FORM OF AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) is made as of this 17th day of Decmeber 2019, by and among Steben Alternative Investment Funds (the “Steben Trust”), a Delaware
statutory trust, with its principal place of business at 0000 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000, on behalf of its series the Steben Managed Futures Strategy Fund (the “Acquired Fund”), and LoCorr Investment Trust
(the “LoCorr Trust”), an Ohio business trust, with its principal place of business at 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, on behalf of its series LoCorr Macro Strategies Fund (the “Acquiring Fund” and, together with the Acquired
Fund, the “Funds”) and, solely with respect to Article IX, LoCorr Fund Management, LLC (“LFM”), with its principal place of business at 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS, it is intended that the transactions contemplated by this Agreement constitute a “reorganization” as defined in Section 368(a) of the United States Internal Revenue Code of 1986, as
amended (the “Code”), and the Treasury regulations thereunder. The reorganization will consist of: (i) the transfer of all or substantially all of the property and assets of the Acquired Fund to the Acquiring Fund in exchange for (A) shares of
beneficial interest, no par value per share, of a corresponding class of shares of the Acquiring Fund (the “Acquiring Fund Shares”), as noted below, and (B) the assumption by the Acquiring Fund of all liabilities of the Acquired Fund; and (ii)
the distribution of the Acquiring Fund Shares pro rata on a class-by-class basis to the shareholders of the corresponding classes of the Acquired Fund in exchange for their shares in the Acquired Fund in liquidation of the Acquired Fund as
provided herein, all upon the terms and conditions set forth in this Agreement (i) and (ii) (collectively, the “Reorganization”). The parties hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury regulations
Sections 1.368-2(g) and 1.368-3(a). Notwithstanding anything to the contrary contained herein, the obligations, agreements, representations and warranties with respect to each Fund shall be the obligations, agreements, representations and
warranties of that Fund only, and in no event shall any other series of the Steben Trust or the LoCorr Trust or the assets of any other series of the Steben Trust or the LoCorr Trust be held liable with respect to the breach or other default by
an obligated Fund of its obligations, agreements, representations and warranties as set forth herein;
WHEREAS, the Acquired Fund and Acquiring Fund are separate series of the Steben Trust and the LoCorr Trust, respectively, the Steben Trust and the LoCorr Trust are open-end, registered management
investment companies, and the Acquired Fund owns securities and other investments that are assets of the character in which the Acquiring Fund is permitted to invest;
WHEREAS, each Fund is authorized to issue its shares of beneficial interest;
WHEREAS, the Acquired Fund currently offers the following four classes of shares: Class A, Class C, Class I and Class N, (the “Acquired Fund Shares”), and the Acquiring Fund offers three classes
of shares: Class A, Class C and Class I (the “Acquiring Fund Shares”). As part of the Reorganization, Acquired Fund Shares of each class will be exchanged for Acquiring Fund Shares of the corresponding class except for Class N of the Acquired
Fund which will be exchanged for Class A shares of the Acquiring Fund.
WHEREAS, the Trustees of the Steben Trust have determined that the Reorganization, with respect to the Acquired Fund, is in the best interests of the Acquired Fund’s shareholders and that the
interests of the existing shareholders of the Acquired Fund will not be diluted as a result of the Reorganization; and
WHEREAS, the Trustees of the LoCorr Trust have determined that the Reorganization, with respect to the Acquiring Fund, is in the best interests of the Acquiring Fund and that the Reorganization
will not result in dilution of the Acquiring Fund’s shareholders’ interests;
NOW, THEREFORE, in consideration of the premises, covenants, and agreements hereinafter set forth, the parties hereto covenant and agree as follows:
ARTICLE I
TRANSFER OF ASSETS OF THE ACQUIRED FUND IN EXCHANGE FOR ACQUIRING FUND
SHARES AND THE ASSUMPTION OF THE ACQUIRED FUND’S LIABILITIES AND TERMINATION OF THE ACQUIRED FUND
TRANSFER OF ASSETS OF THE ACQUIRED FUND IN EXCHANGE FOR ACQUIRING FUND
SHARES AND THE ASSUMPTION OF THE ACQUIRED FUND’S LIABILITIES AND TERMINATION OF THE ACQUIRED FUND
1.1 THE
EXCHANGE. Subject to the terms and conditions contained herein and on the basis of the representations and warranties contained herein, the Acquired Fund agrees to sell, assign, convey, transfer and deliver all or substantially all of its
assets, as set forth in paragraph 1.2, free and clear of all liens and encumbrances, except those liens and encumbrances as to which the Acquiring Fund has received notice, to the Acquiring Fund. In exchange, the Acquiring Fund agrees (a) to
issue and deliver to the Acquired Fund the number of Acquiring Fund Shares, including fractional Acquiring Fund Shares, of each class having an aggregate net asset value (“NAV”) equal to the aggregate NAV of the Acquired Fund attributable to
the corresponding class of the Acquired Fund Shares, as determined in the manner set forth in paragraphs 2.1 and 2.2; and (b) to assume the liabilities of the Acquired Fund, as set forth in paragraph 1.3. Such transactions comprising the
Reorganization shall take place on the date of the Closing provided for in paragraph 3.1 (the “Closing Date”).
1.2 ASSETS TO BE
ACQUIRED. The assets of the Acquired Fund to be sold, assigned, transferred and delivered to and acquired by the Acquiring Fund shall consist of all assets and property of every kind and nature, including, without limitation, all cash,
securities, goodwill, commodities, interests in futures and dividends or interest receivables, receivables for shares sold and other rights that are owned by the Acquired Fund on the Closing Date, and any prepaid expenses shown as an asset on
the books of the Acquired Fund on the Closing Date (the “Acquired Assets”). For the sake of clarity, the Acquired Assets include, but are not limited to, all rights (including rights to indemnification and contribution) and claims (including,
but not limited to, claims for breach of contract, violation of standards of care and claims in connection with past or present portfolio holdings, whether in the form of class action claims, opt-out or other direct litigation claims or
regulator or government established investor recovery fund claims and any and all resulting recoveries, free and clear of all liens, encumbrances and claims whatsoever) of the Acquired Fund against any party with whom the Acquired Fund has
contracted for any actions or omissions up to the Closing Date.
The Acquired Fund has provided the Acquiring Fund with its most recent audited financial statements, which contain a list of all of the Acquired Fund’s assets as of the date of such statements.
The Acquired Fund hereby represents that as of the date of the execution of this Agreement, there have been no changes in its financial position as reflected in such financial statements other than those occurring in the ordinary course of
business in connection with the purchase and sale of securities and the payment of normal operating expenses and the payment of dividends, capital gains distributions and redemption proceeds to shareholders. The Acquired Fund reserves the right
to sell any of such securities or other investments.
1.3 LIABILITIES
TO BE ASSUMED. The Acquired Fund will endeavor, consistent with its obligation to continue to pursue its investment objective and employ its investment strategies in accordance with the terms of its Prospectus, in good faith to discharge all of
its known liabilities and obligations to the extent practicable prior to the Closing Date. The Acquiring Fund shall assume all liabilities of the Acquired Fund not discharged prior to the Closing Date, whether known or unknown, contingent,
accrued or otherwise (excluding expenses relating to the Reorganization and borne by LFM pursuant to Article IX), and investment contracts entered into in accordance with the terms of its Prospectus, including options, futures, forward
contracts, and swap agreements (the “Assumed Liabilities”).
