FORM OF AGREEMENT AND PLAN OF REORGANIZATION
FORM OF AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this “Agreement”) is made as of this ,
2008, by and between WT Mutual Fund, a Delaware statutory trust (the “Trust”), on behalf of its
Wilmington Large-Cap Core Fund (the “Large-Cap Core Fund”), and the Trust on behalf of its
Wilmington Multi-Manager Large-Cap Fund (the “Multi-Manager Fund”).
WHEREAS, the parties wish to enter into a plan of reorganization (the “Plan”) which will
consist, among other things, of the transfer of assets of the Large-Cap Core Fund to the
Multi-Manager Fund in exchange for shares of the Multi-Manager Fund (the “Shares”) and the
assumption by the Multi-Manager Fund of the Large-Cap Core Fund’s liabilities, followed by the
distribution of the Shares by the Large-Cap Core Fund to its shareholders in complete liquidation
and termination of the Large-Cap Core Fund; and
WHEREAS, the parties intend that the transactions described in the preceding paragraph
constitute a reorganization described in Section 368(a) of the Internal Revenue Code of 1986, as
amended (the “Code”); and
WHEREAS, the reorganization is subject to, and shall be effected in accordance with, the terms
of this Agreement, which is intended to be and is adopted by the Trust, on its own behalf and on
behalf of each of the Large-Cap Core Fund and the Multi-Manager Fund, as a “plan of reorganization”
within the meaning of Section 368 of the Code;
WHEREAS, the Board of Trustees of the Trust, including a majority of the Trustees who are not
“interested persons” of the Trust, as defined in the Investment Company Act of 1940, as amended
(the “1940 Act”), has determined that the Plan is in the best interests of the shareholders of the
Large-Cap Core Fund and the Multi-Manager Fund, respectively, and that their interests would not be
diluted as a result of the transactions contemplated thereby.
NOW THEREFORE, in consideration of the agreements contained in this Agreement, the parties
agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND LIABILITIES
Section 1.1. Transfer of Assets and Liabilities.
Subject to the terms and conditions set forth herein, on the Closing Date (as hereafter defined),
the Large-Cap Core Fund shall transfer all of its assets to the Multi-Manager Fund. In exchange
therefor, the Multi-Manager Fund shall assume all of the liabilities of the Large-Cap Core Fund and
deliver to the Large-Cap Core Fund a number of “A Shares” and “Institutional Shares” of the
Multi-Manager Fund which is equal to (i) the aggregate net asset value attributable to each such
Class of shares of the Large-Cap Core Fund at the close of business on the day preceding the
Closing Date, divided by (ii) the net asset value per share of such Class of shares of the
Multi-Manager Fund outstanding at the close of business on the day preceding the Closing Date.
Section 1.2. Liquidation of Large-Cap Core Fund.
Immediately after the transfer of assets provided for in Section 1.1, the Large-Cap Core Fund shall
completely liquidate and shall distribute pro rata to each Class of its shareholders of record in
proportion to their respective numbers of shares of each Class held by such shareholders,
determined as of the close of business on the day preceding the Closing Date, the same Class of
Shares received by the Large-Cap Core Fund pursuant to Section 1.1.
Section 1.3. No Issuance of Share Certificates.
The Large-Cap Core Fund shall accomplish the liquidation and distribution provided for herein by
opening accounts on the books of the Multi-Manager Fund in the names of its shareholders and
transferring to its shareholders the Shares credited to the account of the Large-Cap Core Fund on
the books of the Multi-Manager Fund. No certificates evidencing Shares shall be issued.
Section 1.4. Time and Date of Valuation.
The number of Shares to be issued by the Multi-Manager Fund to the Large-Cap Core Fund shall be
computed as of 4:00 p.m. (Eastern time) on the date preceding the Closing Date in accordance with
the regular practices of the Large-Cap Core Fund, the Multi-Manager Fund and the Trust.
Section 1.5. Closing Time and Place.
