the 1940
Act), and, subject to approval by Target Fund Shareholders,
this Agreement constitutes a valid and binding obligation
of the Target Fund, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and other laws relating to or affecting creditors' rights
and to general equity principles;
(o) The information to be furnished by the Target
Fund for use in applications for orders, registration
statements or proxy materials or for use in any other
document filed or to be filed with any federal, state or
local regulatory authority (including the Financial
Industry Regulatory Authority ("FINRA")), which may be
necessary in connection with the transactions contemplated
hereby, shall be accurate and complete in all material
respects and shall comply in all material respects with
federal securities and other laws and regulations
applicable thereto;
(p) At the Closing Date, the then current prospectus
and statement of additional information of the Target Fund
conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules
and regulations of the Commission thereunder 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 materially
misleading; and
(q) The Proxy Statement (as defined in section 5.7),
insofar as it relates to the Target Fund, will, on the
effective date of the registration statement and on the
Closing Date, (i) comply in all material respects with the
provisions and Regulations of the 1933 Act, 1934 Act and
1940 Act, as applicable, and (ii) not contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which such statements are made, not materially misleading;
provided, however, that the representations and warranties
in this section shall not apply to statements in or
omissions from the Proxy Statement and the registration
statement made in reliance upon and in conformity with
information that was furnished or should have been
furnished by Acquiring Fund for use therein.
4.2. Except as has been fully disclosed to the Target Fund
prior to the date of this Agreement in a written instrument
executed by an appropriate officer of the Acquiring Trust, the
Acquiring Trust, on behalf of the Acquiring Fund, represents and
warrants to the Target Fund as follows:
(a) The Acquiring Fund is duly organized as a series
of the Acquiring Trust, which is a statutory trust duly
organized and validly existing under the laws of the State
of Delaware with the power under the Acquiring Trust's
Declaration of Trust to own all of its properties and
assets and to carry on its business as contemplated by this
Agreement;
(b) The Acquiring Trust is registered with the
Commission as an open-end management investment company
under the 1940 Act, and such registration is in full force
and effect and Acquiring Fund is in compliance in all
material respects with the 1940 Act and the rules and
regulations thereunder, and the registration of Acquiring
Fund Shares will be in full force and effect on the Closing
Date;
(c) No consent, approval, authorization, or order of
any court or governmental authority is required for the
consummation by Acquiring Fund of the transactions
contemplated herein, except such as have been obtained
under the 1933 Act, the 1934 Act and the 1940 Act and such
as may be required by state securities laws;
(d) The Acquiring Fund is not, and the execution,
delivery and performance of this Agreement by the Acquiring
Fund will not, (i) result in a material violation of
Delaware law or its then current Declaration of Trust or
By-Laws; (ii) result in a material violation or breach of
or constitute a default under, any material agreement,
indenture, instrument, contract, lease or other undertaking
to which the Acquiring Trust, on behalf of the Acquiring
Fund, is a party or by which it is bound, or (ii) the
acceleration of any obligation, or the imposition of any
penalty, under any agreement, indenture, instrument,
contract, lease, judgment or decree to which the Acquiring
Trust, on behalf of the Acquiring Fund, is a party or by
which it is bound; nor (iii) result in the creation or
imposition of any lien, charge or encumbrance on any
property or assets of the Acquiring Fund;
(e) No material litigation or administrative
proceeding or investigation of or before any court or
governmental body is presently pending or to its knowledge
threatened against the Acquiring Fund or any properties or
assets held by it. The Acquiring Fund knows of no facts
that might form the basis for the institution of such
proceedings that would materially and adversely affect its
business and 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
herein contemplated;
(f) Acquiring Fund will meet the requirements of
Subchapter M of the Code for qualification as a regulated
investment company for its first taxable year that ends
after the Closing Date and will be eligible to, and will
for such taxable year, compute its federal income tax under
Section 852 of the Code;
(g) Upon consummation of the Reorganization, all
issued and outstanding Acquiring Fund Shares will be duly
and validly issued and outstanding, fully paid and non-
assessable by Acquiring Trust and will have been offered
and sold in every state, territory and the District of
Columbia in compliance in all material respects with
applicable registration requirements of the 1933 Act and
other securities laws. The Acquiring Fund does not have
outstanding any options, warrants or other rights to
subscribe for or purchase any Acquiring Fund Shares, nor is
there outstanding any security convertible into any
Acquiring Fund Shares;
(h) The execution, delivery and performance of this
Agreement will have been duly authorized prior to the
Closing Date by all necessary action on the part of the
Board members of the Acquiring Trust (including the
determinations required by Rule 17a-8(a) under the 1940
Act), and this Agreement will constitute a valid and
binding obligation of the Acquiring Trust, on behalf of the
Acquiring Fund, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other
laws relating to or affecting creditors' rights and to
general equity principles;
(i) The information to be furnished by the Acquiring
Fund for use in applications for orders, registration
statements or proxy materials or for use in any other
document filed or to be filed with any federal, state or
local regulatory authority (including FINRA), which may be
necessary in connection with the transactions contemplated
hereby, shall be accurate and complete in all material
respects and shall comply in all material respects with
federal securities and other laws and regulations
applicable thereto;
(j) At the Closing Date, the then current prospectus
and statement of additional information of the Acquiring
Fund conform in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules
and regulations of the Commission 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 materially
misleading; and
(k) Prior to the Closing Date, the Acquiring Fund
will have carried on no business activity and will have had
no assets or liabilities other than the seed capital
required by Section 14(a) of the 1940 Act.