1.4 LIQUIDATION
AND DISTRIBUTION. On or as soon after the Closing Date as is practicable (the “Liquidation Date”): (a) the Acquired Fund will distribute, in liquidation, all of the Acquiring Fund Shares received by the Acquired Fund pursuant to paragraph 1.1,
pro rata to its shareholders of record, determined as of the close of business on the Valuation Date (as defined in paragraph 2.1) (the “Acquired Fund Shareholders”). Each Acquired Fund Shareholder will receive in respect of the Acquired Fund
Shares of each class the number of full and fractional Acquiring Fund Shares of the class corresponding to that class of shares that has an aggregate NAV equal to the aggregate NAV of the Acquired Fund Shares and class held of record by such
Acquired Fund Shareholder on the Closing Date. Such liquidation and distribution will be accomplished by the transfer of Acquiring Fund Shares credited to the account of the Acquired Fund on the books of the Acquiring Fund to open accounts on
the share records of the Acquiring Fund in the names of the Acquired Fund Shareholders, representing the respective number of Acquiring Fund Shares of each class due such shareholders. All issued and outstanding Acquired Fund Shares will
simultaneously be canceled on the books of the Acquired Fund, and the Acquired Fund will thereupon proceed to terminate as set forth in paragraph 1.7 below. The Acquiring Fund shall not issue certificates representing Acquiring Fund Shares in
connection with such exchange. Each Acquired Fund Shareholder shall have the right to receive any unpaid dividends or other distributions that were declared by the Acquired Fund before the Effective Time (as defined in paragraph 3.1) with
respect to Acquired Fund Shares that are held of record by the Acquired Fund Shareholder at the Effective Time on the Closing Date.
1.5 OWNERSHIP OF
SHARES. Ownership of Acquiring Fund Shares will be shown on the books of the Acquiring Fund’s transfer agent.
1.6 TRANSFER
TAXES. Any transfer taxes payable upon the transfer of Acquiring Fund Shares in a name other than the registered holder of the Acquired Fund Shares on the books of the Acquired Fund as of that time shall, as a condition of such issuance and
transfer, be paid by the person to whom such Acquiring Fund Shares are to be transferred.
1.7 TERMINATION.
As soon as practicable after the Closing Date, the Steben Trust shall make all filings and take all other steps as shall be necessary and proper to effect its complete dissolution under Delaware law. After the Closing Date, the Acquired Fund
shall not conduct any business except in connection with its dissolution.
ARTICLE II
VALUATION
VALUATION
2.1 VALUATION OF
ASSETS. The value of the Acquired Fund’s Acquired Assets to be acquired by the Acquiring Fund hereunder shall be the value of such Acquired Assets computed as of the close of regular trading on the New York Stock Exchange (“NYSE”) on the
Closing Date (such time and date being hereinafter called the “Valuation Date”). The NAV per share of each class of Acquiring Fund Shares shall be computed by U.S. Bancorp Global Fund Services, LLC, the Acquiring Fund’s accounting agent, in
the manner set forth in the LoCorr Trust’s Amended and Restated Agreement and Declaration of Trust, or By-Laws, and the Acquiring Fund’s then-current prospectus and statement of additional information. The NAV per share of each class of
Acquired Fund Shares shall be computed by U.S. Bancorp Fund Services, LLC, the Acquired Fund’s accounting agent, in the manner set forth in the Amended and Restated Agreement and Declaration of Trust of the Steben Trust, and the Acquired Fund’s
then-current prospectus and statement of additional information.
2.2 VALUATION OF
SHARES AND CALCULATION OF NUMBERS OF SHARES. The NAV per share of each class of Acquiring Fund Shares and the NAV per share of each class of Acquired Fund Shares shall, in each case, be computed as of the close of normal trading on the NYSE on
the Valuation Date. The number of each class of Acquiring Fund Shares of the Acquired Fund to be issued (including fractional shares, if any) in the Reorganization in exchange for a corresponding class of Acquired Fund Shares shall be
determined by U.S. Bancorp Global Fund Services, LLC by dividing the NAV of the Acquired Fund attributable to that class of Acquired Fund Shares of the Acquired Fund, as determined in accordance with paragraph 2.1 and 2.2, by the NAV of one
Acquiring Fund Share of the corresponding class of the Acquiring Fund, as determined in accordance with Paragraph 2.1 hereof.
2.3 DETERMINATION
OF VALUE. All computations of value shall be made by U.S. Bancorp Fund Services, LLC in accordance with its regular practice in pricing the shares and assets of the Acquired Fund. The Acquired Fund and the Acquiring Fund agree to use
commercially reasonable and good faith efforts to cause their respective administrators and investment advisers to work together to resolve before the Closing Date any material differences identified between the valuations of the Acquired
Assets determined using the Acquiring Fund’s valuation procedures as compared to the prices of the Acquired Assets determined using the Acquired Fund’s valuation procedures.
ARTICLE III
CLOSING AND CLOSING DATE
CLOSING AND CLOSING DATE
3.1 CLOSING
DATE. Subject to the satisfaction or waiver of the conditions set forth in Articles VI, VII and VIII of this Agreement, the closing (the “Closing”) will be on the Closing Date, which will be on or about January 31, 2020, or such other date as
the parties may agree to in writing. The Closing shall be held as of the close of business (the “Effective Time”) at the offices of Xxxxxx & Co., Inc., or at such other time and/or place as the parties may agree. All acts taking place at
the Closing shall be deemed to take place simultaneously immediately at the Effective Time, unless otherwise provided.
3.2 CUSTODIAN’S
CERTIFICATE. The portfolio securities and other investments of the Acquired Fund shall be made available by the Acquired Fund to the Acquiring Fund’s custodian for examination no later than five business days preceding the Closing Date. U.S.
Bank N.A., as custodian for the Acquired Fund, shall deliver at the Closing a certificate of an authorized officer stating that: (a) the Acquired Fund’s portfolio securities, cash, and any other assets shall have been delivered in proper form
to the Acquiring Fund on the Closing Date; and (b) all necessary Taxes (as defined below), including all applicable federal and state stock transfer stamps, if any, shall have been paid, or provision for payment shall have been made, in
conjunction with the delivery of portfolio securities by the Acquired Fund.
3.3 EFFECT OF
SUSPENSION IN TRADING. In the event that on the Valuation Date, either: (a) the NYSE or another primary exchange on which the portfolio securities of the Acquiring Fund or the Acquired Fund are purchased or sold, shall be closed to trading or
trading on such exchange shall be restricted; or (b) trading or the reporting of trading on the NYSE or elsewhere shall be disrupted so that accurate appraisal of the value of the net assets of the Acquiring Fund or the Acquired Fund is
impracticable as mutually determined by the parties, the Valuation Date and the Closing Date shall be postponed until the first business day after the day when trading is fully resumed and reporting is restored.
3.4 TRANSFER
AGENT’S CERTIFICATE. The Acquired Fund shall cause U.S. Bancorp Global Fund Services, LLC as its transfer agent as of the Closing Date to deliver at the Closing to the Secretary of the LoCorr Trust a certificate of an authorized officer stating
that its records contain the names and addresses of Acquired Fund Shareholders, and the number and percentage ownership of outstanding shares of the outstanding classes of Acquired Fund Shares owned by each such shareholder immediately prior to
the Closing. The Acquiring Fund shall issue and deliver or cause U.S. Bancorp Global Fund Services, LLC, its transfer agent, to issue and deliver to the Secretary of the Steben Trust a confirmation evidencing the number of each class of
Acquiring Fund Shares of the Acquiring Fund to be credited on the Closing Date or provide evidence satisfactory to the Acquired Fund that such Acquiring Fund Shares have been credited to the Acquired 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, receipts and other documents, if any, as such other party or its counsel may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS
OF THE ACQUIRED FUND. The Steben Trust and the Acquired Fund represent and warrant to the LoCorr Trust and each corresponding Acquiring Fund as follows:
(a) The Acquired
Fund is a separate series of the Steben Trust, a statutory trust duly organized, validly existing and in good standing under the laws of the State of Delaware. The Steben Trust has the power to own all of its properties and assets and, subject
to approval by the Acquired Fund Shareholders, to perform its obligations under this Agreement.
