AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION
Exhibit 4
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
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”).
ARTICLE I
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ARTICLE II
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.
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(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.
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ARTICLE III
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.
(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
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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).
ARTICLE IV
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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.
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.
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.
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.
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
(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.
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ARTICLE VI
Section 6.1. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
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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WT MUTUAL FUND, on behalf of its Wilmington Moderate Asset Allocation Fund |
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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 | ||||
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