5. COVENANTS OF ACQUIRING FUND OR TARGET FUND OR BOTH
5.1. The Target Fund covenants to operate its business in
the ordinary course between the date hereof and the Closing
Date, it being understood that (a) such ordinary course of
business will include (i) the declaration and payment of
customary dividends and other distributions and (ii) such
changes as are contemplated by the Target Fund's normal
operations.
5.2. The Target Fund covenants that, upon reasonable
notice, the Acquiring Fund's officers and agents shall have
reasonable access to the Target Fund's books and records
necessary to maintain current knowledge of the Target Fund and
to ensure that the representations and warranties made by the
Target Fund are accurate.
5.3. The Target Fund covenants to call a meeting of Target
Fund Shareholders entitled to vote thereon to consider and act
upon this Agreement and to take all other reasonable action
necessary to obtain approval of the transactions contemplated
herein. Such meeting shall be scheduled for no later than June
16, 2008.
5.4. The Target Fund covenants that the Acquiring Fund
Shares to be issued hereunder are not being acquired for the
purpose of making any distribution thereof other than in
accordance with the terms of this Agreement.
5.5. The Target Fund covenants that it will assist the
Acquiring Fund in obtaining such information as the Acquiring
Fund reasonably requests concerning the beneficial ownership of
the Target Fund shares.
5.6. The Acquiring Trust and Target Fund, covenants that,
subject to the provisions of this Agreement, it will take, or
cause to be taken, all actions, and do or cause to be done, all
things reasonably necessary, proper and/or advisable to
consummate and make effective the transactions contemplated by
this Agreement.
5.7. The Target Fund covenants that it will prepare, file
with the Commission, and deliver to the Acquired Fund
shareholders in connection with such meeting, a proxy statement
on Schedule 14A ("Proxy Statement") in compliance in all
material respects with the provisions of the 1934 Act and the
rules and regulations thereunder.
5.8. The Acquiring Fund covenants that it will provide the
Target Fund with information reasonably necessary for the
preparation of the Proxy Statement in compliance with the 1934
Act and 1940 Act and the rules and regulations thereunder.
5.9. The Target Fund covenants that it will, from time to
time, as and when reasonably requested by the Acquiring Fund,
execute and deliver or cause to be executed and delivered all
such assignments and other instruments, and will take or cause
to be taken such further action as the Acquiring Fund may
reasonably deem necessary or desirable in order to vest in and
confirm the Acquiring Fund's title to and possession of all the
Assets and otherwise to carry out the intent and purpose of this
Agreement.
5.10. The Acquiring Trust covenants to use all
reasonable efforts to obtain the approvals and authorizations
required by the 1933 Act and 1940 Act, and such of the state
securities laws as it deems appropriate in order to continue its
operations after the Closing Date and to consummate the
transactions contemplated herein; provided, however, that the
Acquiring Trust may take such actions it reasonably deems
advisable after the Closing Date as circumstances change.