(b) The Steben
Trust is registered as an open-end management investment company, and its registration with the U.S. Securities and Exchange Commission (the “SEC”) as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”),
is in full force and effect.
(c) The current
Prospectus and Statement of Additional Information of the Acquired Fund conform in all material respects to the applicable requirements of the Securities Act of 1933 (the “1933 Act”) and the 1940 Act, and the rules and regulations thereunder,
and do not include any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Acquired
Fund is not currently engaged in, and the execution, delivery, and performance of this Agreement (subject to shareholder approval) will not result in, the violation of any material provision of the Amended and Restated Agreement and Declaration
of Trust of the Steben Trust or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquired Fund is a party or by which it is bound.
(e) The Acquired
Fund Shares are the only outstanding equity interests in the Acquired Fund.
(f) The Acquired
Fund has no material contracts or other commitments (other than this Agreement and agreements for the purchase and sale of securities or other permitted investments) that if terminated will result in material liability to the Acquired Fund.
(g) Except as
otherwise disclosed in writing to and accepted by the Acquiring Fund, no litigation, administrative proceeding, or investigation of or before any court or governmental body is presently pending or to its knowledge threatened against the
Acquired Fund or any of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition, the conduct of its business, or the ability of the Acquired Fund to carry out the transactions
contemplated by this Agreement. The Acquired Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any court or
governmental body that materially and adversely affects the Acquired Fund’s business or its ability to consummate the transactions contemplated herein.
(h) The
financial statements of the Acquired Fund for the most recently completed fiscal year, are in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquiring Fund) fairly
reflect the financial condition of the Acquired Fund as of the end of its most recently completed fiscal year, in all material respects as of that date, and there are no known contingent liabilities of the Acquired Fund as of that date not
disclosed in such statements.
(i) Since the
end of each Acquired Fund’s most recently completed fiscal year, there have been no material adverse changes in the Acquired Fund’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of
business), or any incurrence by the Acquired Fund of material indebtedness, except as otherwise disclosed to and accepted by the Acquiring Fund. For the purposes of this subparagraph (i), distributions of net investment income and net realized
capital gains, changes in portfolio securities, changes in market value of portfolio securities, or net redemptions shall not constitute a material adverse change.
(j) All Tax (as
defined below) returns and reports (including, but not limited to, information returns), that are required to have been filed by the Acquired Fund have been duly and timely filed. All such returns and reports were true, correct and complete as
of the time of their filing, and accurately state the amount of Tax (if any) owed for the periods covered by the returns, or, in the case of information returns, the amount and character of income or other information required to be reported by
the Acquired Fund. All Taxes due or properly shown to be due on such returns and reports have been paid, or provision has been made and properly accounted therefor. To the knowledge of the Steben Trust, no such returns are currently being
audited by any federal, state, local or foreign taxing authority. To the knowledge of the Steben Trust, there are no deficiency assessments (or deficiency assessments proposed in writing) with respect to any Taxes of the Acquired Fund. As
used in this Agreement, “Tax” or “Taxes” means all federal, state, local and foreign (whether imposed by a country or political subdivision or authority thereunder) income, gross receipts, excise, sales, use, value added, employment, franchise,
profits, property, ad valorem or other taxes, stamp taxes and duties, fees, assessments or charges, whether payable directly or by withholding, together with any interest and any penalties, additions to tax or additional amounts imposed by any
taxing authority (foreign or domestic) with respect thereto. There are no levies, liens or encumbrances relating to Taxes existing, threatened or pending with respect to the assets of the Acquired Fund (other than liens for Taxes not yet due
and payable). The Acquired Fund has not changed its annual accounting period within the 60-month period ending on the Closing Date.
(k) All issued
and outstanding shares of the Acquired Fund are, and at the Closing Date will be, validly issued, fully paid and non-assessable by the Acquired Fund and will have been issued in compliance with all applicable registration or qualification
requirements of federal and state securities laws. All of the issued and outstanding shares of the Acquired Fund will, at the time of the Closing Date, be held by the persons and in the amounts set forth in the records of the Acquired Fund’s
transfer agent as provided in paragraph 3.4. The Acquired Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any Acquired Fund shares, and has no outstanding securities convertible into any Acquired Fund
shares.
(l) At the
Closing Date, the Acquired Fund will have good and valid title to the Acquired Fund’s Acquired Assets to be transferred to the Acquiring Fund pursuant to paragraph 1.2, and full right, power, and authority to sell, assign, transfer, and deliver
such Acquired Assets hereunder. Upon delivery and payment for such Acquired Assets, the Acquiring Fund will acquire good and valid title, subject to no restrictions on the full transfer of such assets, including such restrictions as might arise
under the 1933 Act, other than as disclosed to and accepted by the Acquiring Fund.
(m) The
execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of the Acquired Fund. Subject to approval by the Acquired Fund’s shareholders, this Agreement constitutes a valid and binding
obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity
principles.
(n) The
information to be furnished by the Acquired Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein
shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and other laws and regulations.
(o) From the
mailing of the N-14 Registration Statement (as defined in paragraph 5.6), through the time of the meeting of the Acquired Fund’s Shareholders and on the Closing Date, any written information furnished by the Acquired Fund with respect to the
Acquired Fund for use in the N-14 Registration Statement, the N-1A Registration Statement (as defined in paragraph 4.3) or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated or necessary to make the statements, in light of the circumstances under which such statements were made, not materially misleading.
(p) The Steben
Trust has in effect an election to treat the Acquired Fund as a regulated investment company (“RIC”) for federal income tax purposes under Part I of Chapter 1, Subchapter M of the Code. The Acquired Fund is a fund that is treated as a
corporation separate from each other series of the Steben Trust under Section 851(g) of the Code. The Acquired Fund has no earnings and profits accumulated in any taxable year to which the provisions of Part I of Chapter 1, Subchapter M of the
Code (or the corresponding provisions of prior law) did not apply to it. The Acquired Fund has qualified for treatment as a RIC for each taxable year since its formation (or since it was first treated as a separate corporation under Section
851(g) of the Code) that has ended prior to the Closing Date and, subject to the accuracy of the representations set forth in paragraph 4.2(m), expects to satisfy the requirements of Part I of Chapter 1, Subchapter M of the Code to maintain
such qualification for the taxable year that includes the Closing Date. Subject to the accuracy of the representations set forth in paragraph 4.2(m), the Acquired Fund does not expect that the consummation of the transactions contemplated by
this Agreement will cause it to fail to qualify for treatment as a RIC as of the Closing Date or as of the end of its taxable year that includes the Closing Date. The Acquired Fund has not at any time since its inception been liable for any
income or excise tax pursuant to Sections 852 or 4982 of the Code that has not been timely paid. The Acquired Fund is in compliance in all material respects with all applicable provisions of the Code and all applicable Treasury regulations
pertaining to the reporting of dividends and other distributions on and redemptions of its shares of beneficial interest and to withholding in respect of dividends and other distributions to shareholders and redemption of shares, and is not
liable for any material penalties that could be imposed thereunder.
(q) The Acquired
Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the Acquired Fund’s Prospectus, except as previously disclosed
in writing to the Acquiring Fund.
(r) The
Acquiring Fund Shares to be issued to the Acquired Fund pursuant to paragraph 1.1 will not be acquired for the purpose of making any distribution thereof other than to the Acquired Fund Shareholders as provided in paragraph 1.4.
(s) No
governmental consents, approvals, authorizations or filings are required under the 1933 Act, the Securities Exchange Act of 1934 (the “1934 Act”), the 1940 Act or Delaware law for the execution of this Agreement by the Steben Trust, for itself
and on behalf of the Acquired Fund, except for the effectiveness of the N-1A Registration Statement and the N-14 Registration Statement and such other consents, approvals, authorizations and filings as have been made or received, and such
consents, approvals, authorizations and filings as may be required subsequent to the Closing Date, it being understood, however, that this Agreement and the transactions contemplated herein must be approved by the Acquired Fund Shareholders as
described in paragraph 5.2.