The Closing Date shall be June 16, 2008, or such later date on which all of the conditions set
forth in Article II have been fulfilled or otherwise waived by the parties hereto, but in any event
not later than June 30, 2008, or such later date as the parties may mutually agree. All acts taking
place on the Closing Date shall be deemed to be taking place simultaneously as of the commencement
of business on the Closing Date, unless otherwise provided. The closing of the reorganization
contemplated by the Plan (the “Closing”) shall be held at 10:00 a.m. (Eastern time) at the offices
of Xxxxxx Xxxxxxxx LLP, 3000 Two Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or such other time
and/or place as the parties may mutually agree.
Section 1.6. Delay of Valuation.
If on the day preceding the Closing Date (a) the primary trading market for portfolio securities of
either party is closed to trading or trading thereon is restricted, or (b) trading or the reporting
of trading is disrupted so that an accurate appraisal of the value of the net assets of either
party and an accurate calculation of the number of shares held by each shareholder 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.
Section 1.7. Termination of Large-Cap Core Fund.
As promptly as practicable after the Closing, the Large-Cap Core Fund shall dissolve.
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Section 1.8. Transfer Taxes.
Any transfer taxes payable upon issuance of the Shares in a name other than the registered holder
of the Large-Cap Core Fund shares on the books of the Large-Cap Core Fund as of that time shall, as
a condition of such issuance and transfer, be paid by the person to whom such Shares are to be
issued and transferred.
Section 1.9. Reporting Responsibility.
Any reporting responsibility of the Large-Cap Core Fund (including regulatory and tax reporting
responsibility) is and shall remain the responsibility of the Large-Cap Core Fund.
ARTICLE II
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE
REORGANIZATION.
REORGANIZATION.
The respective obligation of each party to effect the reorganization contemplated by this
Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of the following
conditions:
Section 2.1. Shareholder Approval.
On or prior to the Closing Date, the shareholders of the Large-Cap Core Fund shall have approved
the transactions contemplated by this Agreement in accordance with the provisions of Delaware law
and the 1940 Act.
Section 2.2. No Injunctions or Restraints.
On the Closing Date, no action, suit or other proceeding shall be pending before any court or
government agency which seeks to restrain or prohibit or obtain damages or other relief in
connection with this Agreement or the transactions contemplated hereby.
Section 2.3. Consents.
All consents of the other party and all other consents, orders and permits of Federal, state and
local regulatory authorities deemed necessary by the Trust to permit consummation, in all material
respects, of the transactions contemplated herein 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 either party or the Trust.
Section 2.4. Effective Registration Statement.
The Form N-1A Registration Statement of the Trust and the Form N-14 Registration Statement of the
Trust with respect to the Shares shall continue to be effective 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.
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Section 2.5. Tax Opinion.
Each of the Large-Cap Core Fund and the Multi-Manager Fund shall have received an opinion of Xxxxxx
Xxxxxxxx LLP substantially to the effect that, based on certain representations, qualifications and
assumptions, for federal income tax purposes:
| (i) | The transfer of all of the assets of the Large-Cap Core Fund solely in exchange for Shares and the assumption by the Multi-Manager Fund of all of the liabilities of the Large-Cap Core Fund, followed by the distribution of the Shares by the Large-Cap Core Fund to its shareholders in complete liquidation and termination of the Large-Cap Core Fund, will constitute a reorganization within the meaning of Section 368(a) of the Code, and each of the Multi-Manager Fund and the Large-Cap Core Fund will 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 Multi-Manager Fund upon the receipt of the assets of the Large-Cap Core Fund solely in exchange for Shares and the assumption by the Multi-Manager Fund of the liabilities of the Large-Cap Core Fund. | ||
| (iii) | No gain or loss will be recognized by the Large-Cap Core Fund upon the transfer of all of its assets to the Multi-Manager Fund solely in exchange for the Shares and the assumption by the Multi-Manager Fund of the liabilities of the Large-Cap Core Fund or upon the distribution of the Shares to the Large-Cap Core Fund’s shareholders complete liquidation in exchange for their shares of the Large-Cap Core Fund. | ||