5.11. Each Fund shall use its reasonable best efforts
to fulfill or obtain the fulfillment of the conditions precedent
to effect the transactions contemplated by this Agreement as
promptly as practicable.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF TARGET FUND
With respect to the Reorganization, the obligations of the
Target Fund to consummate 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, the following further conditions:
6.1. All representations and warranties of Acquiring Trust,
on behalf of the Acquiring Fund, contained in this Agreement
shall be true and correct in all material respects as of the
date hereof and, except as they may be affected by the
transactions contemplated by this Agreement, as of the Closing
Date, with the same force and effect as if made on and as of the
Closing Date.
6.2. The Acquiring Fund shall have delivered to the Target
Fund on the Closing Date a certificate executed in its name by
its President or a Vice President, in a form reasonably
satisfactory to the Target Fund, and dated as of the Closing
Date, to the effect that the representations and warranties of
the Acquiring Trust with respect to the Acquiring Fund made in
this Agreement are true and correct on and as of the Closing
Date, except as they may be affected by the transactions
contemplated by this Agreement, and as to such other matters as
the Target Fund shall reasonably request.
6.3. The Acquiring Fund shall have performed all of the
covenants and complied with all of the provisions required by
this Agreement to be performed or complied with by the Acquiring
Fund on or before the Closing Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIRING FUND
With respect to the Reorganization, the obligations of the
Acquiring Fund to consummate the transactions provided for
herein shall be subject, at its election, to the performance by
the Target Fund of all of the obligations to be performed by it
hereunder on or before the Closing Date and, in addition
thereto, the following further conditions:
7.1. All representations and warranties of the Target Fund
contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement,
as of the Closing Date, with the same force and effect as if
made on and as of the Closing Date.
7.2. The Target Fund shall have delivered to the Acquiring
Fund a statement of the Target Fund's Assets and liabilities as
of the Closing Date, certified by the Treasurer of the Target
Fund.
7.3. The Target Fund shall have delivered to the Acquiring
Fund on the Closing Date a certificate executed in its name by
its President or a Vice President, in a form reasonably
satisfactory to the Acquiring Fund, and dated as of the Closing
Date, to the effect that the representations and warranties of
the Target Fund made in this Agreement are true and correct on
and as of the Closing Date, except as they may be affected by
the transactions contemplated by this Agreement, and as to such
other matters as the Acquiring Fund shall reasonably request.
7.4. The Target Fund shall have performed all of the
covenants and complied with all of the provisions required by
this Agreement to be performed or complied with by the Target
Fund on or before the Closing Date.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIRING
FUND AND TARGET FUND
If any of the conditions set forth below have not been met
on or before the Closing Date with respect to the Target Fund or
Acquiring Fund, the other party to this Agreement shall, at its
option, not be required to consummate the transactions
contemplated by this Agreement:
8.1. This Agreement and the transactions contemplated
herein, with respect to the Target Fund, shall have been
approved by the requisite vote of the holders of the outstanding
shares of the Target Fund in accordance with the provisions of
the Target Fund's Articles of Incorporation and By-Laws,
applicable Maryland law and the 1940 Act, and certified copies
of the resolutions evidencing such approval shall have been
delivered to Acquiring Fund. Notwithstanding anything herein to
the contrary, neither the Acquiring Fund nor the Target Fund may
waive the conditions set forth in this section 8.1.
8.2. On the Closing Date, no action, suit or other
proceeding shall be pending or to its knowledge threatened
before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain material damages or other relief
in connection with, this Agreement or the transactions
contemplated herein.
8.3. All consents of other parties and all other consents,
orders and permits of federal, state and local regulatory
authorities deemed necessary by the Acquiring Fund or the Target
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 Target Fund,
provided that either party hereto may for itself waive any of
such conditions.
8.4. The Registration Statement with respect to the
Acquiring Fund Shares shall have become effective under the 1933
Act and no stop orders suspending the effectiveness thereof
shall have been issued and, to the best knowledge of the parties
hereto, no investigation or proceeding for that purpose shall
have been instituted or be pending, threatened or contemplated
under the 0000 Xxx.