(t) The books
and records of the Acquired Fund, including FASB ASC 000-00-00 (formerly FIN 48) workpapers and supporting statements, made available to the Acquiring Fund and/or its counsel, are substantially true and correct and contain no material
misstatements or omissions with respect to the operations of the Acquired Fund.
(u) The Acquired
Fund would not be subject to corporate-level taxation on the sale of any assets currently held by it as a result of the application of Section 337(d) of the Code and the Treasury regulations thereunder.
(v) The Acquired
Fund has not waived or extended any applicable statute of limitations with respect to the assessment or collection of Taxes.
(w) The Acquired
Fund has not received written notification from any taxing authority that asserts a position contrary to any of the above representations set forth in paragraphs (j), (p), (t), (u), and (v) of this Section 4.1.
4.2 REPRESENTATIONS
OF THE ACQUIRING FUND. The LoCorr Trust and the Acquiring Fund represent and warrant to the Steben Trust and the Acquired Fund as follows:
(a) The
Acquiring Fund is a separate series of the LoCorr Trust, an Ohio statutory trust duly organized, validly existing and in good standing under the laws of the State of Ohio. The LoCorr Trust has the power to own all of its properties and assets
and to perform its obligations under this Agreement.
(b) The LoCorr
Trust is registered as an open-end management investment company, and its registration with the SEC as an investment company under the 1940 Act is in full force and effect.
(c) The 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 thereunder, and do not include any untrue
statement of a material fact or omit to state any material fact required to be stated or necessary to make such statements therein, in light of the circumstances under which they were made, not misleading.
(d) The
Acquiring Fund is not currently engaged in, and the execution, delivery and performance of this Agreement will not result in, a violation of any material provision of the Amended and Restated Agreement and Declaration of Trust of the LoCorr
Trust or its By-Laws, or of any material agreement, indenture, instrument, contract, lease, or other undertaking to which the Acquiring Fund is a party or by which it is bound.
(e) Except as
otherwise disclosed in writing to the Acquired Fund and accepted by the Acquired Fund, no litigation, 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 of its properties or assets, which, if adversely determined, would materially and adversely affect its financial condition and the conduct of its business or the ability of the Acquiring Fund to carry out the
transactions contemplated by this Agreement. The Acquiring Fund knows of no facts that might form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree, or judgment of any
court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions contemplated herein.
(f) The
financial statements of the Acquiring Fund for the most recently completed fiscal year are in accordance with generally accepted accounting principles, and such statements (copies of which have been furnished to the Acquired Fund) fairly
reflect the financial condition of the Acquiring Fund as of the end of its most recently completed fiscal year, in all material respects as of that date, and there are no known contingent liabilities of the Acquiring Fund as of that date not
disclosed in such statements.
(g) Since the
end of each Acquiring Fund’s most recently completed fiscal year, there have been no material adverse changes in the Acquiring Fund’s financial condition, assets, liabilities or business (other than changes occurring in the ordinary course of
business), or any incurrence by the Acquiring Fund of material indebtedness, except as otherwise disclosed to and accepted by the Acquired Fund. For the purposes of this subparagraph (g), distributions of net investment income and net realized
capital gains, changes in portfolio securities, changes in market value of portfolio securities, or net redemptions shall not constitute a material adverse change.
(h) All Tax
returns and reports (including, but not limited to, information returns), that are required to have been filed by the Acquiring Fund have been duly and timely filed. All such returns and reports were true, correct and complete as of the time
of their filing, and accurately state the amount of Tax (if any) owed for the periods covered by the returns, or, in the case of information returns, the amount and character of income or other information required to be reported by the
Acquiring Fund. All Taxes due or properly shown to be due on such returns and reports have been paid, or provision has been made and properly accounted therefor. To the knowledge of the LoCorr Trust, no such returns are currently being
audited by any federal, state, local or foreign taxing authority. To the knowledge of the LocCorr Trust, there are no deficiency assessments (or deficiency assessments proposed in writing) with respect to any Taxes of the Acquiring Fund. There
are no levies, liens or encumbrances relating to Taxes existing, threatened or pending with respect to the assets of the Acquiring Fund (other than liens for Taxes not yet due and payable). The Acquiring Fund has not changed its annual
accounting period within the 60-month period ending on the Closing Date.
(i) All issued
and outstanding Acquiring Fund Shares will be, at the Closing Date, validly issued, fully paid and non-assessable by the Acquiring Fund. The Acquiring Fund has no outstanding options, warrants, or other rights to subscribe for or purchase any
Acquiring Fund shares, and there are no outstanding securities convertible into any Acquiring Fund shares.
(j) Acquiring
Fund Shares to be issued and delivered to the Acquired Fund for the account of the Acquired Fund Shareholders pursuant to the terms of this Agreement will, as of the closing, have been duly authorized. When so issued and delivered, such shares
will be duly and validly issued Acquiring Fund Shares, and will be fully paid and non-assessable.
(k) The
execution, delivery, and performance of this Agreement has been duly authorized by all necessary action on the part of the Acquiring Fund, and this Agreement constitutes a valid and binding obligation of the Acquiring Fund, enforceable in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights and to general equity principles.
(l) The
information to be furnished by the Acquiring Fund for use in no-action letters, applications for orders, registration statements, proxy materials, and other documents that may be necessary in connection with the transactions contemplated herein
shall be accurate and complete in all material respects and shall comply in all material respects with federal securities laws and other laws and regulations.
(m) From the
mailing of the N-14 Registration Statement through the time of the meeting of the Acquired Fund Shareholders and on the Closing Date, any written information furnished by the LoCorr Trust with respect to the Acquiring Fund for use in the N-14
Registration Statement, the N-1A Registration Statement or any other materials provided in connection with the Reorganization, does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be
stated or necessary to make the statements, in light of the circumstances under which such statements were made, not materially misleading.
(n) The LoCorr
Trust has in effect an election to treat the Acquiring Fund as a RIC for federal income tax purposes under Part I of Chapter 1, Subchapter M of the Code. The Acquiring Fund is a fund that is treated as a corporation separate from each other
series of the LoCorr Trust under Section 851(g) of the Code. The Acquiring Fund has no earnings and profits accumulated in any taxable year to which the provisions of Part I of Chapter 1, Subchapter M of the Code (or the corresponding
provisions of prior law) did not apply to it. The Acquiring Fund has qualified for treatment as a RIC for each taxable year since its formation (or since it was first treated as a separate corporation under Section 851(g) of the Code) that has
ended prior to the Closing Date and, subject to the accuracy of the representations set forth in paragraph 4.2(m), expects to satisfy the requirements of Part I of Chapter 1, Subchapter M of the Code to maintain such qualification for the
taxable year that includes the Closing Date. Subject to the accuracy of the representations set forth in paragraph 4.2(m), the Acquiring Fund does not expect that the consummation of the transactions contemplated by this Agreement will cause
it to fail to qualify for treatment as a RIC as of the Closing Date or as of the end of its taxable year that includes the Closing Date. The Acquiring Fund has not at any time since its inception been liable for any income or excise tax
pursuant to Sections 852 or 4982 of the Code that has not been timely paid. The Acquiring Fund is in compliance in all material respects with all applicable provisions of the Code and all applicable Treasury regulations pertaining to the
reporting of dividends and other distributions on and redemptions of its shares of beneficial interest and to withholding in respect of dividends and other distributions to shareholders and redemption of shares, and is not liable for any
material penalties that could be imposed thereunder.
(o) The
Acquiring Fund’s investment operations from inception to the date hereof have been in compliance in all material respects with the investment policies and investment restrictions set forth in the Acquiring Fund’s Prospectus, except as
previously disclosed in writing to the Acquired Fund.