| (iv) | No gain or loss will be recognized by the Large-Cap Core Fund’s shareholders upon the exchange of their shares of the Large-Cap Core Fund for Shares in the Reorganization; | ||
| (v) | The aggregate tax basis of the Shares received by each shareholder of the Large-Cap Core Fund pursuant to the Reorganization will be the same as the aggregate tax basis of the shares of the Large-Cap Core Fund held by such shareholder immediately prior to the Reorganization, and the holding period of the Shares received by a shareholder of the Large-Cap Core Fund will include the period during which the shares of the Large-Cap Core Fund exchanged therefor were held by such shareholder (provided that the shares of the Large-Cap Core Fund were held as a capital asset on the date of the Reorganization); and | ||
| (vi) | The tax basis of the assets of the Large-Cap Core Fund acquired by the Multi-Manager Fund will be the same as the tax basis of such assets to the Large-Cap Core Fund immediately prior to the Reorganization, and the holding period of such assets in the hands of the Multi-Manager Fund will include the period during which the assets were held by the Large-Cap Core Fund. |
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No opinion, however, will be expressed as to the effect of the Reorganization on (i) the
Large-Cap Core Fund or the Multi-Manager Fund (x) 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
the taxable year (or on the termination or transfer thereof) under a xxxx-to-market system of
accounting, or (y) with respect to any stock held of a passive foreign investment company as
defined in Section 1297(a) of the Code or (ii) any shareholder of the Large-Cap Core Fund that is
required to recognize unrealized gains and losses for federal income tax purposes under a
xxxx-to-market system of accounting.
Section 2.6. Covenants, Representations and Warranties.
Each party shall have performed all of its covenants set forth in Article 4, and its
representations and warranties set forth in Article 3 shall be true and correct in all material
respects on and as of the Closing Date as if made on such date, and the President or a
Vice-President of the Trust shall have executed a certificate to such effect.
Section 2.7. Statement of Assets and Liabilities.
The Large-Cap Core Fund shall have delivered to the Trust on the Closing Date a statement of its
assets and liabilities, prepared in accordance with generally accepted accounting principles
consistently applied, together with a certificate of its Treasurer or Assistant Treasurer as to its
portfolio securities and the federal income tax basis and holding period as of the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The parties represent and warrant as follows:
Section 3.1. Structure and Standing.
Each party represents and warrants that it is duly organized as a series of a statutory trust,
validly existing and in good standing under the laws of the State of Delaware, and has the power to
own all of its properties and assets and conduct its business.
Section 3.2. Power.
Each party represents and warrants that it has full power and authority to enter into and perform
its obligations under this Agreement; the execution, delivery and performance of this Agreement has
been duly authorized by all necessary action of the Board of Trustees of the Trust; this Agreement
does not violate, and its performance will not result in violation of, any provision of the
Declaration of Trust of the Trust, or any agreement, instrument or other undertaking to which it is
a party or by which it is bound; and this Agreement constitutes its valid and binding contract
enforceable in accordance with its terms, subject to the effects of bankruptcy, moratorium,
fraudulent conveyance and similar laws relating to or affecting creditors’ rights generally and
court decisions with respect thereto.
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Section 3.3. Litigation.
Each party represents and warrants that no litigation or administrative proceeding or investigation
of or before any court or governmental body is currently pending against it and, to the best of its
knowledge, none is threatened against it or any of its properties or assets, which, if adversely
determined, would materially and adversely affect its financial condition or the conduct of its
business; it knows of no facts which might form the basis for the institution of such proceedings;
and it 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.
Section 3.4. Fund Assets.
The Large-Cap Core Fund represents and warrants that on the Closing Date the assets received by the
Multi-Manager Fund from the Large-Cap Core Fund will be delivered to the Multi-Manager Fund as
provided in Section 1.1 free and clear of all liens, pledges, security interests, charges or other
encumbrances of any nature whatsoever created by the Large-Cap Core Fund and without any
restriction upon the transfer thereof, except for such liabilities assumed as provided in Section
1.1.
Section 3.5. The Shares.
The Multi-Manager Fund represents and warrants that on the Closing Date (a) the Shares to be
delivered to the Large-Cap Core Fund as contemplated in this Agreement will be duly authorized,
validly issued, fully paid and nonassessable; (b) no shareholder of the Multi-Manager Fund or any
other series of the Trust has any preemptive right to subscription or purchase in respect thereof;
(c) the Large-Cap Core Fund will acquire the Shares free and clear of all liens pledges, security
interests, charges or other encumbrances of any nature whatsoever created by the Trust and without
any restriction on the transfer thereof; and (d) the Shares will be duly qualified for offering to
the public in all of the states of the United States in which such qualification is required or an
exemption from such requirement shall have been obtained.
Section 3.6. Tax Status and Filings.
Each of the Large-Cap Core Fund and the Multi-Manager Fund represents and warrants that:
(a) At the Closing Date, all federal and other tax returns and reports of the fund required by
law to have been filed by such date shall have been filed, and all federal and other taxes due and
payable shall have been paid, or provision shall have been made for the payment thereof. To the
best of the fund’s knowledge, no such return is currently under audit by the IRS or any state or
local tax authority, and no assessment has been asserted with respect to such returns.
(b) For each fiscal year of its operation, the fund has met, and will continue to meet through
the Closing Date, the requirements of Subchapter M of the Code for qualification and treatment as a
regulated investment company and has distributed in each such year all net investment company
taxable income (computed without regard to any deduction
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for dividends paid) and net realized capital gains (after reduction for any capital loss
carryforward).
Section 3.7. Accuracy of Information.
Each party represents and warrants that all information furnished by it to the other party for use
in any documents which may be necessary in connection with the transactions contemplated by this
Agreement will be accurate and complete and will comply in all material respects with federal
securities and other laws and regulations applicable thereto.
Section 3.8. Acquisition of the Shares.
The Large-Cap Core Fund represents and warrants that the Shares it acquires pursuant to this
Agreement are not being acquired for the purpose of making any distribution thereof, except in
accordance with the terms of this Agreement.
Section 3.9. Financial Statements.
Each party represents and warrants that its Statement of Assets and Liabilities as of December 31,
2007, provided to the other party has been prepared in accordance with generally accepted
accounting principles consistently applied, and fairly reflects the financial condition of such
party as of such date, and there are no known contingent liabilities of such party as of such date
not disclosed therein.
Section 3.10. No Adverse Changes.
Each party represents and warrants that since December 31, 2007, there has not been any material
adverse change in its financial condition, assets, liabilities or business other than changes
occurring in the ordinary course of business except as otherwise disclosed in writing to and
accepted by the other party (for the purposes of this paragraph, a decline in net asset value per
share of a party shall not constitute a material adverse change).
Section 3.11. Proxy Statement.
Each party represents and warrants that the Combined Proxy Statement and Prospectus contained in
the Registration Statement on Form N-14 to be used in connection with the transaction contemplated
hereby (only insofar as it relates to such party) will, on its effective date and on the Closing
Date, not contain any untrue statement of material fact with respect to such party or omit to state
a material fact required to be stated therein with respect to such party or necessary to make the
statements therein with respect to such party, in light of the circumstances under which such
statements were made, not materially misleading.
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ARTICLE IV
COVENANTS
Section 4.1. Conduct of Business.
During the period from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Closing Date, each party shall operate its business in the
ordinary course except as contemplated by this Agreement.
Section 4.2. Shareholder Meeting.
The Large-Cap Core Fund shall call a special meeting of its shareholders as soon as possible for
the purpose of considering the reorganization contemplated by this Agreement.
Section 4.3. Preparation of Combined Proxy Statement and Prospectus.
As soon as reasonably practicable after the execution of this Agreement, the Trust, on behalf of
the Large-Cap Core Fund, shall prepare and file a combined prospectus and proxy statement with
respect to the reorganization with the United States Securities and Exchange Commission in form and
substance satisfactory to both parties, and shall use its best efforts to provide that the combined
prospectus and proxy statement can be distributed to the shareholders of the Large-Cap Core Fund as
promptly thereafter as is practicable. As soon as reasonably practicable, the parties shall also
prepare and file any other related filings required under applicable state securities laws.
Section 4.4. Fees and Expenses.
Whether or not this Agreement is consummated, each party shall bear its respective costs and
expenses incurred in connection with this Agreement and the transactions contemplated hereby.
Section 4.5. Provision of Documents.
Each party agrees that it will, from time to time as and when reasonably requested by the other
party, provide or cause to be provided to the other party such information, execute and deliver or
cause to be executed and delivered to the other party such documents, and take or cause to be taken
such further action, as the other party may deem necessary in order to carry out the intent of this
Agreement.
Section 4.6. Large-Cap Core Fund Liabilities.
The Large-Cap Core Fund will use its best efforts to discharge all of its financial liabilities and
obligations prior to the Closing Date.
Immediately prior to the closing, the Large-Cap Core Fund will have declared a dividend which,
together with all previous dividends, will have the effect of distributing to its shareholders all
of the Large-Cap Core Fund’s investment company taxable income for taxable years ending on or
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prior to closing, and all of its net capital gains, if any, realized in taxable years ending on or
prior to closing.
ARTICLE V
TERMINATION, AMENDMENT AND WAIVER
Section 5.1. Termination.
This Agreement may be terminated by resolution of the Board of Trustees of the Trust at any time
prior to the Closing Date, if
(a) either party shall have breached any material provision of this Agreement; or
(b) circumstances develop that, in the opinion of such Board, make proceeding with the Plan
inadvisable; or
(c) any governmental body shall have issued an order, decree or ruling having the effect of
permanently enjoining, restraining or otherwise prohibiting the consummation of this Agreement.
Section 5.2. Effect of Termination.
In the event of any termination pursuant to Section 5.1, there shall be no liability for damage on
the part of either party to the other party.
Section 5.3. Amendment.
This Agreement contains the entire agreement of the parties with respect to the reorganization
contemplated by the Plan and may be amended prior to the Closing Date by the parties in writing at
any time; provided, however, that there shall not be any amendment that by law requires approval by
the shareholders of a party without obtaining such approval.
Section 5.4. Waiver.
At any time prior to the Closing Date, any of the terms or conditions of this Agreement may be
waived by the Board of Trustees of the Trust if, in its judgment after consultation with legal
counsel, such action or waiver will not have a material adverse effect on the benefits intended
under this Agreement to the shareholders of the Large-Cap Core Fund or the Multi-Manager Fund,
respectively.
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ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Delaware.
Section 6.2. Assignment.
This Agreement shall be binding upon 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 either 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 other than the parties hereto and their respective successors and assigns any rights or
remedies under or by reason of this Agreement.
Section 6.3. Recourse.
All persons dealing with the Multi-Manager Fund or the Large-Cap Core Fund must look solely to the
property of the Multi-Manager Fund or the Large-Cap Core Fund for the enforcement of any claims
against the Multi-Manager Fund or the Large-Cap Core Fund, respectively, as neither the trustees,
directors, officers, agents nor shareholders of the Multi-Manager Fund or the Large-Cap Core Fund
assume any personal liability for obligations entered into on behalf of the Multi-Manager Fund or
the Large-Cap Core Fund, respectively.
Section 6.4. Notices.
Any notice, report, statement or demand required or permitted by any provisions of this Agreement
shall be in writing and shall be given by prepaid telegraph, telecopy or certified mail addressed
to either party at:
with a copy to:
Xxxxxx Xxxxxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Del Xxxx
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Del Xxxx
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed and attested on its
behalf by its duly authorized representatives as of the date first above written.
| WT MUTUAL FUND, on behalf of its Wilmington Large-Cap
Core Fund |
||||
| By: | ||||
| Xxxx Xxxxxxx, President | ||||
| By: | ||||
| Xxxx Xxxxxxx, President | ||||
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