8.5. With respect to the Reorganization, the parties shall
have received an opinion of Dechert LLP addressed to the
Acquiring Fund and Target Fund, in a form reasonably
satisfactory to each such party, substantially to the effect
that, based upon certain facts, assumptions and representations
of the parties, for federal income tax purposes: (i) the
transfer to the Acquiring Fund of all of the assets of the
Target Fund in exchange solely for Acquiring Fund Shares and the
assumption by the Acquiring Fund of all of the stated
liabilities of the Target Fund, followed by the distribution of
such shares to the Target Fund Shareholders in exchange for
their shares of the Target Fund in complete liquidation of the
Target Fund, will constitute a "reorganization" within the
meaning of Section 368(a)(1) of the Code, and such Acquiring
Fund and the Target Fund will each be "a party to a
reorganization" within the meaning of Section 368(b) of the
Code; (ii) no gain or loss will be recognized by the Target Fund
upon the transfer of all of its assets to such Acquiring Fund in
exchange solely for Acquiring Fund Shares and the assumption by
the Acquiring Fund of all of the stated liabilities of the
Target Fund; (iii) the basis of the assets of the Target Fund in
the hands of such Acquiring Fund will be the same as the basis
of such assets of the Target Fund immediately prior to the
transfer; (iv) the holding period of the assets of the Target
Fund in the hands of the Acquiring Fund will include the period
during which such assets were held by the Target Fund; (v) no
gain or loss will be recognized by the Acquiring Fund upon the
receipt of the assets of the Target Fund in exchange for the
Acquiring Fund Shares and the assumption by the Acquiring Fund
of all of the stated liabilities of the Target Fund; (vi) no
gain or loss will be recognized by the Target Fund Shareholders
upon the receipt of the Acquiring Fund Shares solely in exchange
for their shares of the Target Fund as part of the transaction;
(vii) the basis of the Acquiring Fund Shares received by the
Target Fund Shareholders will be the same as the basis of the
shares of the Target Fund exchanged therefor; and (viii) the
holding period of the Acquiring Fund Shares received by Target
Fund Shareholders will include the holding period during which
the shares of the Target Fund exchanged therefor were held,
provided that at the time of the exchange the shares of the
Target Fund were held as capital assets in the hands of the
Target Fund Shareholders. The delivery of such opinion is
conditioned upon receipt by Dechert LLP of representations it
shall request of the Acquiring Trust and the Target Fund.
Notwithstanding anything herein to the contrary, neither the
Acquiring Fund nor the Target Fund may waive the condition set
forth in this section 8.5. No opinion will be expressed by
Dechert LLP, however, as to whether any gain or loss will be
recognized by the Target Fund or Acquiring Fund in connection
with any dispositions of assets by such Fund prior to or
following its Reorganization.
8.6. The Target Fund and the Acquiring Fund shall have
agreed on the number of full and fractional Acquiring Fund
Shares to be issued in connection with the Reorganization after
such number has been calculated in accordance with paragraph
1.1.
9. INDEMNIFICATION
9.1. The Acquiring Trust, on behalf of the Acquiring Fund,
agrees to indemnify and hold harmless the Target Fund and the
Target Fund's Board members and officers from and against any
and all losses, claims, damages, liabilities or expenses
(including, without limitation, the payment of reasonable legal
fees and reasonable costs of investigation) to which jointly and
severally, the Target Fund or any of its Board members or
officers may become subject, insofar as any such loss, claim,
damage, liability or expense (or actions with respect thereto)
arises out of or is based on any breach by such Acquiring Fund
of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
9.2. The Target Fund agrees to indemnify and hold harmless
the Acquiring Fund and each of the Acquiring Trust's Board
members and officers from and against any and all losses,
claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable
costs of investigation) to which jointly and severally, the
Acquiring Fund or any of its Board members or officers may
become subject, insofar as any such loss, claim, damage,
liability or expense (or actions with respect thereto) arises
out of or is based on any breach by the Target Fund of any of
its representations, warranties, covenants or agreements set
forth in this Agreement.
10. FEES AND EXPENSES
10.1. The Acquiring Trust, on behalf of the Acquiring
Fund, and the Target Fund, represents and warrants to the other
that it has no obligations to pay any brokers or finders fees in
connection with the transactions provided for herein.
10.2 Voyageur Asset Management Inc. and Access Capital
Strategies LLC will bear all the expenses associated with the
Reorganization, except that Acquiring Fund (and indirectly
Target Fund shareholders as Acquiring Fund shareholders after
the Reorganization) will bear all organizational expenses and
SEC registration fees of the Acquiring Fund. Any such expenses
which are so borne by Voyageur Asset Management Inc. and Access
Capital Strategies LLC will be solely and directly related to
the Reorganization within the meaning of Revenue Ruling 73-54,
1973-1 C.B. 187. Target Fund Shareholders will pay their own
expenses, if any, incurred in connection with the
Reorganization.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. Each Fund agrees that no party has made any
representation, warranty or covenant not set forth herein and
that this Agreement constitutes the entire agreement between the
parties.
11.2. Except as specified in the next sentence set
forth in this section 11.2, the representations, warranties and
covenants contained in this Agreement or in any document
delivered pursuant hereto or in connection herewith shall not
survive the consummation of the transactions contemplated
hereunder. The covenants to be performed after the Closing and
the obligations of the Acquiring Fund and Target Fund in
sections 9.1 and 9.2 shall survive the Closing.
12. TERMINATION
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned by any party as it relates
to the transactions applicable to such party (i) by the mutual
agreement of the parties, or (ii) by either party if the Closing
shall not have occurred on or before July 28, 2008, unless such
date is extended by mutual agreement of the parties, or (iii) by
either party if the other party shall have materially breached
its obligations under this Agreement or made a material and
intentional misrepresentation herein or in connection herewith;
or (iv) upon the resolution of either of the Board of Trustees
of Acquiring Trust or the Board of Directors of Target Fund, at
any time prior to the Closing Date, if circumstances should
develop that, in the opinion of that Board, make proceeding with
the Agreement inadvisable with respect to Acquiring Trust or
Target Fund, respectively. In the event of any such termination,
this Agreement shall become void and there shall be no liability
hereunder on the part of any party or their respective Board
members or officers, except for any such material breach or
intentional misrepresentation, as to each of which all remedies
at law or in equity of the party adversely affected shall
survive.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in
such manner as may be mutually agreed upon in writing by any
authorized officer of Target Fund and any authorized officer of
Acquiring Trust; provided, however, that following the meeting
of Target Fund Shareholders called by Target Fund pursuant to
section 5.3 of this Agreement, no such amendment may have the
effect of changing the provisions for determining the number of
Acquiring Fund Shares to be issued to Target Fund Shareholders
under this Agreement to the detriment of such shareholders
without their further approval.
14. NOTICES
Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be in
writing and shall be deemed duly given if delivered by hand
(including by Federal Express or similar express courier) or
transmitted by facsimile or three days after being mailed by
prepaid registered or certified mail, return receipt requested,
addressed to the Target Fund, 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, with a copy to WilmerHale, 0000 Xxxxxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx X.
Xxxxxxxx, Esq., or to the Acquiring Fund, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, with a copy to
Dechert LLP, 00 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxx X. Xxxx, Esq, or to any other address that Target
Funds or Acquiring Fund shall have last designated by notice to
the other party.
15. HEADINGS; COUNTERPARTS; ASSIGNMENT; LIMITATION OF LIABILITY
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 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 the shareholders of the Acquiring Fund and
Target Fund and their respective successors and assigns, any
rights or remedies under or by reason of this Agreement.
15.4. Notwithstanding anything to the contrary
contained in this Agreement, the obligations, agreements,
representations and warranties with respect to each Fund shall
constitute the obligations, agreements, representations and
warranties of that Fund only (the "Obligated Fund"), and in no
event shall any other series of the Acquiring Trust or the
assets of any such series be held liable with respect to the
breach or other default by the Obligated Fund of its
obligations, agreements, representations and warranties as set
forth herein.
15.5. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State
of New York without regard to its principles of conflicts of
laws.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by an authorized officer and its
seal to be affixed thereto and attested by its Secretary or
Assistant Secretary.
Attest:
/s/ Xxx Xxxxxxxxxx
Secretary
TAMARACK FUNDS TRUST,
on behalf of the Acquiring Fund
By: /s/ Xxxx X. Xxxxx
Its: President
Attest:
/s/ Xxxxxxxx Xxxxxxxx
Secretary
ACCESS CAPITAL STRATEGIES COMMUNITY INVESTMENT FUND, INC.
the Target Fund
By: /s/ Xxxxxx X. Xxxxxxxx
Its: Attorney-in-Fact for Xxxxx X. Sand, Chief Executive Officer