(p) The books
and records of the Acquiring Fund, including FASB ASC 000-00-00 (formerly FIN 48) workpapers and supporting statements, made available to the Acquired Fund and/or its counsel, are substantially true and correct and contain no material
misstatements or omissions with respect to the operations of the Acquiring Fund.
(q) The
Acquiring Fund has not waived or extended any applicable statute of limitations with respect to the assessment or collection of Taxes.
(r) The
Acquiring Fund has not received written notification from any taxing authority that asserts a position contrary to any of the above representations set forth in paragraphs (h), (n), (p), and (q) of this Section 4.1.
(s) The
Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act, the 1940 Act, and any state blue sky or securities laws as it may deem appropriate in order to continue its operations
after the Closing Date.
(t) No
governmental consents, approvals, authorizations or filings are required under the 1933 Act, the 1934 Act, the 1940 Act or Delaware law for the execution of this Agreement by the LoCorr Trust, for itself and on behalf of the Acquiring Fund, or
the performance of the Agreement by the LoCorr Trust, for itself and on behalf of the Acquiring Fund, except for the effectiveness of the N-1A Registration Statement and the N-14 Registration Statement and such other consents, approvals,
authorizations and filings as have been made or received, and except for such consents, approvals, authorizations and filings as may be required subsequent to the Closing Date.
ARTICLE V
COVENANTS
COVENANTS
5.1 OPERATION IN
ORDINARY COURSE. Each of the Acquiring Fund and the Acquired Fund will operate their businesses in the ordinary course between the date of this Agreement and the Closing Date, it being understood that such ordinary course of business may
include payment of customary dividends and distributions and shareholder redemptions in the case of an Acquired Fund and redemptions of the Initial Shares in the case of the Acquiring Fund.
5.2 APPROVAL OF
SHAREHOLDERS. The Xxxxxx Trust will call a special meeting of the Acquired Fund’s shareholders to consider and act upon this Agreement and to take all other action necessary to obtain approval of the transactions contemplated herein.
5.3 ADDITIONAL
INFORMATION. The Acquired Fund will assist the Acquiring Fund in obtaining such information as the Acquiring Fund reasonably requests concerning the beneficial ownership of the Acquired Fund’s shares.
5.4 FURTHER
ACTION. Subject to the provisions of this Agreement, the Acquiring Fund and the Acquired 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, including any actions required to be taken after the Closing Date.
5.5 STATEMENT OF
EARNINGS AND PROFITS. As promptly as practicable, but in any case within 60 days after the Closing Date, the Acquired Fund shall furnish the Acquiring Fund, in such form as is reasonably satisfactory to the Acquiring Fund, a statement of the
earnings and profits of the Acquired Fund for federal income tax purposes that will be carried over by the Acquiring Fund, as well as any capital loss carryovers, that will be carried over to the Acquiring Fund as a result of Section 381 of the
Code, and which will be certified by the Xxxxxx Trust’s Treasurer.
5.6 PREPARATION
OF N-14 REGISTRATION STATEMENT. The LoCorr Trust will prepare and file with the SEC a registration statement on Form N-14 (the “N-14 Registration Statement”) relating to the transactions contemplated by this Agreement in compliance with the
1933 Act, the 1934 Act and the 1940 Act. Such N-14 Registration Statement shall be subject to review and comment by the officers of the Xxxxxx Trust and counsel to the Acquired Fund. The Acquired Fund will provide the Acquiring Fund with the
materials and information necessary to prepare the N-14 Registration Statement.
5.7 INDEMNIFICATION.
(a) The
Acquiring Fund (solely out of the Acquiring Fund’s assets and property, including any amounts paid to the Acquiring Fund pursuant to any applicable liability insurance policies or indemnification agreements) agrees to indemnify and hold
harmless the Acquired Fund and the Acquired Fund’s Trustees and officers (collectively, “Acquired Fund Indemnified Persons”) 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 the Acquired Fund or the Acquired Fund Indemnified Persons 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 material breach by the Acquiring Fund of any of its representations, warranties, covenants or agreements set forth in this Agreement.
(b) The Acquired
Fund (solely out of the Acquired Fund’s assets and property, including any amounts paid to the Acquired Fund pursuant to any applicable liability insurance policies or indemnification agreements) agrees to indemnify and hold harmless the
Acquiring Fund and the Acquiring Fund’s Trustees and officers (collectively, “Acquiring Fund Indemnified Persons”) 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 the Acquiring Fund or any of the Acquiring Fund Indemnified Persons 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 material breach by the Acquired Fund of any of its representations, warranties, covenants or agreements set forth in this Agreement.
5.8 On or before
the Closing Date, the Acquired Fund shall have declared and paid to its shareholders of record a dividend or dividends which, together with all previous such dividends, shall have the effect of distributing all of the Acquired Fund’s investment
company taxable income (computed without regard to any deduction for dividends paid), if any, plus the excess of its interest income excludible from gross income under Section 103(a) of the Code over its deductions disallowed under Sections 265
and 171(a)(2) of the Code, if any, for all taxable periods or years ending on or before the Closing Date, and all of its net capital gains realized (after reduction for any capital loss carry forward), if any, in all taxable periods or years
ending on or before the Closing Date.
5.9 TAX
RETURNS. The Xxxxxx Trust covenants that by the time of the Closing, all of the Acquired Fund’s federal and other Tax returns and reports required by law to have been filed on or before the Closing (taking extensions into account) shall have
been filed and all federal and other Taxes (if any) shown as due on said returns shall have either been paid or, if not yet due, adequate liability reserves shall have been provided for the payment of such Taxes.
5.10 CLOSING
DOCUMENTS. At the Closing, the Xxxxxx Trust will provide the LoCorr Trust with the following:
(a) A
certificate, signed by the President and the Treasurer or Assistant Treasurer of the Xxxxxx Trust on behalf of the Acquired Fund, stating the Acquired Fund’s known assets and liabilities, together with information concerning the tax basis and
holding period of the Acquired Fund in all securities or investments transferred to the Acquiring Fund.
(b) A copy of
any Tax books and records of the Acquired Fund necessary for purposes of preparing any Tax returns, schedules, forms, statements or related documents (including but not limited to any income, excise or information returns, as well as any
transfer statements (as described in Treasury regulation Section 1.6045A-1)) required by law to be filed by the Acquiring Fund after the Closing.
(c) A copy
(which may be in electronic form) of the shareholder ledger accounts of the Acquired Fund, including, without limitation, the name, address and taxpayer identification number of each shareholder of record; the number of shares of beneficial
interest held by each shareholder; the dividend reinvestment elections applicable to each shareholder; the backup withholding certifications (e.g., IRS Form W-9) or foreign person certifications (e.g., IRS Form W-8BEN, W-8BEN-E, W-8ECI, or
W-8IMY), notices or records on file with the Acquired Fund with respect to each shareholder; and such information as the LoCorr Trust may reasonably request concerning Acquired Fund Shares or Acquired Fund Shareholders in connection with the
Acquiring Fund’s cost basis reporting and related obligations under Sections 1012, 6045, 6045A, and 6045B of the Code and related Treasury regulations following the Closing for all of the Acquired Fund Shareholders (the “Acquired Fund
Shareholder Documentation”), certified by the Xxxxxx Trust’s transfer agent or its President or its Vice President to the best of their knowledge and belief.
(d) All FASB ASC
000-00-00 (formerly, FIN 48) work papers and supporting statements pertaining to the Acquired Fund.
5.11 The
Acquiring Fund and the Acquired Fund intend that the Reorganization will qualify as a reorganization described in Section 368(a) of the Code. Neither the Acquiring Fund nor the Acquired Fund shall take any action or cause any action to be
taken (including, without limitation the filing of any Tax return) that is inconsistent with such treatment or results in the failure of such Reorganization to qualify as a reorganization described in Section 368(a) of the Code.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired 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 the Acquiring Fund pursuant to this Agreement on or before the Closing Date, and, in addition, subject to the following conditions:
6.1 All
representations, covenants, and warranties of the Acquiring Fund contained in this Agreement shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if made on and as of that Closing Date.
