AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this
"Agreement") is made as of this 5th day of June 2009, as amended
and restated on August 18, 2009, by and between WT Mutual Fund,
a Delaware statutory trust (the "Trust"), on behalf of its
Wilmington Moderate Asset Allocation Fund (the "Moderate Fund"),
and the Trust on behalf of its Wilmington Conservative Asset
Allocation Fund (the "Conservative 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 Moderate Fund to the
Conservative Fund in exchange for shares of the Conservative
Fund (the "Shares") and the assumption by the Conservative Fund
of the Moderate Fund's liabilities, followed by the distribution
of the Shares by the Moderate Fund to its shareholders in
complete liquidation and termination of the Moderate Fund; and
WHEREAS, the parties intend that the transactions
described in the preceding paragraph constitute a reorganization
within the meaning of 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 Moderate Fund and the
Conservative 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 Moderate Fund and the
Conservative 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 Moderate Fund shall
transfer all of its assets to the Conservative Fund. In exchange
therefor, the Conservative Fund shall assume all of the
liabilities of the Moderate Fund and deliver to the Moderate
Fund a number of "A Shares" and "Institutional Shares" of the
Conservative Fund which is equal to (i) the aggregate net asset
value attributable to each such Class of shares of the Moderate
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 Conservative Fund outstanding at the
close of business on the day preceding the Closing Date.
Section 1.2. Liquidation of Moderate Fund.
Immediately after the transfer of assets provided for in Section
1.1, the Moderate 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 Moderate Fund pursuant to Section 1.1.
Section 1.3. No Issuance of Share Certificates.
The Moderate Fund shall accomplish the liquidation and
distribution provided for herein by opening accounts on the
books of the Conservative Fund in the names of its shareholders
and transferring to its shareholders the Shares credited to the
account of the Moderate Fund on the books of the Conservative
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 Conservative Fund to
the Moderate 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 Moderate Fund, the Conservative
Fund and the Trust.
Section 1.5. Closing Time and Place.
The Closing Date shall be August 24, 2009, 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 August 31, 2009, 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 business 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 Moderate Fund.
As promptly as practicable after the Closing, the Moderate Fund
shall dissolve.
Section 1.8. Transfer Taxes.
Any transfer taxes payable upon issuance of the Shares in a name
other than the registered holder of the Moderate Fund shares on
the books of the Moderate 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 Moderate Fund (including
regulatory and tax reporting responsibility) shall become the
responsibility of the Conservative Fund at the Closing Date.
ARTICLE II
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE
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
Moderate 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.
Section 2.5. Tax Opinion.
Each of the Moderate Fund and the Conservative 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 Moderate
Fund solely in exchange for Shares and the
assumption by the Conservative Fund of all of the
liabilities of the Moderate Fund, followed by the
distribution of the Shares by the Moderate Fund
to its shareholders in complete liquidation and
termination of the Moderate Fund, will constitute
a reorganization within the meaning of Section
368(a) of the Code, and each of the Conservative
Fund and the Moderate 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
Conservative Fund upon the receipt of the assets
of the Moderate Fund solely in exchange for
Shares and the assumption by the Conservative
Fund of the liabilities of the Moderate Fund.
(iii) No gain or loss will be recognized by the
Moderate Fund upon the transfer of all of its
assets to the Conservative Fund solely in
exchange for the Shares and the assumption by the
Conservative Fund of the liabilities of the
Moderate Fund, or upon the distribution of the
Shares to the Moderate Fund's shareholders in
complete liquidation in exchange for their shares
of the Moderate Fund.
(iv) No gain or loss will be recognized by the
Moderate Fund's shareholders upon the exchange of
their shares of the Moderate Fund for Shares in
the Reorganization;
(v) The aggregate tax basis of the Shares received by
each shareholder of the Moderate Fund pursuant to
the Reorganization will be the same as the
aggregate tax basis of the shares of the Moderate
Fund held by such shareholder immediately prior
to the Reorganization, and the holding period of
the Shares received by a shareholder of the
Moderate Fund will include the period during
which the shares of the Moderate Fund exchanged
therefor were held by such shareholder (provided
that the shares of the Moderate Fund were held as
a capital asset on the date of the
Reorganization); and
(vi) The tax basis of the assets of the Moderate Fund
acquired by the Conservative Fund will be the
same as the tax basis of such assets to the
Moderate Fund immediately prior to the
Reorganization, and the holding period of such
assets in the hands of the Conservative Fund will
include the period during which the assets were
held by the Moderate Fund.
No opinion, however, will be expressed as to: (1) the
effect of the Reorganization on (i) the Moderate Fund or the
Conservative 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 Moderate Fund that is
required to recognize unrealized gains and losses for federal
income tax purposes under a xxxx-to-market system of accounting
and (2) any other federal tax issues (except those set forth
above) and all state, local or foreign tax issues of any kind.
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 Moderate 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.
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 Moderate Fund represents and warrants that on the Closing
Date the assets received by the Conservative Fund from the
Moderate Fund will be delivered to the Conservative 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 Moderate 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 Conservative Fund represents and warrants that on the
Closing Date (a) the Shares to be delivered to the Moderate Fund
as contemplated in this Agreement will be duly authorized,
validly issued, fully paid and nonassessable; (b) no shareholder
of the Conservative Fund or any other series of the Trust has
any preemptive right to subscription or purchase in respect
thereof; (c) the Moderate 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 Moderate Fund and the Conservative Fund (the
"Funds") represents and warrants that:
(a) At the Closing Date, all federal and other
tax returns and reports of the Funds 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 Funds 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
Funds have 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 have distributed in each such year all net investment
company taxable income (computed without regard to any deduction
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 Moderate 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, 2008, 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, 2008,
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.
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 Moderate 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 Moderate 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 Moderate 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, the respective
costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby will be borne by the
investment adviser of each of the Moderate Fund and Conservative
Fund.
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. Moderate Fund Liabilities.
The Moderate Fund will use its best efforts to discharge all of
its financial liabilities and obligations prior to the Closing
Date.
Section 4.7.
Prior to the closing, the Moderate Fund will have declared a
dividend which, together with all previous dividends, will have
the effect of distributing to its shareholders all of the
Moderate Fund's investment company taxable income for taxable
years ending on or prior to closing, and all of its net capital
gains, if any, realized in taxable years ending on or prior to
closing.
Section 4.8.
Subject to the provisions of this Agreement, the
Conservative Fund and the Moderate Fund will each take, or cause
to be taken, all action, and do or cause to be done, all things
reasonably necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement.
Section 4.9.
The Conservative Fund and the Moderate Fund shall each
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.
Section 4.10.
The Conservative Fund will use all reasonable efforts
to obtain the approvals and authorizations required by the
Securities Act of 1933, as amended, the 1940 Act and such of the
state blue sky or securities laws as may be necessary in order
to continue its operations after the Closing Date.
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 Moderate Fund or the
Conservative Fund, respectively.
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 Conservative Fund or the Moderate
Fund must look solely to the property of the Conservative Fund
or the Moderate Fund for the enforcement of any claims against
the Conservative Fund or the Moderate Fund, respectively, as
neither the trustees, directors, officers, agents nor
shareholders of the Conservative Fund or the Moderate Fund
assume any personal liability for obligations entered into on
behalf of the Conservative Fund or the Moderate 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:
WT Mutual Fund
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx., Secretary
with a copy to:
Xxxxxx Xxxxxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Del Xxxx
IN WITNESS WHEREOF, each party has caused this amended
and restated 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 Moderate Asset Allocation Fund
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, President
WT MUTUAL FUND,
on behalf of its Wilmington Conservative Asset Allocation Fund
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, President