The Acquiring Fund shall have delivered to the Acquired Fund a certificate executed in the Acquiring Fund’s name by the LoCorr Trust’s President or Vice President and its Treasurer or Assistant Treasurer, in form and substance satisfactory to
the Acquired Fund and dated as of the Closing Date, to such effect and as to such other matters as the Acquired Fund shall reasonably request.
6.2 The LoCorr
Trust, on behalf of the Acquiring Fund, shall have executed and delivered to the Xxxxxx Trust an Assumption of Liabilities dated as of the Closing Date pursuant to which the Acquiring Fund will assume all of the Assumed Liabilities of the
Acquired Fund not discharged prior to the Closing Date in accordance with Section 1.3 of this Agreement.
6.3 The Acquired
Fund shall have received on the Closing Date a certificate from the President of the LoCorr Trust, dated as of the Closing Date, addressing the following points:
| (i) |
The LoCorr Trust is a business trust validly existing and in good standing under the laws of the State of Ohio and has the power to own all of its properties and assets and to carry on its business as
presently conducted and described in the registration statement on Form N-1A of the LoCorr Trust, and the Acquiring Fund is a separate series of the LoCorr Trust constituted in accordance with the applicable provisions of the 1940 Act
and the Amended and Restated Agreement and Declaration of Trust of the LoCorr Trust.
|
| (ii) |
The LoCorr Trust is registered with the SEC as an investment company under the 1940 Act and such registration with the SEC is in full force and effect.
|
| (iii) |
The Acquiring Fund Shares to be issued and delivered to the Acquired Fund, as provided by this Agreement, are duly authorized and upon such delivery will be legally issued and outstanding and fully paid and
non-assessable, and no shareholder of the Acquiring Fund has any preemptive rights with respect to Acquiring Fund Shares.
|
| (iv) |
The execution and delivery of this Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the LoCorr Trust’s Amended and Restated Agreement and
Declaration of Trust.
|
| (v) |
The N-14 Registration Statement has been filed with the SEC and no consent, approval, authorization or order of any court or governmental authority under U.S. federal law or the Delaware Statutory Trust Act
is required to be obtained for consummation by the LoCorr Trust and the Acquiring Fund of the transactions contemplated herein, except as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and as may be required
under Delaware securities laws.
|
| (vi) |
To the knowledge of the President of the LoCorr Trust, except as has been disclosed in writing to the Xxxxxx Trust, no litigation or administrative proceeding or investigation of or before any court or
governmental body is presently pending or threatened as to the LoCorr Trust or the Acquiring Fund or any of their properties or assets or any person whom the LoCorr Trust or the Acquiring Fund may be obligated to indemnify in
connection with such litigation, proceeding or investigation, and neither of the LoCorr Trust nor the Acquiring Fund is 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 contemplated hereby.
|
6.4 The N-1A
Registration Statement filed by the LoCorr Trust with the SEC to register the offer of the sale of the Acquiring Fund Shares will be in effect on the Closing Date.
6.5 Subject to
Section 6.3 as of the Closing Date with respect to the Reorganization of the Acquired Fund, there shall have been no material change in the investment objective, policies and restrictions nor any material change in the investment management
fees, fee levels payable pursuant to the shareholder servicing plan, other fees payable for services provided to the Acquiring Fund, or fee waiver or expense reimbursement undertakings of the Acquiring Fund from those fee amounts and
undertakings of the Acquiring Fund described in the N-14 Registration Statement or N-1A Registration Statement.
6.6 The LoCorr
Trust Board of Trustees, including a majority of Trustees who are not "interested persons" of the LoCorr Trust as defined under the 1940 Act, has determined that the transactions contemplated by this Agreement are in the best interests of the
Acquiring Fund and that the interests of the existing shareholders of the Acquiring Fund would not be diluted as a result of such transactions.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquired Fund of all the obligations to be
performed by the Acquired Fund pursuant to this Agreement, on or before the Closing Date and, in addition, shall be subject to the following conditions:
7.1 All
representations, covenants, and warranties of the Acquired Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date, with the same force and effect as if made on and as
of such Closing Date. The Acquired Fund shall have delivered to the Acquiring Fund on such Closing Date a certificate executed in the Acquired Fund’s name by the Xxxxxx Trust’s President or Vice President and its Treasurer or Assistant
Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of such Closing Date, to such effect and as to such other matters as the Acquiring Fund shall reasonably request.
7.2 The Xxxxxx
Trust, on behalf of the Acquired Fund, shall have duly executed and delivered to the LoCorr Trust such bills of sale, assignments, certificates and other instruments of transfer as may be necessary or desirable to transfer all right, title and
interest of the Acquired Fund in and to the Acquired Assets.
7.3 The
Acquiring Fund shall have received on the Closing Date a certification from the President of the Xxxxxx Trust, dated as of the Closing Date, addressing the following points:
| (i) |
The Xxxxxx Trust is a statutory trust validly existing and in good standing under the laws of the State of Delaware and has power to own all of its properties and assets and to carry on its business as
presently conducted and described in the registration statement on Form N-1A of the Xxxxxx Trust, and the Acquired Fund is a separate series of the Xxxxxx Trust constituted in accordance with the applicable provisions of the 1940 Act
and the Amended and Restated Agreement and Declaration of Trust of the Xxxxxx Trust.
|
| (ii) |
The Xxxxxx Trust is registered with the SEC as an investment company under the 1940 Act and such registration with the SEC is in full force and effect.
|
| (iii) |
The Acquired Fund has the power to sell, assign, transfer and deliver its assets to be transferred by it under the Agreement, and, upon consummation of the transactions contemplated hereby, the Acquired Fund
will have transferred such assets to the Acquiring Fund.
|
| (iv) |
The execution and delivery of this Agreement did not, and the consummation of the transactions contemplated herein will not, result in a violation of the Amended and Restated Agreement and Declaration of
Trust of the Xxxxxx Trust.
|
| (v) |
No consent, approval, authorization or order of any court or governmental authority under U.S. federal law or the Delaware Statutory Trust Act is required to be obtained for the consummation by the Xxxxxx
Trust and the Acquired Funds of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and as may be required under Delaware securities laws.
|
| (vi) |
To the knowledge of the President of the Xxxxxx Trust, except as has been disclosed in writing to the LoCorr Trust, no litigation or administrative proceeding or investigation of or before any court or
governmental body is presently pending or threatened as to the Xxxxxx Trust or the Acquired Fund or any of their properties or assets or any person whom the Xxxxxx Trust or the Acquired Fund may be obligated to indemnify in connection
with such litigation, proceeding or investigation, and neither the Xxxxxx Trust nor the Acquired Fund is 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 contemplated hereby.
|
7.4 The Acquired
Fund shall have delivered to the Acquiring Fund (a) a certificate, signed by the President or Vice President and the Treasurer or Assistant Treasurer of the Xxxxxx Trust on behalf of the Acquired Fund, stating the Acquired Fund’s known assets
and liabilities, together with information concerning the tax basis and holding period of the Acquired Fund in all securities or investments transferred to the Acquiring Fund; (b) the Acquired Fund Shareholder Documentation; (c) all FASB ASC
000-00-00 (formerly, FIN 48) work papers; (d) copies of the Tax books and records of the Acquired Fund for purposes of preparing any Tax returns required by law to be filed after the Closing Date; and (e) a statement of earnings and profits of
the Acquired Fund, as described in paragraph 5.5.
7.5 The Xxxxxx
Trust Board of Trustees, including a majority of Trustees who are not "interested persons" of the Xxxxxx Trust as defined under the 1940 Act, has determined that the transactions contemplated by this Agreement are in the best interests of the
Acquired Fund and that the interests of the existing shareholders of the Acquired Fund would not be diluted as a result of such transactions.
ARTICLE VIII
FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
ACQUIRING FUND AND ACQUIRED FUND
FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
ACQUIRING FUND AND ACQUIRED FUND
If any of the conditions set forth below do not exist on or before the Closing Date with respect to the Acquired Fund or the Acquiring Fund, the other party to this Agreement shall, at its
option, not be required to consummate the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in the foregoing, if the conditions stated in paragraphs 8.1 and 8.5 below do not exist on or before the Closing Date
with respect to the Acquired Fund or the Acquiring Fund, the transactions contemplated by this Agreement shall not be consummated:
8.1 This
Agreement and the transactions contemplated herein, with respect to the Acquired Fund, shall have been approved by the requisite vote of the holders of the outstanding shares of the Acquired Fund in accordance with Delaware law and the
provisions of the Amended and Restated Agreement and Declaration of Trust of the Xxxxxx Trust. Certified copies of the resolutions evidencing such approval shall have been delivered to the Acquiring Fund. Notwithstanding anything herein to the
contrary, neither the Acquiring Fund nor the Acquired Fund may waive the conditions set forth in this paragraph 8.1.
8.2 On the
Closing Date, the SEC shall not have issued an unfavorable report under Section 25(b) of the 1940 Act, or instituted any proceeding seeking to enjoin the consummation of the transactions contemplated by this Agreement under Section 25(c) of the
1940 Act. Furthermore, no action, suit or other proceeding shall be threatened or pending before any court or governmental agency in which it is sought to restrain or prohibit or obtain damages or other relief in connection with this Agreement
or the transactions contemplated herein.
8.3 All required
consents of other parties and all other consents, orders, and permits of federal, state and local regulatory authorities (including those of the SEC and of state blue sky securities authorities, including any necessary no-action positions and
exemptive orders from such federal and state authorities) to permit consummation 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 the Acquiring Fund or the Acquired Fund, provided that either party hereto may waive any such conditions for itself.
8.4 The N-14
Registration Statement shall have become effective under the 1933 Act and no stop orders suspending the effectiveness thereof shall have been issued. To the best knowledge of the parties to this Agreement, no investigation or proceeding for
that purpose shall have been instituted or be pending, threatened or contemplated under the 0000 Xxx.
8.5 Any material
differences between the prices of the Acquired Assets determined using the Acquiring Fund’s valuation procedures as compared to the prices of the Acquired Assets determined using the Acquired Fund’s valuation procedures identified pursuant to
paragraph 2.3 of this Agreement shall have been eliminated or otherwise resolved to the reasonable satisfaction of the parties.
8.6 The parties
shall have received an opinion of Xxxxxxxx Xxxx LLP dated as of the Closing Date and addressed to the LoCorr Trust and the Xxxxxx Trust, in a form satisfactory to them, substantially to the effect that, based upon certain facts, qualifications,
certifications, representations and assumptions, for federal income tax purposes:
(a) The
Acquiring Fund’s acquisition of the assets of the Acquired Fund in exchange solely for the Acquiring Fund Shares and the Acquiring Fund’s assumption of the liabilities of the Target Fund, followed by the Target Fund’s distribution of the
Acquiring Fund Shares pro rata to the Acquired Fund’s shareholders actually or constructively in exchange for their Acquired Fund shares in complete liquidation of the Acquired Fund, should qualify as a “reorganization” as defined in Section
368(a)(1) of the Code, and the Acquired Fund and the Acquiring Fund each should be a “party to a reorganization” within the meaning of Section 368(b) of the Code.
(b) No gain or
loss should be recognized by the Acquired Fund upon the transfer of its Acquired Assets to the Acquiring Fund solely in exchange for the Acquiring Fund Shares of the Acquired Fund and the assumption by the Acquiring Fund of all the liabilities
of the Acquired Fund, or upon the distribution of the Acquiring Fund Shares to the Acquired Fund Shareholders of the Acquired Fund, except for (A) gain or loss that may be recognized on the transfer of “section 1256 contracts” as defined in
Section 1256(b) of the Code, (B) gain that may be recognized on the transfer of stock in a “passive foreign investment company” as defined in Section 1297(a) of the Code, and (C) any other gain or loss that may be required to be recognized upon
the transfer of an asset regardless of whether such transfer would otherwise be a non-recognition transaction under the Code;
(c) The tax
basis in the hands of the Acquiring Fund of Acquired Asset transferred from the Acquired Fund to the Acquiring Fund in the Reorganization should be the same as the tax basis of such Acquired Asset in the hands of the Acquired Fund immediately
prior to the transfer thereof, increased by the amount of gain (or decreased by the amount of loss), if any, recognized by the Acquired Fund on the transfer;
(d) The holding
period in the hands of the Acquiring Fund of Acquired Asset transferred from the Acquired Fund to the Acquiring Fund in the Reorganization, other than Acquired Assets with respect to which gain or loss is required to be recognized, should
include in Acquired Fund’s holding period for such Acquired Asset (except where investment activities of the Acquiring Fund have the effect of reducing or eliminating the holding period with respect to an asset);
(e) No gain or
loss should be recognized by the Acquiring Fund upon its receipt of all the Acquired Assets of the Acquired Fund solely in exchange for Acquiring Fund Shares and the assumption by the Acquiring Fund of all the liabilities of the Acquired Fund
as part of the Reorganization;
(f) No gain or
loss should be recognized by the Acquired Fund Shareholders upon the exchange of their Acquired Fund Shares for Acquiring Fund Shares as part of the Reorganization;
(g) The
aggregate tax basis of the Acquiring Fund Shares that each Acquired Fund Shareholder receives in the Reorganization should be the same as the aggregate tax basis of the Acquired Fund Shares exchanged therefor;
(h) Each
Acquired Fund Shareholder’s holding period for the Acquiring Fund Shares received in the Reorganization should include the Acquired Fund Shareholder’s holding period for the Acquired Fund Shares exchanged therefor, provided that the Acquired
Fund Shareholder held such Acquired Fund Shares as capital assets on the date of the exchange; and
(i) The
Acquiring Fund should succeed to and take into account the items of Acquired Fund described in Section 381(c) of the Code, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code and the Regulations
thereunder.
Such opinion shall be based on customary assumptions and shall be conditioned on (1) such representations xx Xxxxxxxx Xxxx LLP may reasonably request (and the Acquired Fund and Acquiring Fund
will cooperate to make and certify the accuracy of such representations) all being true and complete on the Closing Date, and (2) the Reorganization’s consummation in accordance with this Agreement (without the waiver or modification of any terms
or conditions hereof and without taking into account any amendments hereof that Xxxxxxxx Xxxx LLP has not approved).
Notwithstanding anything herein to the contrary, neither the Acquiring Fund nor the Acquired Fund may waive the conditions set forth in this paragraph 8.5.
ARTICLE IX
EXPENSES
EXPENSES
9.1 Except as
otherwise provided for herein, LFM (or any affiliate thereof) shall bear all expenses of the transactions contemplated by this Agreement (other than expenses, if any, of the shareholders). Such expenses include, without limitation: (a)
expenses associated with the preparation and filing of the N-14 Registration Statement; (b) postage; (c) printing; (d) accounting fees; (e) audit and legal fees, including fees of the counsel to the Xxxxxx Trust, counsel to the Independent
Trustees of the Xxxxxx Trust, counsel to the LoCorr Trust, and counsel to the Independent Trustees of the LoCorr Trust; (f) solicitation costs of the transactions; (g) any costs associated with meetings of the Funds’ Boards of Trustees relating
to the transactions contemplated herein, including the preparation of the materials therefor; and (h) any costs associated with the dissolution and deregistration of the Xxxxxx Trust under federal and state law.
LFM (or any affiliate thereof) shall remain so liable for expenses, regardless of whether the transactions contemplated by this Agreement occur, and this Section 9.1 shall survive the Closing and
any termination of this Agreement pursuant to paragraph 11.1. Notwithstanding the foregoing, expenses will in any event be paid by the party directly incurring such expenses if and to the extent that the payment by another person of such expenses
would result in a failure by either the Acquired Fund or the Acquiring Fund to qualify for treatment as a RIC within the meaning of Section 851 of the Code or would prevent the Reorganization from qualifying as a reorganization within the meaning
of Section 368(a) of the Code or otherwise result in the imposition of tax on either the Acquired Fund or the Acquiring Fund or on any of their respective shareholders.
9.2 At the
Closing, LFM (or any affiliate thereof) shall pay the estimated costs of the Reorganization to be paid by it pursuant to paragraph 9.1, and any remaining balance shall be paid by LFM (or any affiliate thereof) and within thirty (30) days after
the Closing.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL
ENTIRE AGREEMENT; SURVIVAL
10.1 The LoCorr
Trust, on behalf of the Acquiring Fund, and the Xxxxxx Trust, on behalf of the Acquired Fund, agree that neither party has made to the other party any representation, warranty and/or covenant not set forth herein and that this Agreement
constitutes the entire agreement between the parties.
10.2 The
representations and warranties contained in this Agreement or in any document delivered pursuant to or in connection with this Agreement, including, without limitation, the indemnification obligations under Section 5.7, shall survive the
consummation of the transactions contemplated hereunder. The covenants to be performed after the Closing Date, and the obligations of the Acquiring Fund, shall continue in effect beyond the consummation of the transactions contemplated
hereunder.
ARTICLE XI
TERMINATION
TERMINATION
11.1 This
Agreement may be terminated by the mutual agreement of the LoCorr Trust and the Xxxxxx Trust. In addition, either the LoCorr Trust or the Xxxxxx Trust may at its option terminate this Agreement at or prior to the Closing Date due to:
(a) a breach by
the other of any representation, warranty, covenant or agreement contained herein to be performed at or prior to the Closing Date, if not cured within 30 days or, in the sole discretion of the non-breaching party’s Board of Trustees, prior to
the Closing Date; or
(b) a condition
herein expressed to be precedent to the obligations of the terminating party that has not been met and it reasonably appears to the terminating party’s Board of Trustees that it will not or cannot be met.
11.2 In the
event of any such termination, in the absence of willful default, there shall be no liability for damages on the part of the Acquiring Fund, the Acquired Fund, the LoCorr Trust, the Xxxxxx Trust, or the respective Trustees or officers to the
other party or its Trustees or officers, but paragraph 9.1 shall continue to apply.
ARTICLE XII
AMENDMENTS
AMENDMENTS
12.1 This
Agreement may be amended, modified, or supplemented in such manner as may be mutually agreed upon in writing by the authorized officers of the Acquired Fund and the Acquiring Fund; provided, however, that following the meeting of the Acquired
Fund Shareholders pursuant to paragraph 5.2 of this Agreement, no such amendment may have the effect of changing any provisions to the detriment of such shareholders.
ARTICLE XIII
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION OF LIABILITY
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION OF LIABILITY
13.1 The Article
and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
13.2 This
Agreement may be executed in any number of counterparts, each of which shall be deemed an original.
13.3 This
Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflicts of laws provisions thereof.
13.4 This
Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns, but, except as provided in this paragraph, 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 their respective
successors and assigns, any rights or remedies under or by reason of this Agreement.
13.5 It is
expressly agreed that the obligations of the Acquiring Fund hereunder shall not be binding upon any of the Trustees, shareholders, officers, agents, or employees of the LoCorr Trust personally, but shall bind only the trust property of the
Acquiring Fund, as provided in the Amended and Restated Agreement and Declaration of Trust of the LoCorr Trust. The execution and delivery of this Agreement have been authorized by the Trustees of the LoCorr Trust on behalf of the Acquiring
Fund and signed by authorized officers of the LoCorr Trust, acting as such. Such authorization by such Trustees and such execution and delivery by such officers shall not be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of the Acquiring Fund as provided in the LoCorr Trust’s Amended and Restated Agreement and Declaration of Trust.
13.6 It is
expressly agreed that the obligations of the Acquired Fund hereunder shall not be binding upon any of the Trustees, shareholders, officers, agents, or employees of the Xxxxxx Trust personally, but shall bind only the trust property of the
Acquired Fund, as provided in the Amended and Restated Agreement and Declaration of Trust of the Xxxxxx Trust. The execution and delivery of this Agreement have been authorized by the Trustees of the Xxxxxx Trust on behalf of the Acquired Fund
and signed by authorized officers of the Xxxxxx Trust, acting as such. Such authorization by such Trustees and such execution and delivery by such officers shall not be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of the Acquired Funds as provided in the Amended and Restated Agreement and Declaration of Trust of the Xxxxxx Trust.
13.7 Both
parties specifically acknowledge and agree that any liability under this Agreement with respect to the Acquiring Fund or Acquired Fund, or in connection with the transactions contemplated herein with respect to the Acquiring Fund or Acquired
Fund, shall be discharged only out of the assets of the Acquiring Fund or Acquired Fund, and that no other series of the LoCorr Trust or the Xxxxxx Trust shall be liable with respect thereto.
ARTICLE XIV
CONFIDENTIALITY
CONFIDENTIALITY
14.1 Each Fund
agrees to treat confidentially and as proprietary information of the other Fund all records and other information, including any information relating to portfolio holdings, of such other Fund and not to use such records and information for any
purpose other than the performance of its duties under this Agreement; provided, however, that after prior notification of and written approval by such other Fund (which approval shall not be withheld if the disclosing Fund would be exposed to
civil or criminal contempt proceedings for failure to comply when requested to divulge such information by duly constituted authorities having proper jurisdiction, and which approval shall not be withheld unreasonably in any other
circumstance), a Fund may disclose such records and/or information as so approved.
ARTICLE XV
COOPERATION AND EXCHANGE OF INFORMATION
COOPERATION AND EXCHANGE OF INFORMATION
15.1 The Xxxxxx
Trust and the LoCorr Trust will provide each other and their respective representatives with such cooperation, assistance and information as either of them reasonably may request of the other in filing any Tax returns, amended Tax returns or
claims for Tax refunds, determining a liability for Taxes or a right to a refund of Taxes, requesting a closing agreement or similar relief from a taxing authority or participating in or conducting any audit or other proceeding in respect of
Taxes, or in determining the financial reporting of any Tax position. Each party or their respective agents will retain for a period of six (6) years following the Closing all returns, schedules and work papers and all material records or
other documents relating to Tax matters and financial reporting of Tax positions of the Acquired Fund and Acquiring Fund for its taxable period first ending after the Closing and for prior taxable periods for which the party is required to
retain records as of the Closing, provided that the Acquired Fund shall not be required to maintain any such documents that it has delivered to the Acquiring Fund.
15.2 Any
reporting responsibility of the Acquired Fund is and shall remain the responsibility of the Acquired Fund, up to and including the date of the Closing, and such later date on which the Acquired Fund is terminated including, without limitation,
responsibility for (i) preparing and filing any Tax returns relating to Tax periods ending on or prior to the date of the Closing (whether due before or after the Closing); and (ii) preparing and filing other documents with the SEC, any state
securities commission, and any federal, state or local tax authorities or any other relevant regulatory authority, except as otherwise is mutually agreed by the parties.
***Signature Page Follows.***
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all as of the date first written above.
XXXXXX ALTERNATIVE INVESTMENT FUNDS
on behalf of the Acquired Fund
By:
Name:
Title:
on behalf of the Acquiring Fund
By:
Name:
Title:
LOCORR FUND MANAGEMENT, LLC
solely with respect to Article IX
By:
Name:
Title:
