Exhibit 99.(4)a
Execution Copy
AGREEMENT AND PLAN OF REORGANIZATION
THIS
AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) is made as of March 10, 2023, by and between abrdn
Global Dynamic Dividend Fund, a Delaware statutory trust (the “Acquiring Fund”), and Delaware Investments® Dividend and
Income Fund, Inc., a Maryland corporation (the “Acquired Fund” and, together with the Acquiring Fund, the “Funds”).
Delaware Management Company, a series of Macquarie Investment Management Business Trust, a Delaware statutory trust, joins this Agreement
solely for purposes of paragraphs 8.2, 11.1, 11.2 and 11.3 and abrdn Inc., a Delaware corporation registered under the Investment Advisers
Act of 1940, joins this Agreement solely for purposes of paragraphs 5.12, 8.2, 11.1, 11.2 and 11.3.
The reorganization will consist
of the transfer of all of the Assets (as defined in paragraph 1.2) of the Acquired Fund to the Acquiring Fund in exchange solely for newly
issued common shares of beneficial interest of the Acquiring Fund, no par value per share (the “Acquiring Fund Shares”), the
assumption by the Acquiring Fund of Liabilities (as defined in paragraph 1.3) of the Acquired Fund, and the distribution of the Acquiring
Fund Shares to the shareholders of the Acquired Fund in exchange for all outstanding Acquired Fund Shares (as defined below) and in complete
liquidation of the Acquired Fund, all upon the terms and conditions hereinafter set forth in this Agreement (the “Reorganization”).
WHEREAS,
the Acquiring Fund and the Acquired Fund are each registered closed-end management investment companies, and the Acquired Fund owns securities
which are assets of the character in which the Acquiring Fund is permitted to invest; and
WHEREAS,
the Acquired Fund is authorized to issue its shares of capital stock and the Acquiring Fund is authorized to issue its shares of beneficial
interest; and
WHEREAS,
the Board of Trustees of the Acquiring Fund and of the Board of Directors of the Acquired Fund have authorized and approved the Reorganization;
and
WHEREAS,
each of Delaware Management Company, a series of Macquarie Investment Management Business Trust, a Delaware statutory trust and the investment
adviser to the Acquired Fund (“Seller”) and abrdn Inc. (“Purchaser”), have entered into a purchase agreement (the
“Purchase Agreement”) pursuant to which Purchaser agreed to acquire, and Seller agreed to sell, certain assets relating to
the Seller’s business with respect to the Acquired Fund; and
WHEREAS,
it is intended that, for United States federal income tax purposes, (i) the transactions contemplated by this Agreement shall qualify
as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the
“Code”), and (ii) that the Agreement shall constitute a “plan of reorganization” for purposes
of the Code;
NOW,
THEREFORE, in consideration of the premises and of the covenants and agreements hereinafter set forth, intending to be legally
bound hereby, the parties hereto covenant and agree as follows:
| 1. | THE REORGANIZATION AND FUND TRANSACTIONS |
1.1. The
Reorganization. Subject to the requisite approvals and other terms and conditions herein set forth and on the basis of the representations
and warranties contained herein, at the Effective Time (as defined in paragraph 2.5), the Acquired Fund shall assign, deliver and otherwise
transfer the Assets (as defined in paragraph 1.2) of the Acquired Fund to the Acquiring Fund, and the Acquiring Fund shall assume the
Liabilities (as defined in paragraph 1.3) of the Acquired Fund. In consideration of the foregoing, at the Effective Time, the Acquiring
Fund shall issue Acquiring Fund Shares to the Acquired Fund. The number of Acquiring Fund Shares to be delivered shall be determined as
set forth in paragraph 2.3.
1.2. Assets
of the Acquired Fund. The assets of the Acquired Fund to be acquired by the Acquiring Fund shall consist of all assets and property
that can legally be transferred whether accrued or contingent, known or unknown, including, without limitation, all cash, cash equivalents,
securities, receivables (including securities, interests and dividends receivable), commodities and futures interests, rights to register
shares under applicable securities laws, any deferred or prepaid expenses shown as an asset on the books of the Acquired Fund at the Effective
Time (as defined in paragraph 2.5), books and records of the Acquired Fund, and any other property owned by the Acquired Fund at the Effective
Time (collectively, the “Assets”). For the avoidance of doubt, Assets shall not include any assets or property that cannot
be transferred to the Acquiring Fund pursuant to applicable law or regulation.
1.3. Liabilities
of the Acquired Fund. The Acquired Fund will use commercially reasonable efforts to discharge all of its known liabilities and
obligations prior to the Effective Time consistent with its obligation to continue its operations and to pursue its investment objective
and strategies in accordance with the terms of its prospectus or as presented in the Proxy Statement/Prospectus (as defined in paragraph
5.6) in connection with the Reorganization. The Acquiring Fund will assume all or substantially all liabilities of the Acquired Fund whether
accrued or contingent, known or unknown (collectively, the “Liabilities”). At and after the Effective Time, the Liabilities
of the Acquired Fund shall become and be the liabilities of the Acquiring Fund and may be enforced against the Acquiring Fund to the extent
as if the same had been incurred by the Acquiring Fund.
1.4. Distribution
of Acquiring Fund Shares. At the Effective Time (or as soon thereafter as is reasonably practicable), the Acquired Fund will distribute
the Acquiring Fund Shares received from the Acquiring Fund pursuant to paragraph 1.1 (cash may be distributed in lieu of fractional Acquiring
Fund Shares, as set forth in paragraph 2.3), pro rata to the record holders of the shares of the Acquired Fund determined as of the Effective
Time (the “Acquired Fund Shareholders”) in complete liquidation of the Acquired Fund. Such distribution and liquidation will
be accomplished by the transfer of the Acquiring Fund Shares then 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. The aggregate net asset
value of the Acquiring Fund Shares to be so credited to Acquired Fund Shareholders shall be equal to the aggregate net asset value of
the then outstanding shares of beneficial interest of the Acquired Fund (the “Acquired Fund Shares”) owned by Acquired Fund
Shareholders at the Effective Time other than with respect to any fractional Acquiring Fund Shares for which cash may be distributed in
lieu thereof, pursuant to paragraph 2.3. All issued and outstanding shares of the Acquired Fund will be canceled on the books of the Acquired
Fund. The Acquiring Fund shall not issue share certificates representing the Acquiring Fund Shares in connection with such exchange.
1.5. Recorded
Ownership of Acquiring Fund Shares. Ownership of Acquiring Fund Shares will be shown on the books of the Acquiring Fund’s
transfer agent.
1.6. Filing
Responsibilities of Acquired Fund. Any reporting responsibility of the Acquired Fund, including, but not limited to, the responsibility
for filing regulatory reports, tax returns, or other documents with the Securities and Exchange Commission (the “Commission”),
the exchange on which the Acquired Fund’s shares are listed, any state securities commission, any state corporate registry, and
any Federal, state or local tax authorities or any other relevant regulatory authority, is and shall remain the responsibility of the
Acquired Fund up to and including the Closing Date (as defined in paragraph 3.1) and such later date as the Acquired Fund’s existence
is terminated.
1.7. Transfer
Taxes. Any transfer taxes payable upon issuance of the 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 issued and transferred.
1.8. Termination.
Promptly after the distribution of Acquiring Fund Shares pursuant to paragraph 1.4, the Acquired Fund shall take, in accordance with Maryland
law and the Investment Company Act of 1940, as amended (the “1940 Act”) all steps as may be necessary or appropriate to effect
a complete deregistration, liquidation and dissolution of the Acquired Fund.
2.1. Net
Asset Value per Acquired Fund Share. The net asset value per Acquired Fund Share shall be computed as of the Effective Time, after
the declaration and payment of any dividends and/or other distributions on that date, using the valuation procedures of the Acquired Fund
adopted by the Acquired Fund’s Board of Directors; provided, however, in the event of any inconsistency, the parties hereto may
confer and mutually agree on the valuation.
2.2. Net
Asset Value per Acquiring Fund Share. The net asset value per Acquiring Fund Share shall be computed as of the Effective Time,
after the declaration and payment of any dividends and/or other distributions on that date, using the valuation procedures of the Acquiring
Fund adopted by the Acquiring Fund’s Board of Trustees; provided, however, in the event of any inconsistency, the parties hereto
may confer and mutually agree on the valuation.
2.3. Calculation
of Number of Acquiring Fund Shares. As of the Effective Time, each Acquired Fund Share outstanding immediately prior to the Effective
Time shall be converted into Acquiring Fund Shares in an amount equal to the ratio of the net asset value per share of the Acquired Fund
determined in accordance with Section 2.1 to the net asset value per share of the Acquiring Fund determined in accordance with Section 2.2.
No fractional Acquiring Fund Shares will be distributed unless such shares are to be held in a Dividend Reinvestment Plan account. In
the event Acquired Fund Shareholders would be entitled to receive fractional Acquiring Fund Shares, the Acquiring Fund’s transfer
agent will aggregate such fractional shares and sell the resulting whole shares on the exchange on which such shares are listed for the
account of all such Acquired Fund Shareholders, and each such Acquired Fund Shareholder will be entitled to a pro rata share of the proceeds
from such sale. With respect to the aggregation and sale of fractional Acquiring Fund Shares, the Acquiring Fund’s transfer agent
will act directly on behalf of the Acquired Fund Shareholders entitled to receive fractional shares and will accumulate such fractional
shares, sell the shares and distribute the cash proceeds net of brokerage commissions, if any, directly to Acquired Fund Shareholders
entitled to receive the fractional shares (without interest and subject to withholding taxes).
2.4. Effective
Time. The Effective Time shall be the time at which the Funds calculate their net asset values as set forth in their respective
prospectuses (normally the close of regular trading on the New York Stock Exchange) on the Closing Date (as defined in paragraph 3.1)
(the “Effective Time”).
3.1. Closing.
The Reorganization, together with related acts necessary to consummate the same (“Closing”), shall occur at the principal
office of the Acquiring Fund or via the electronic exchange of documents on or about March 10, 2023, or such other date or place
as an officer the Acquiring Fund and Acquired Fund may agree in writing and after satisfaction or waiver (to the extent permitted by applicable
law) of the conditions precedent to the Closing set forth in Section 6 of this Agreement (other than those conditions that by their
terms are to be satisfied by actions taken at the Closing, but subject to the satisfaction or, to the extent permitted, waiver of those
conditions at the Closing), immediately after the close of regular trading on the New York Stock Exchange (the “Closing Date”).
All acts taking place at the Closing shall be deemed to take place simultaneously as of the Effective Time.
3.2. Transfer
and Delivery of Assets. The Acquired Fund shall direct The Bank of New York Mellon (“BNY”), as custodian for the Acquired
Fund, to deliver, at the Closing, a certificate of an authorized officer stating that the Assets were delivered in proper form to the
Acquiring Fund at the Effective Time. The Acquired Fund’s portfolio securities represented by a certificate or other written instrument
shall be presented by BNY, on behalf of the Acquired Fund, to State Street Bank and Trust Company (“State Street”), as custodian
for the Acquiring Fund. Such presentation shall be made for examination as soon as reasonably practicable and shall be transferred and
delivered by the Acquired Fund as soon as reasonably practicable for the account of the Acquiring Fund duly endorsed in proper form for
transfer in such condition as to constitute good delivery thereof. BNY, on behalf of the Acquired Fund, shall deliver to State Street,
as custodian of the Acquiring Fund, as of the Effective Time by book entry, in accordance with the customary practices of BNY and of each
securities depository, as defined in Rule 17f-4 under the 1940 Act, in which the Assets are deposited, the Assets deposited with
such depositories. The cash to be transferred by the Acquired Fund shall be delivered by wire transfer of Federal funds at the Effective
Time or by such other manner as State Street, as custodian of the Acquiring Fund, deems appropriate.
3.3. Share
Records. The Acquired Fund shall direct Computershare Inc., in its capacity as transfer agent for the Acquired Fund (the “Transfer
Agent”), to deliver at the Closing a certificate of an authorized officer stating that its records contain the names and addresses
of the Acquired Fund Shareholders and the number and percentage ownership of outstanding Acquired Fund Shares owned by each such Acquired
Fund Shareholder immediately prior to the Closing. The Acquiring Fund shall issue and deliver to the Secretary of the Acquired Fund a
confirmation evidencing that the Transfer Agent has been instructed to credit an appropriate number of Acquiring Fund Shares to the Acquired
Fund as of the Effective Time, or provide other evidence satisfactory to the Acquired Fund as of the Effective Time that such Acquiring
Fund Shares will be credited to the Acquired Fund’s accounts on the books of the Acquiring Fund.
3.4. Postponement
of Effective Time. In the event that at the Effective Time, the primary trading market for portfolio securities of the Acquiring
Fund or the Acquired Fund (the “Market”) shall be closed to trading or trading thereupon shall be restricted, or trading or
the reporting of trading on such Market or elsewhere shall be disrupted so that, in the mutual judgment of the Board of Directors of the
Acquired Fund and the Board of Trustees of the Acquiring Fund, accurate appraisal of the value of the net assets of the Acquired Fund
or the Acquiring Fund, respectively, is impracticable, the Effective Time shall be postponed until the first business day, or other mutually
agreed business day, after the day when trading shall have been fully resumed and reporting shall have been restored.
3.5. Failure
To Deliver Assets. If the Acquired Fund is unable to make delivery pursuant to paragraph 3.2 to the custodian for the Acquiring
Fund of any of the Assets of the Acquired Fund for the reason that any of such Assets have not yet been delivered to it by the Acquired
Fund’s broker, dealer or other counterparty, then, in lieu of such delivery, the Acquired Fund shall deliver, with respect to said
Assets, executed copies of an agreement of assignment and due bills executed on behalf of said broker, dealer or other counterparty, together
with such other documents as may be required by the Acquiring Fund or its custodian, including brokers’ confirmation slips and shall
use its reasonable best efforts to deliver any such Assets to the custodian as soon as reasonably practicable. In addition, with respect
to any Asset that requires additional documentation by an Asset’s issuer or other third party in order to effect a transfer of such
Asset, the Acquired Fund will identify each such asset to the Acquiring Fund on a mutually agreed upon date prior to the Closing Date
and will engage with the Acquiring Fund to complete such documentation as necessary to transfer such Assets to the Acquiring Fund’s
custodian as soon as reasonably practicable.
| 4. | REPRESENTATIONS AND WARRANTIES |
4.1. Representations
and Warranties of the Acquired Fund. Except as has been fully disclosed to the Acquiring Fund as of the date hereof in a written
instrument executed by an officer of the Acquired Fund, the Acquired Fund represents and warrants to the Acquiring Fund as follows:
(a) The
Acquired Fund is a corporation duly organized, validly existing, and in good standing under the laws of the State of Maryland with power
under its Articles of Amendment and Restatement and Amended and Restated By-Laws, each as amended from time to time, to own all of its
properties and assets and to carry on its business as it is presently conducted.
(b) The
Acquired Fund is registered with the Commission as a closed-end management investment company under the 1940 Act, and the registration
of the Acquired Fund Shares under the Securities Act of 1933, as amended (the “1933 Act”), is in full force and effect.
(c) At
the Effective Time, the Acquired Fund will have good and marketable title to the Assets and full right, power, and authority to sell,
assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets,
the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof other than
such restrictions as might arise under the 1933 Act or as otherwise disclosed to the Acquiring Fund.
(d) No
consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquired Fund
of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the Securities Exchange Act of 1934, as
amended (the “1934 Act”), and the 1940 Act, and such as may be required under state securities laws.
(e) The
shareholder reports, marketing and other related materials of the Acquired Fund and each prospectus and statement of additional information
of the Acquired Fund used for a period of six (6) years prior to the date of this Agreement conforms or conformed at the time of
its use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does not or did not at the time of its use include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not materially misleading.
(f) The
Acquired Fund is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a
violation of federal securities laws (including the 1940 Act) or of Maryland law or a material violation of its Articles of Amendment
and Restatement and Amended and Restated By-Laws, or of any agreement, indenture, instrument, contract, lease or other undertaking to
which the Acquired Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any
penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquired Fund is a party or by which
it is bound.
(g) All
material contracts or other commitments of the Acquired Fund (other than this Agreement and investment contracts, including options, futures,
forward contracts and other similar instruments) will terminate without liability or obligation to the Acquired Fund on or prior to the
Effective Time.
(h) Except
as otherwise disclosed to and accepted by the Acquiring Fund in writing, no litigation or administrative proceeding or investigation of
or before any court or governmental body is presently pending or, to the Acquired Fund’s knowledge, threatened against the Acquired
Fund or any of the Acquired Fund’s properties or assets that, if adversely determined, would materially and adversely affect the
Acquired Fund’s financial condition or the conduct of its business. The Acquired Fund knows of no facts which 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
herein contemplated.
(i) The
Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquired Fund
at November 30, 2022, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and are in
accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and
such statements present fairly, in all material respects, the financial condition of the Acquired Fund as of such date in accordance with
GAAP, and there are no known contingent liabilities of the Acquired Fund required to be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of such date not disclosed therein.
(j) Since
November 30, 2022, there has not been any material adverse change 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 indebtedness,
except as otherwise disclosed to by the Acquiring Fund. For the purposes of this subparagraph (j), a decline in net asset value per share
of Acquired Fund Shares due to declines in market values of securities held by the Acquired Fund, the discharge of the Acquired Fund’s
liabilities, or the redemption of the Acquired Fund’s shares by shareholders of the Acquired Fund shall not constitute a material
adverse change.
(k) At
the Effective Time, all material Federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquired
Fund required by law to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct
in all material respects, and all Federal and other taxes shown as due or required to be shown as due on said returns and reports shall
have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment
has been asserted, in writing, with respect to such returns.
(l) The
Acquired Fund has not taken any action and does not know of any fact or circumstance that could reasonably be expected to prevent the
Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(m) The
Acquired Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable
year since its commencement of operations (including the taxable year ending on the Closing Date), the Acquired Fund has met the requirements
of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et
seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code in respect of each
taxable year since its commencement of operations (including the taxable year ending on the closing date) and expects to continue to meet
such requirements at all times through the Closing Date. The Acquired Fund has not at any time since its inception been liable for, nor
is now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. There is no other material tax liability
(including any foreign, state or local tax liability) of the Acquired Fund except as set forth and accrued on the Acquired Fund’s
books. The Acquired Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter
M of the Code did not apply. The Acquired Fund will 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 regulations thereunder.
(n) The
Acquired Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the
reporting of dividends and other distributions on and redemptions of its shares of beneficial interest. To the knowledge of its officers,
the Acquired Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and has withheld in
respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld, and is not liable
for any penalties which could be imposed thereunder. The Acquired Fund is not under audit by any federal, state or local taxing authority
and there are no actual or proposed tax deficiencies with respect to the Acquired Fund that have been presented to the Acquired Fund in
writing.
(o) All
of the issued and outstanding shares of the Acquired Fund will, at the time of Closing, be held by the persons and in the amounts set
forth in the records of the Transfer Agent, on behalf of the Acquired Fund, as provided in paragraph 3.3. The Acquired Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquired Fund, nor is there outstanding
any security convertible into any of the Acquired Fund’s shares.
(p) The
execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action,
if any, on the part of the Directors of the Acquired Fund, and, subject to the approval of the shareholders of the Acquired Fund, this
Agreement will constitute 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.
(q) The
Proxy Statement/Prospectus (as defined in paragraph 5.6), insofar as it relates to the Acquired Fund, will, at the Effective Time: (i) not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements were made, not materially misleading and (ii) comply
in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder;
provided, however, that the representations and warranties of this subparagraph (q) shall not apply to statements in or omissions
from the Proxy Statement/Prospectus made in reliance upon and in conformity with information that was furnished by the Acquiring Fund
for use therein.
4.2. Representations
and Warranties of the Acquiring Fund. Except as has been fully disclosed to the Acquired Fund as of the date hereof in a written
instrument executed by an officer of the Acquiring Fund, Acquiring Fund represents and warrants to the Acquired Fund as follows:
(a) The
Acquiring Fund is a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware with
power under its Agreement and Declaration of Trust and Amended and Restated By-Laws, each as amended from time to time, to own all of
its properties and assets and to carry on its business as it is presently conducted.
(b) The
Acquiring Fund is registered with the Commission as a closed-end management investment company under the 1940 Act, and the registration
of the Acquiring Fund Shares under the 1933 Act is in full force and effect.
(c) The
Acquiring Fund has not taken any action and does not know of any fact or circumstance that could reasonably be expected to prevent the
Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(d) At
the Effective Time, all material Federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquiring
Fund required by law to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct
in all material respects, and all Federal and other taxes shown as due or required to be shown as due on said returns and reports shall
have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment
has been asserted, in writing, with respect to such returns.
(e) The
Acquiring Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable
year since its commencement of operations (including the taxable year ending on the Closing Date), the Acquiring Fund has met the requirements
of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et
seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code and expects to continue
to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable
for, nor is now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. There is no other material
tax liability (including any foreign, state or local tax liability) of the Acquiring Fund except as set forth and accrued on the Acquiring
Fund’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions
of Subchapter M of the Code did not apply. The Acquiring Fund will 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 regulations thereunder.
(f) The
Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the
reporting of dividends and other distributions on and redemptions of its common shares of beneficial interest. To the actual knowledge
of its officers, the Acquiring Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and
has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld,
and is not liable for any penalties which could be imposed thereunder. The Acquiring Fund is not under audit by any federal, state or
local taxing authority and there are no actual or proposed tax deficiencies with respect to the Acquiring Fund that have been presented
to the Acquiring Fund in writing.
(g) No
consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund
of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such
as may be required under state securities laws.
(h) The
shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information
of the Acquiring Fund used at all times prior to the date of this Agreement conforms or conformed at the time of its use in all material
respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations of the Commission
thereunder and does not or did not at the time of its use include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made,
not materially misleading.
(i) The
Acquiring Fund is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a
violation of federal securities laws (including the 1940 Act) or of Delaware law or a material violation of its Agreement and Declaration
of Trust and Amended and Restated By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the
Acquiring Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it
is bound.
(j) Except
as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of
or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring
Fund or any of the Acquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the
Acquiring Fund’s financial condition or the conduct of its business. The Acquiring Fund knows of no facts which 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
herein contemplated.
(k) The
Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquiring
Fund at October 31, 2022, have been audited by KPMG LLP, independent registered public accounting firm, and are in accordance with
GAAP consistently applied, and such statements present fairly, in all material respects, the financial condition of the Acquiring Fund
as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be reflected
on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
(l) Since
October 31, 2022, there has not been any material adverse change 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 indebtedness,
except as otherwise disclosed to by the Acquiring Fund. For the purposes of this subparagraph (l), a decline in net asset value per share
of Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, the discharge of the Acquiring Fund’s
liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquiring Fund shall not constitute a material
adverse change.
(m) The
execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action,
if any, on the part of the Trustees of the Acquiring Fund, and, subject to the approval of the shareholders of the Acquiring Fund, this
Agreement will constitute 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.
(n) The
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 at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and
validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction
in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does
not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquiring Fund, nor is
there outstanding any security convertible into any of the Acquiring Fund’s Shares.
(o) The
Proxy Statement/Prospectus (as defined in paragraph 5.6), insofar as it relates to the Acquiring Fund, will, at the Effective Time: (i) not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements were made, not materially misleading and (ii) comply
in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder;
provided, however, that the representations and warranties of this subparagraph (o) shall not apply to statements in or omissions
from the Proxy Statement/Prospectus made in reliance upon and in conformity with information that was furnished by the Acquired Fund for
use therein.
| 5. | COVENANTS AND AGREEMENTS |
5.1. Conduct
of Business. The Acquiring Fund and the Acquired Fund each will operate its business in the ordinary course consistent with prior
practice between the date hereof and the Effective Time, it being understood that such ordinary course of business will include the declaration
and payment of customary dividends and distributions, and any other distribution that may be advisable. Notwithstanding the forgoing,
the Acquired Fund will manage its portfolio with the same approximate level of trading, turnover and leverage consistent with past practice,
except to the extent agreed in advance with the Acquiring Fund.
5.2. No
Distribution of Acquiring Fund Shares. The Acquired Fund covenants that the Acquiring Fund Shares to be issued hereunder are not
being acquired for the purpose of making any distribution thereof, other than in accordance with the terms of this Agreement.
5.3. 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 Shares.
5.4. Other
Necessary 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.
5.5. Shareholder
Meeting. The Acquired Fund has called a meeting of its shareholders to consider and act upon this Agreement and to take such other
action under applicable federal and state law to obtain approval of the transactions contemplated herein.
5.6. Proxy
Statement/Prospectus. The Acquired Fund has provided the Acquiring Fund with information regarding the Acquired Fund, and the
Acquiring Fund has provided the Acquired Fund with information regarding the Acquiring Fund, reasonably necessary for the preparation
of a Proxy Statement/Prospectus on Form N-14 (the “Proxy Statement/Prospectus”) in compliance with the 1933 Act, the
1934 Act and the 1940 Act.
5.7. Liquidating
Distribution. As soon as is reasonably practicable after the Closing, the Acquired Fund will make a liquidating distribution to
its respective shareholders consisting of the Acquiring Fund Shares received at the Closing.
5.8. Efforts.
The Acquiring Fund and the Acquired Fund shall each use their reasonable best efforts to fulfill or obtain the fulfillment of the conditions
precedent set forth in Article 6 to effect the transactions contemplated by this Agreement as promptly as reasonably practicable;
provided, that neither the Acquiring Fund nor the Acquired Fund shall be obligated to waive any condition precedent.
5.9. Other
Instruments. Each of the Acquired Fund and the Acquiring Fund covenants that it will, from time to time, execute and deliver or
cause to be executed and delivered all such assignments and other instruments, and will take or cause to be taken such further action
as the other party may reasonably deem necessary or desirable in order to vest in and confirm: (a) to the Acquired Fund, title to
and possession of the Acquiring Fund Shares to be delivered hereunder, and (b) to the Acquiring Fund, title to and possession of
all the Assets and assumption of the Liabilities assumed hereunder and otherwise to carry out the intent and purpose of this Agreement.
5.10. Regulatory
Approvals. The Acquiring Fund will use all reasonable efforts to obtain the approvals and authorizations required by the 1933
Act, the 1934 Act, 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 Effective Time.
5.11. Final
Tax Distribution. To the extent necessary to avoid entity-level income or excise tax, the Acquired Fund will declare one
or more dividends payable prior to the time of Closing to its shareholders.
5.12. Section 15(f).
The Acquiring Fund and Purchaser shall from and after the Effective Time comply in all material respects with Section 15(f) of
the 1940 Act and any rules and regulations thereunder.
6.1. Conditions
Precedent to Obligations of Acquired Fund. The obligations of the Acquired Fund to complete the transactions provided for herein
shall be subject, at the Acquired Fund’s election, to the following conditions:
(a) All
representations and warranties of the Acquiring Fund contained in this Agreement shall be true and correct in all material respects as
of the date hereof and, except as they may be affected by the transactions contemplated by this Agreement, as of the Effective Time, with
the same force and effect as if made on and as of the Effective Time.
(b) The
Acquiring Fund shall have delivered to the Acquired Fund a certificate executed in the name of the Acquiring Fund by its President or
Vice President and its Treasurer, in a form reasonably satisfactory to the Acquired Fund, and dated as of the Effective Time, to the effect
that the representations and warranties of the Acquiring Fund, made in this Agreement are true and correct at and as of the Effective
Time, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquired
Fund shall reasonably request.
(c) The
Acquiring Fund shall have performed in all material respects all of the covenants and complied with all of the provisions required by
this Agreement to be performed or complied with by the Acquiring Fund, on or before the Effective Time.
(d) The
Acquired Fund and the Acquiring Fund shall have agreed on the number of Acquiring Fund Shares to be issued in connection with the Reorganization
after such number has been calculated in accordance with paragraph 2.3.
(e) The
Acquired Fund, shall have received on the Closing Date the opinion of Dechert LLP, counsel to the Acquiring Fund (which may reasonably
rely as to matters governed by the laws of the State of Delaware on an opinion of Delaware counsel and/or certificates of officers or
Trustees of the Acquiring Fund) dated as of the Closing Date, covering the following points:
(i) The
Acquiring Fund is a statutory trust duly organized, 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 to carry on its business, including as a registered investment company, and
the Acquiring Fund has all necessary federal, state and local authorizations to carry on its business as now being conducted;
(ii) The
Agreement has been duly authorized, executed and delivered by the Acquiring Fund and, assuming due authorization, execution and delivery
of the Agreement by the Acquired Fund, is a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund
in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors’ rights generally and to general equity principles;
(iii) The
Acquiring Fund Shares to be issued to the Acquired Fund Shareholders as provided by this Agreement are duly authorized, upon such delivery
will be validly issued and outstanding, and are fully paid and non-assessable by the Acquiring Fund, and no shareholder of the Acquiring
Fund has any preemptive rights to subscription or purchase in respect thereof;
(iv) The
execution and delivery of the Agreement did not, and the consummation of the transactions contemplated hereby will not, result in a violation
of the Acquiring Fund’s Agreement and Declaration of Trust or its Amended and Restated By-Laws or a material violation of any provision
of any agreement (known to such counsel) to which the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel,
result in the acceleration of any obligation or the imposition of any penalty under any agreement not disclosed to the Acquired Fund,
judgment or decree to which the Acquiring Fund is a party or by which it is bound;
(v) To
the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States
or the State of Delaware is required to be obtained by the Acquiring Fund in order to consummate the transactions contemplated herein,
except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities
or blue sky laws (other than those of the State of Delaware);
(vi) The
Acquiring Fund is a registered investment company classified as a management company of the closed-end type under the 1940 Act, and its
registration with the Commission as an investment company under the 1940 Act is in full force and effect; and
(vii) To
the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body
is presently pending or threatened as to the Acquiring Fund or any of its properties or assets and the Acquiring Fund 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.
6.2. Conditions
Precedent to Obligations of Acquiring Fund. The obligations of the Acquiring Fund to complete the transactions provided for herein
shall be subject, at the Acquiring Fund’s election, to the following conditions:
(a) All
representations 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, except as they may be affected by the transactions contemplated by this Agreement, as of the Effective Time, with
the same force and effect as if made on and as of the Effective Time.
(b) The
Acquired Fund shall have delivered to the Acquiring Fund a certificate executed in the name of the Acquired Fund by its President or Vice
President and its Treasurer, in a form reasonably satisfactory to the Acquiring Fund and dated as of the Effective Time, to the effect
that the representations and warranties of the Acquired Fund, made in this Agreement are true and correct at and as of the Effective Time,
except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund
shall reasonably request.
(c) The
Acquired Fund shall have performed in all material respects all of the covenants and complied with all of the provisions required by this
Agreement to be performed or complied with by the Acquired Fund, on or before the Effective Time.
(d) The
Acquired Fund and the Acquiring Fund shall have agreed on the number of Acquiring Fund Shares to be issued in connection with the Reorganization
after such number has been calculated in accordance with paragraph 2.3.
(e) The
Acquiring Fund, shall have received on the Closing Date the opinion of Stradley Ronon Stevens & Young, LLP, counsel to the Acquired
Fund (which may reasonably rely as to matters governed by the laws of the State of Maryland on an opinion of Maryland counsel and/or certificates
of officers of the Acquired Fund) dated as of the Closing Date, covering the following points:
(i) The
Acquired Fund is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland and has the
power to own all of its properties and assets and to carry on its business, including as a registered investment company, and the Acquired
Fund has all necessary federal, state and local authorizations to carry on its business as now being conducted;
(ii) The
Agreement has been duly authorized, executed and delivered by the Acquired Fund and, assuming due authorization, execution and delivery
of the Agreement by the Acquiring Fund is a valid and binding obligation of the Acquired Fund enforceable against the Acquired Fund in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to
or affecting creditors’ rights generally and to general equity principles;
(iii) The
execution and delivery of the Agreement did not, and the consummation of the transactions contemplated hereby will not, result in a violation
of the Acquired Fund’s Articles of Amendment and Restatement or its Amended and Restated By-Laws or a material violation of any
provision of any agreement (known to such counsel) to which the Acquired Fund is a party or by which it is bound or, to the knowledge
of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any agreement not disclosed to the
Acquiring Fund, judgment or decree to which the Acquired Fund is a party or by which it is bound;
(iv) To
the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States
or the State of Maryland is required to be obtained by the Acquired Fund in order to consummate the transactions contemplated herein,
except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities
or blue sky laws (other than those of the State of Maryland);
(v) The
Acquired Fund is a registered investment company classified as a management company of the closed-end type under the 1940 Act, and its
registration with the Commission as an investment company under the 1940 Act is in full force and effect;
(vi) The
outstanding shares of the Acquired Fund are registered under the 1933 Act and its registration is in full force and effect; and
(vii) To
the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body
is presently pending or threatened as to the Acquired Fund or any of its properties or assets and the Acquired Fund 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.
6.3. Other
Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective
Time, the Acquired Fund or the Acquiring Fund shall, at its option, not be required to consummate the transactions contemplated by this
Agreement.
(a) The
Agreement and the transactions contemplated herein shall have been approved by (i) the Board of Directors of the Acquired Fund and
(ii) the requisite shareholders of the Acquired Fund, and certified copies of the resolutions of the Board of Directors of the Acquired
Fund evidencing such approvals shall have been delivered to the Acquiring Fund.
(b) Each
of the conditions to Closing (as defined in the Purchase Agreement) set forth in Section 7 of the Purchase Agreement have been satisfied
and the transactions contemplated by the Purchase Agreement will close concurrently with the Closing.
(c) The
Agreement and the transactions contemplated herein shall have been approved by the Board of Trustees of the Acquiring Fund, and certified
copies of the resolutions evidencing such approvals shall have been delivered to the Acquired Fund.
(d) The
Registration Statement on Form N-14 of the Acquiring Fund shall have become effective under the 1933 Act, and no stop orders suspending
the effectiveness thereof shall have been issued.
(e) On
the Closing Date, the Commission 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.
(f) At
the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of the Acquired Fund or the Acquiring Fund,
threatened 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.
(g) All
consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary
by the parties to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except
where failure to obtain any such consent, order or permit would not reasonably be expected to have a material adverse effect on the assets
or properties of the Acquiring Fund or the Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
(h) BNY
shall have delivered such certificates or other documents as set forth in paragraph 3.2.
(i) The
Transfer Agent shall have delivered a certificate of its authorized officer as set forth in paragraph 3.3.
(j) The
Acquiring Fund shall have issued and delivered to the Secretary of the Acquired Fund the confirmation as set forth in paragraph 3.3.
(k) The
parties hereto shall have received the opinion of the law firm of Dechert LLP (based on certain facts, assumptions and representations),
addressed to Acquiring Fund and Acquired Fund, substantially to the effect that, for federal income tax purposes:
(i) The
transfer of the Acquired Fund’s Assets in exchange solely for Acquiring Fund Shares and the assumption by Acquiring Fund of the
Liabilities of the Acquired Fund followed by the distribution by Acquired Fund of Acquiring Fund Shares to the Acquired Fund Shareholders
in exchange for their Acquired Fund Shares in liquidation of Acquired Fund pursuant to and in accordance with the terms of this Agreement
will constitute a “reorganization” within the meaning of Section 368(a)(1) of the Code;
(ii) No
gain or loss will be recognized by Acquiring Fund upon the receipt of the Acquired Fund Assets solely in exchange for Acquiring Fund Shares
and the assumption by Acquiring Fund of the Liabilities of the Acquired Fund;
(iii) No
gain or loss will be recognized by Acquired Fund upon the transfer of the Acquired Fund Assets to Acquiring Fund in exchange solely for
Acquiring Fund Shares and the assumption by Acquiring Fund of the Liabilities or upon the distribution of Acquiring Fund Shares to the
Acquired Fund Shareholders in exchange for their Acquired Fund Shares, except that Acquired Fund may be required to recognize gain or
loss with respect to contracts described in Section 1256(b) of the Code or stock in a passive foreign investment company, as
defined in Section 1297(a) of the Code;
(iv) No
gain or loss will be recognized by the Acquired Fund Shareholders upon the exchange of the Acquired Fund Shares for Acquiring Fund Shares
(except with respect to cash received in lieu of fractional shares);
(v) The
aggregate tax basis for Acquiring Fund Shares received by each Acquired Fund Shareholder pursuant to the Reorganization will be the same
as the aggregate tax basis of the Acquired Fund Shares held by each such Acquired Fund Shareholder immediately prior to the Reorganization
(reduced by any amount of tax basis allocable to fractional shares for which cash is received);
(vi) The
holding period of Acquiring Fund Shares to be received by each Acquired Fund Shareholder will include the period during which the Acquired
Fund Shares surrendered in exchange therefor were held (provided such Acquired Fund Shares were held as capital assets on the date of
the Reorganization);
(vii) Except
for assets which may be marked to market for federal income tax purposes as a consequence of a termination of Acquired Fund’s taxable
year, the tax basis of the Acquired Fund Assets acquired by Acquiring Fund will be the same as the tax basis of such assets to Acquired
Fund in exchange therefor; and
(viii) The
holding period of the Acquired Fund Assets in the hands of Acquiring Fund will include the period during which those assets were held
by Acquired Fund (except where the investment activities of Acquiring Fund have the effect of reducing or eliminating such periods with
respect to an Acquired Fund Asset).
(ix) The
Acquiring Fund will succeed to and take into account the items of Acquired Fund described in Section 381(c) of the Code, subject
to the provisions and limitations specified in Sections 381, 382, 383, and 384 of the Code and the United States Treasury regulations
promulgated thereunder.
Notwithstanding anything
herein to the contrary, neither the Acquiring Fund nor the Acquired Fund, may waive the conditions set forth in this paragraph 6.3(k).
7.1. Indemnification
by the Acquiring Fund. The Acquiring Fund, solely out of its assets and property, agrees to indemnify and hold harmless the Acquired
Fund, and its directors, officers, employees and agents (the “Acquired Fund Indemnified Parties”) 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 Indemnified Parties may become subject, insofar as such loss, claim, damage, liability
or expense (or actions with respect thereto) arises out of or is based on: (a) any breach by the Acquiring Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement or (b) any act, error, omission, neglect, misstatement, materially
misleading statement, breach of duty or other act wrongfully done or attempted to be committed by the Acquiring Fund or the Acquiring
Fund’s trustees, officers, employees or agents prior to the Closing Date, provided that this indemnification shall not apply to
the extent such loss, claim, damage, liability or expense (or actions with respect thereto) shall be due to any negligent, intentional
or fraudulent act, omission or error of the Acquired Fund Indemnified Parties.
7.2. Indemnification
by the Acquired Fund. The Acquired Fund, solely out of its assets and property, agrees to indemnify and hold harmless the Acquiring
Fund, and its trustees, officers, employees and agents (the “Acquiring Fund Indemnified Parties”) 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 Indemnified Parties may become subject, insofar as such loss, claim, damage, liability
or expense (or actions with respect thereto) arises out of or is based on: (a) any breach by the Acquired Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement or (b) any act, error, omission, neglect, misstatement, materially
misleading statement, breach of duty or other act wrongfully done or attempted to be committed by the Acquired Fund or the Acquired Fund’s
directors, officers, employees or agents prior to the Closing Date, provided that this indemnification shall not apply to the extent such
loss, claim, damage, liability or expense (or actions with respect thereto) shall be due to any negligent, intentional or fraudulent act,
omission or error of the Acquiring Fund Indemnified Parties.
7.3. Liability
of the Acquired Fund. The parties understand and agree that the obligations of the Acquired Fund under this Agreement shall not
be binding upon any trustee, shareholder, nominee, officer, agent or employee of or adviser to the Acquired Fund personally, but bind
only the Acquired Fund’s property. Moreover, all persons shall look only to the assets of the Acquired Fund to satisfy the obligations
of the Acquired Fund hereunder. The parties represent that they each have notice of the provisions of the Articles of Amendment and Restatement
of the Acquired Fund disclaiming such shareholder and director liability for acts or obligations of the Acquired Fund.
7.4. Liability
of the Acquiring Fund. The parties understand and agree that the obligations of the Acquiring Fund under this Agreement shall
not be binding upon any trustee, shareholder, nominee, officer, agent or employee of or adviser to the Acquiring Fund personally, but
bind only the Acquiring Fund’s property. Moreover, all persons shall look only to the assets of the Acquiring Fund to satisfy the
obligations of the Acquiring Fund hereunder. The parties represent that they each have notice of the provisions of the Declaration of
Trust of the Acquiring Fund disclaiming such shareholder and trustee liability for acts or obligations of the Acquiring Fund.
| 8. | BROKERAGE FEES AND EXPENSES |
8.1. No
Broker or Finder Fees. The Acquiring Fund and the Acquired Fund represent and warrant to each other that there are no brokers
or finders entitled to receive any payments in connection with the transactions provided for herein,
8.2. Expenses
of Reorganization. All fees and expenses incurred directly in connection with the consummation of the Reorganization and the transactions
contemplated by this Agreement will be borne by the Purchaser and the Seller as agreed between them, without regard to whether the Reorganization
is consummated, as set forth in the Purchase Agreement or otherwise agreed in writing. Notwithstanding the foregoing, to the extent there
are any transaction costs (including brokerage commissions, transaction charges and related fees) associated with the sales and purchases
made in connection with the Reorganizations, these will be borne by the Acquired Fund with respect to the portfolio transitioning conducted
before the Reorganization and borne by the Acquiring Fund with respect to the portfolio transitioning conducted after the Reorganization.
| 9. | AMENDMENTS AND TERMINATION |
9.1. Amendments.
This Agreement may be amended, modified or supplemented in a signed writing in such manner as may be deemed necessary or advisable by
the authorized officers of each party, on behalf of either the Acquired Fund and the Acquiring Fund; provided, however, that following
a meeting of the shareholders of the Acquired Fund called by the Board of Directors of the Acquired Fund pursuant to paragraph 6.3(a) of
this Agreement, no such amendment may have the effect of changing the provisions for determining the number of Acquiring Fund Shares to
be issued to the Acquired Fund Shareholders under this Agreement to the detriment of the shareholders of the Acquired Fund without the
approval of the Board of Directors of the Acquired Fund and the Board of Trustees of the Acquiring Fund and the Acquired Fund Shareholders
and, further provided, that the officers of the Acquired Fund and the Acquiring Fund may change the Effective Time and Closing Date through
an agreement in writing without additional specific authorization by their respective Board of Trustees.
9.2. Termination.
This Agreement may be terminated and the transactions contemplated hereby may be abandoned by mutual agreement of the parties, at any
time prior to the Effective Time, if circumstances should develop that, in the opinion of the Board of Trustees of the Acquiring Fund
and the Board of Directors of the Acquired Fund, make proceeding with the Agreement inadvisable. In addition, either the Acquiring Fund
or the Acquired Fund may at its option terminate this Agreement at or before the Closing Date due to: a breach by the other of any representation,
warranty, or agreement contained herein to be performed at or before the Closing Date which breach would give rise to the failure of a
condition set forth in Sections 6.1, 6.2 or 6.3, if not cured within 30 days after being provided notice by the non-breaching party. Notwithstanding
the foregoing, if Purchaser validly terminates the Purchase Agreement, the Acquiring Fund shall be entitled to terminate this Agreement
by providing written notice to the Acquired Fund, and if Seller validly terminates the Purchase Agreement, the Acquired Fund shall be
entitled to terminate this Agreement by providing written notice to the Acquiring Fund. In the event of any such termination, in the absence
of willful default or breach, there shall be no liability for damages on the part of any of the Acquiring Fund, the Acquired Fund or their
respective Trustees, Directors or officers, to the other party or its Trustees, Directors or officers.
Any notice, report, statement
or demand required or permitted by any provisions of this Agreement shall be in writing and shall be given by facsimile, electronic delivery
(i.e., e-mail) personal service or prepaid or certified mail addressed as follows:
If to the Acquired Fund:
Delaware Investments® Dividend and Income Fund, Inc.
610 Market Street
Philadelphia, PA 19106-2354
Attention: David F. Connor, Esq.
With copies (which shall not constitute notice) to:
Stradley Ronon Stevens & Young, LLP
2005 Market Street, Suite 2600
Philadelphia, PA 19103-7018
Attention: Michael Mabry, Esq. and E. Taylor Brody, Esq.
If to the Acquiring Fund:
abrdn Global Dynamic Dividend Fund
1900 Market Street, Suite 200
Philadelphia, PA 19103
Attention: Lucia Sitar, Esq.
With copies (which shall not constitute notice) to:
Dechert LLP
1900 K Street NW
Washington, D.C. 20006
Attention: Thomas C. Bogle, Esq. and William J. Bielefeld, Esq.
| 11. | PUBLICITY AND CONFIDENTIALITY |
11.1. Any
public announcements or similar publicity with respect to this Agreement or the transactions contemplated herein will be made at such
time and in such manner as the Acquired Fund, the Acquiring Fund, Purchaser and Seller mutually shall agree, provided that nothing herein
shall prevent either party from making such public announcements as may be required by law, in which case the party issuing such statement
or communication shall advise the other party prior to such issuance.
11.2. The
Acquired Fund, Acquiring Fund, Purchaser and Seller (for purposes of the paragraph 11.2, the “Protected Persons”) will hold,
and will cause their board members, officers, employees, representatives, agents and affiliates to hold, in strict confidence, and not
disclose to any other person, and not use in any way except in connection with the transactions herein contemplated, without the prior
written consent of the other Protected Persons, all non-public, confidential or proprietary information obtained from the other Protected
Persons in connection with the transactions contemplated by this Agreement, except such information may be disclosed: (i) to governmental
or regulatory bodies, and, where necessary, to any other person in connection with the obtaining of consents or waivers as contemplated
by this Agreement; (ii) if required by court order or decree or applicable law; (iii) if it is publicly available through no
act or failure to act of such party; (iv) if it was already known to such party on a non-confidential basis on the date of receipt;
(v) during the course of or in connection with any litigation, government investigation, arbitration, or other proceedings based
upon or in connection with the subject matter of this Agreement, including, without limitation, the failure of the transactions contemplated
hereby to be consummated; or (vi) if it is otherwise expressly provided for herein.
11.3. In
the event of a termination of this Agreement, the Acquiring Fund, the Acquired Fund Purchaser and Seller agree that they along with their
board members, employees, representative agents and affiliates shall, and shall cause their affiliates to, except with the prior written
consent of the other Protected Persons, keep secret and retain in strict confidence, and not use for the benefit of itself or themselves,
nor disclose to any other persons, any and all non-public, confidential or proprietary information relating to the other Protected Persons
and their affiliates, whether obtained through their due diligence investigation, this Agreement or otherwise, except such information
may be disclosed: (i) if required by court order or decree or applicable law; (ii) if it is publicly available through no act
or failure to act of such party; (iii) if it was already known to such party on a non-confidential basis on the date of receipt;
(iv) during the course of or in connection with any litigation, government investigation, arbitration, or other proceedings based
upon or in connection with the subject matter of this Agreement, including, without limitation, the failure of the transactions contemplated
hereby to be consummated; or (v) if it is otherwise expressly provided for herein.
12.1. Entire
Agreement. The parties agree that neither party has made any representation, warranty or covenant not set forth herein, and that
this Agreement constitutes the entire agreement between the parties.
12.2. Survival.
The representations, warranties and covenants contained in this Agreement or in any document delivered pursuant hereto or in connection
herewith, and the obligations with respect to indemnification of the Acquired Fund and Acquiring Fund contained in paragraphs 7.1 and
7.2, shall survive the Closing.
12.3. Headings.
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.
12.4. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of laws.
12.5. Assignment.
This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns, but no assignment
or transfer hereof or of any rights or obligations hereunder shall be made by any party without the written consent of the other party.
Nothing herein expressed or implied is intended or shall be construed to confer upon or give any person, firm or corporation, other than
the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement.
12.6. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all taken together shall constitute
one agreement.
12.7. Waiver.
At any time before the Closing Date, any of the terms or conditions of this Agreement may be waived by either the Acquired Fund Board
or the Acquiring Fund Board (whichever is entitled to the benefit thereof), if, in the judgment of such board after consultation with
fund counsel, such action or waiver will not have a material adverse effect on the benefits intended in this Agreement to the shareholders
of their respective fund, on behalf of which such action is taken.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written.
| DELAWARE INVESTMENTS®
DIVIDEND AND INCOME FUND, INC. |
|
ABRDN GLOBAL DYNAMIC DIVIDEND FUND |
| |
|
|
| By: |
/s/Richard
Salus |
|
By: |
/s/Lucia
Sitar |
| Name: |
Richard Salus |
|
Name: |
Lucia Sitar |
| Title: |
Senior Vice President/Chief Financial Officer |
|
Title: |
Vice President |
| |
|
|
| DELAWARE MANAGEMENT COMPANY, A SERIES
OF MACQUARIE INVESTMENT MANAGEMENT BUSINESS TRUST agrees to the
provisions of paragraphs 8.2, 11.1, 11.2 and 11.3 herein: |
|
ABRDN INC. agrees
to the provisions of paragraphs 5.12, 8.2, 11.1, 11.2 and 11.3 herein: |
| |
|
|
| By: |
/s/Richard
Salus |
|
By: |
/s/Lucia
Sitar |
| Name: |
Richard Salus |
|
Name: |
Lucia Sitar |
| Title: |
Senior Vice President |
|
Title: |
Vice President |
Execution Copy
AGREEMENT AND PLAN OF REORGANIZATION
THIS
AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) is made as of March 10, 2023, by and between abrdn
Global Dynamic Dividend Fund, a Delaware statutory trust (the “Acquiring Fund”), and Delaware Enhanced Global Dividend and
Income Fund, a Delaware statutory trust (the “Acquired Fund” and, together with the Acquiring Fund, the “Funds”).
Delaware Management Company, a series of Macquarie Investment Management Business Trust, a Delaware statutory trust, joins this Agreement
solely for purposes of paragraphs 8.2, 11.1, 11.2 and 11.3 and abrdn Inc., a Delaware corporation registered under the Investment Advisers
Act of 1940, joins this Agreement solely for purposes of paragraphs 5.12, 8.2, 11.1, 11.2 and 11.3.
The reorganization will consist
of the transfer of all of the Assets (as defined in paragraph 1.2) of the Acquired Fund to the Acquiring Fund in exchange solely for newly
issued common shares of beneficial interest of the Acquiring Fund, no par value per share (the “Acquiring Fund Shares”), the
assumption by the Acquiring Fund of Liabilities (as defined in paragraph 1.3) of the Acquired Fund, and the distribution of the Acquiring
Fund Shares to the shareholders of the Acquired Fund in exchange for all outstanding Acquired Fund Shares (as defined below) and in complete
liquidation of the Acquired Fund, all upon the terms and conditions hereinafter set forth in this Agreement (the “Reorganization”).
WHEREAS,
the Acquiring Fund and the Acquired Fund are each registered closed-end management investment companies, and the Acquired Fund owns securities
which are assets of the character in which the Acquiring Fund is permitted to invest; and
WHEREAS,
both the Acquired Fund and the Acquiring Fund are authorized to issue their shares of beneficial interest; and
WHEREAS,
the Board of Trustees of the Acquiring Fund and of the Board of Trustees of the Acquired Fund have authorized and approved the Reorganization;
and
WHEREAS,
each of Delaware Management Company, a series of Macquarie Investment Management Business Trust, a Delaware statutory trust and the investment
adviser to the Acquired Fund (“Seller”) and abrdn Inc. (“Purchaser”), have entered into a purchase agreement (the
“Purchase Agreement”) pursuant to which Purchaser agreed to acquire, and Seller agreed to sell, certain assets relating to
the Seller’s business with respect to the Acquired Fund; and
WHEREAS,
it is intended that, for United States federal income tax purposes, (i) the transactions contemplated by this Agreement shall qualify
as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the
“Code”), and (ii) that the Agreement shall constitute a “plan of reorganization” for purposes
of the Code;
NOW,
THEREFORE, in consideration of the premises and of the covenants and agreements hereinafter set forth, intending to be legally
bound hereby, the parties hereto covenant and agree as follows:
| 1. | THE REORGANIZATION AND FUND TRANSACTIONS |
1.1. The
Reorganization. Subject to the requisite approvals and other terms and conditions herein set forth and on the basis of the representations
and warranties contained herein, at the Effective Time (as defined in paragraph 2.5), the Acquired Fund shall assign, deliver and otherwise
transfer the Assets (as defined in paragraph 1.2) of the Acquired Fund to the Acquiring Fund, and the Acquiring Fund shall assume the
Liabilities (as defined in paragraph 1.3) of the Acquired Fund. In consideration of the foregoing, at the Effective Time, the Acquiring
Fund shall issue Acquiring Fund Shares to the Acquired Fund. The number of Acquiring Fund Shares to be delivered shall be determined as
set forth in paragraph 2.3.
1.2. Assets
of the Acquired Fund. The assets of the Acquired Fund to be acquired by the Acquiring Fund shall consist of all assets and property
that can legally be transferred whether accrued or contingent, known or unknown, including, without limitation, all cash, cash equivalents,
securities, receivables (including securities, interests and dividends receivable), commodities and futures interests, rights to register
shares under applicable securities laws, any deferred or prepaid expenses shown as an asset on the books of the Acquired Fund at the Effective
Time (as defined in paragraph 2.5), books and records of the Acquired Fund, and any other property owned by the Acquired Fund at the Effective
Time (collectively, the “Assets”). For the avoidance of doubt, Assets shall not include any assets or property that cannot
be transferred to the Acquiring Fund pursuant to applicable law or regulation.
1.3. Liabilities
of the Acquired Fund. The Acquired Fund will use commercially reasonable efforts to discharge all of its known liabilities and
obligations prior to the Effective Time consistent with its obligation to continue its operations and to pursue its investment objective
and strategies in accordance with the terms of its prospectus or as presented in the Proxy Statement/Prospectus (as defined in paragraph
5.6) in connection with the Reorganization. The Acquiring Fund will assume all or substantially all liabilities of the Acquired Fund whether
accrued or contingent, known or unknown (collectively, the “Liabilities”). At and after the Effective Time, the Liabilities
of the Acquired Fund shall become and be the liabilities of the Acquiring Fund and may be enforced against the Acquiring Fund to the extent
as if the same had been incurred by the Acquiring Fund.
1.4. Distribution
of Acquiring Fund Shares. At the Effective Time (or as soon thereafter as is reasonably practicable), the Acquired Fund will distribute
the Acquiring Fund Shares received from the Acquiring Fund pursuant to paragraph 1.1 (cash may be distributed in lieu of fractional Acquiring
Fund Shares, as set forth in paragraph 2.3), pro rata to the record holders of the shares of the Acquired Fund determined as of the Effective
Time (the “Acquired Fund Shareholders”) in complete liquidation of the Acquired Fund. Such distribution and liquidation will
be accomplished by the transfer of the Acquiring Fund Shares then 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. The aggregate net asset
value of the Acquiring Fund Shares to be so credited to Acquired Fund Shareholders shall be equal to the aggregate net asset value of
the then outstanding shares of beneficial interest of the Acquired Fund (the “Acquired Fund Shares”) owned by Acquired Fund
Shareholders at the Effective Time other than with respect to any fractional Acquiring Fund Shares for which cash may be distributed in
lieu thereof, pursuant to paragraph 2.3. All issued and outstanding shares of the Acquired Fund will be canceled on the books of the Acquired
Fund. The Acquiring Fund shall not issue share certificates representing the Acquiring Fund Shares in connection with such exchange.
1.5. Recorded
Ownership of Acquiring Fund Shares. Ownership of Acquiring Fund Shares will be shown on the books of the Acquiring Fund’s
transfer agent.
1.6. Filing
Responsibilities of Acquired Fund. Any reporting responsibility of the Acquired Fund, including, but not limited to, the responsibility
for filing regulatory reports, tax returns, or other documents with the Securities and Exchange Commission (the “Commission”),
the exchange on which the Acquired Fund’s shares are listed, any state securities commission, any state corporate registry, and
any Federal, state or local tax authorities or any other relevant regulatory authority, is and shall remain the responsibility of the
Acquired Fund up to and including the Closing Date (as defined in paragraph 3.1) and such later date as the Acquired Fund’s existence
is terminated.
1.7. Transfer
Taxes. Any transfer taxes payable upon issuance of the 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 issued and transferred.
1.8 Termination.
Promptly after the distribution of Acquiring Fund Shares pursuant to paragraph 1.4, the Acquired Fund shall take, in accordance with Maryland
law and the Investment Company Act of 1940, as amended (the “1940 Act”) all steps as may be necessary or appropriate to effect
a complete deregistration, liquidation and dissolution of the Acquired Fund.
2.1. Net
Asset Value per Acquired Fund Share. The net asset value per Acquired Fund Share shall be computed as of the Effective Time, after
the declaration and payment of any dividends and/or other distributions on that date, using the valuation procedures of the Acquired Fund
adopted by the Acquired Fund’s Board of Trustees; provided, however, in the event of any inconsistency, the parties hereto may confer
and mutually agree on the valuation.
2.2. Net
Asset Value per Acquiring Fund Share. The net asset value per Acquiring Fund Share shall be computed as of the Effective Time,
after the declaration and payment of any dividends and/or other distributions on that date, using the valuation procedures of the Acquiring
Fund adopted by the Acquiring Fund’s Board of Trustees; provided, however, in the event of any inconsistency, the parties hereto
may confer and mutually agree on the valuation.
2.3. Calculation
of Number of Acquiring Fund Shares. As of the Effective Time, each Acquired Fund Share outstanding immediately prior to the Effective
Time shall be converted into Acquiring Fund Shares in an amount equal to the ratio of the net asset value per share of the Acquired Fund
determined in accordance with Section 2.1 to the net asset value per share of the Acquiring Fund determined in accordance with Section 2.2.
No fractional Acquiring Fund Shares will be distributed unless such shares are to be held in a Dividend Reinvestment Plan account. In
the event Acquired Fund Shareholders would be entitled to receive fractional Acquiring Fund Shares, the Acquiring Fund’s transfer
agent will aggregate such fractional shares and sell the resulting whole shares on the exchange on which such shares are listed for the
account of all such Acquired Fund Shareholders, and each such Acquired Fund Shareholder will be entitled to a pro rata share of the proceeds
from such sale. With respect to the aggregation and sale of fractional Acquiring Fund Shares, the Acquiring Fund’s transfer agent
will act directly on behalf of the Acquired Fund Shareholders entitled to receive fractional shares and will accumulate such fractional
shares, sell the shares and distribute the cash proceeds net of brokerage commissions, if any, directly to Acquired Fund Shareholders
entitled to receive the fractional shares (without interest and subject to withholding taxes).
2.4. Effective
Time. The Effective Time shall be the time at which the Funds calculate their net asset values as set forth in their respective
prospectuses (normally the close of regular trading on the New York Stock Exchange) on the Closing Date (as defined in paragraph 3.1)
(the “Effective Time”).
3.1. Closing.
The Reorganization, together with related acts necessary to consummate the same (“Closing”), shall occur at the principal
office of the Acquiring Fund or via the electronic exchange of documents on or about March 10, 2023, or such other date or place
as an officer the Acquiring Fund and Acquired Fund may agree in writing and after satisfaction or waiver (to the extent permitted by applicable
law) of the conditions precedent to the Closing set forth in Section 6 of this Agreement (other than those conditions that by their
terms are to be satisfied by actions taken at the Closing, but subject to the satisfaction or, to the extent permitted, waiver of those
conditions at the Closing), immediately after the close of regular trading on the New York Stock Exchange (the “Closing Date”).
All acts taking place at the Closing shall be deemed to take place simultaneously as of the Effective Time.
3.2. Transfer
and Delivery of Assets. The Acquired Fund shall direct The Bank of New York Mellon (“BNY”), as custodian for the Acquired
Fund, to deliver, at the Closing, a certificate of an authorized officer stating that the Assets were delivered in proper form to the
Acquiring Fund at the Effective Time. The Acquired Fund’s portfolio securities represented by a certificate or other written instrument
shall be presented by BNY, on behalf of the Acquired Fund, to State Street Bank and Trust Company (“State Street”), as custodian
for the Acquiring Fund. Such presentation shall be made for examination as soon as reasonably practicable and shall be transferred and
delivered by the Acquired Fund as soon as reasonably practicable for the account of the Acquiring Fund duly endorsed in proper form for
transfer in such condition as to constitute good delivery thereof. BNY, on behalf of the Acquired Fund, shall deliver to State Street,
as custodian of the Acquiring Fund, as of the Effective Time by book entry, in accordance with the customary practices of BNY and of each
securities depository, as defined in Rule 17f-4 under the 1940 Act, in which the Assets are deposited, the Assets deposited with
such depositories. The cash to be transferred by the Acquired Fund shall be delivered by wire transfer of Federal funds at the Effective
Time or by such other manner as State Street, as custodian of the Acquiring Fund, deems appropriate.
3.3. Share
Records. The Acquired Fund shall direct Computershare Inc., in its capacity as transfer agent for the Acquired Fund (the “Transfer
Agent”), to deliver at the Closing a certificate of an authorized officer stating that its records contain the names and addresses
of the Acquired Fund Shareholders and the number and percentage ownership of outstanding Acquired Fund Shares owned by each such Acquired
Fund Shareholder immediately prior to the Closing. The Acquiring Fund shall issue and deliver to the Secretary of the Acquired Fund a
confirmation evidencing that the Transfer Agent has been instructed to credit an appropriate number of Acquiring Fund Shares to the Acquired
Fund as of the Effective Time, or provide other evidence satisfactory to the Acquired Fund as of the Effective Time that such Acquiring
Fund Shares will be credited to the Acquired Fund’s accounts on the books of the Acquiring Fund.
3.4. Postponement
of Effective Time. In the event that at the Effective Time, the primary trading market for portfolio securities of the Acquiring
Fund or the Acquired Fund (the “Market”) shall be closed to trading or trading thereupon shall be restricted, or trading or
the reporting of trading on such Market or elsewhere shall be disrupted so that, in the mutual judgment of the Board of Trustees of the
Acquired Fund and the Board of Trustees of the Acquiring Fund, accurate appraisal of the value of the net assets of the Acquired Fund
or the Acquiring Fund, respectively, is impracticable, the Effective Time shall be postponed until the first business day, or other mutually
agreed business day, after the day when trading shall have been fully resumed and reporting shall have been restored.
3.5. Failure
To Deliver Assets. If the Acquired Fund is unable to make delivery pursuant to paragraph 3.2 to the custodian for the Acquiring
Fund of any of the Assets of the Acquired Fund for the reason that any of such Assets have not yet been delivered to it by the Acquired
Fund’s broker, dealer or other counterparty, then, in lieu of such delivery, the Acquired Fund shall deliver, with respect to said
Assets, executed copies of an agreement of assignment and due bills executed on behalf of said broker, dealer or other counterparty, together
with such other documents as may be required by the Acquiring Fund or its custodian, including brokers’ confirmation slips and shall
use its reasonable best efforts to deliver any such Assets to the custodian as soon as reasonably practicable. In addition, with respect
to any Asset that requires additional documentation by an Asset’s issuer or other third party in order to effect a transfer of such
Asset, the Acquired Fund will identify each such asset to the Acquiring Fund on a mutually agreed upon date prior to the Closing Date
and will engage with the Acquiring Fund to complete such documentation as necessary to transfer such Assets to the Acquiring Fund’s
custodian as soon as reasonably practicable.
| 4. | REPRESENTATIONS AND WARRANTIES |
4.1. Representations
and Warranties of the Acquired Fund. Except as has been fully disclosed to the Acquiring Fund as of the date hereof in a written
instrument executed by an officer of the Acquired Fund, the Acquired Fund represents and warrants to the Acquiring Fund as follows:
(a) The
Acquired Fund is a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware with
power under its Amended and Restated Declaration of Trust and Amended and Restated By-Laws, each as amended from time to time, to own
all of its properties and assets and to carry on its business as it is presently conducted.
(b) The
Acquired Fund is registered with the Commission as a closed-end management investment company under the 1940 Act, and the registration
of the Acquired Fund Shares under the Securities Act of 1933, as amended (the “1933 Act”), is in full force and effect.
(c) At
the Effective Time, the Acquired Fund will have good and marketable title to the Assets and full right, power, and authority to sell,
assign, transfer and deliver such Assets hereunder free of any liens or other encumbrances, and upon delivery and payment for such Assets,
the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof other than
such restrictions as might arise under the 1933 Act or as otherwise disclosed to the Acquiring Fund.
(d) No
consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquired Fund
of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the Securities Exchange Act of 1934, as
amended (the “1934 Act”), and the 1940 Act, and such as may be required under state securities laws.
(e) The
shareholder reports, marketing and other related materials of the Acquired Fund and each prospectus and statement of additional information
of the Acquired Fund used for a period of six (6) years prior to the date of this Agreement conforms or conformed at the time of
its use in all material respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does not or did not at the time of its use include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not materially misleading.
(f) The
Acquired Fund is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a
violation of federal securities laws (including the 1940 Act) or of Delaware law or a material violation of its Amended and Restated Declaration
of Trust and Amended and Restated By-Laws, or of any agreement, indenture, instrument, contract, lease or other undertaking to which the
Acquired Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any penalty, under
any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquired Fund is a party or by which it is bound.
(g) All
material contracts or other commitments of the Acquired Fund (other than this Agreement and investment contracts, including options, futures,
forward contracts and other similar instruments) will terminate without liability or obligation to the Acquired Fund on or prior to the
Effective Time.
(h) Except
as otherwise disclosed to and accepted by the Acquiring Fund in writing, no litigation or administrative proceeding or investigation of
or before any court or governmental body is presently pending or, to the Acquired Fund’s knowledge, threatened against the Acquired
Fund or any of the Acquired Fund’s properties or assets that, if adversely determined, would materially and adversely affect the
Acquired Fund’s financial condition or the conduct of its business. The Acquired Fund knows of no facts which 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
herein contemplated.
(i) The
Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquired Fund
at November 30, 2022, have been audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, and are in
accordance with accounting principles generally accepted in the United States of America (“GAAP”) consistently applied, and
such statements present fairly, in all material respects, the financial condition of the Acquired Fund as of such date in accordance with
GAAP, and there are no known contingent liabilities of the Acquired Fund required to be reflected on a balance sheet (including the notes
thereto) in accordance with GAAP as of such date not disclosed therein.
(j) Since
November 30, 2022, there has not been any material adverse change 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 indebtedness,
except as otherwise disclosed to by the Acquiring Fund. For the purposes of this subparagraph (j), a decline in net asset value per share
of Acquired Fund Shares due to declines in market values of securities held by the Acquired Fund, the discharge of the Acquired Fund’s
liabilities, or the redemption of the Acquired Fund’s shares by shareholders of the Acquired Fund shall not constitute a material
adverse change.
(k) At
the Effective Time, all material Federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquired
Fund required by law to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct
in all material respects, and all Federal and other taxes shown as due or required to be shown as due on said returns and reports shall
have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment
has been asserted, in writing, with respect to such returns.
(l) The
Acquired Fund has not taken any action and does not know of any fact or circumstance that could reasonably be expected to prevent the
Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(m) The
Acquired Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable
year since its commencement of operations (including the taxable year ending on the Closing Date), the Acquired Fund has met the requirements
of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et
seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code in respect of each
taxable year since its commencement of operations (including the taxable year ending on the closing date) and expects to continue to meet
such requirements at all times through the Closing Date. The Acquired Fund has not at any time since its inception been liable for, nor
is now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. There is no other material tax liability
(including any foreign, state or local tax liability) of the Acquired Fund except as set forth and accrued on the Acquired Fund’s
books. The Acquired Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions of Subchapter
M of the Code did not apply. The Acquired Fund will 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 regulations thereunder.
(n) The
Acquired Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the
reporting of dividends and other distributions on and redemptions of its shares of beneficial interest. To the knowledge of its officers,
the Acquired Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and has withheld in
respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld, and is not liable
for any penalties which could be imposed thereunder. The Acquired Fund is not under audit by any federal, state or local taxing authority
and there are no actual or proposed tax deficiencies with respect to the Acquired Fund that have been presented to the Acquired Fund in
writing.
(o) All
of the issued and outstanding shares of the Acquired Fund will, at the time of Closing, be held by the persons and in the amounts set
forth in the records of the Transfer Agent, on behalf of the Acquired Fund, as provided in paragraph 3.3. The Acquired Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquired Fund, nor is there outstanding
any security convertible into any of the Acquired Fund’s shares.
(p) The
execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action,
if any, on the part of the Trustees of the Acquired Fund, and, subject to the approval of the shareholders of the Acquired Fund, this
Agreement will constitute 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.
(q) The
Proxy Statement/Prospectus (as defined in paragraph 5.6), insofar as it relates to the Acquired Fund, will, at the Effective Time: (i) not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements were made, not materially misleading and (ii) comply
in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder;
provided, however, that the representations and warranties of this subparagraph (q) shall not apply to statements in or omissions
from the Proxy Statement/Prospectus made in reliance upon and in conformity with information that was furnished by the Acquiring Fund
for use therein.
4.2. Representations
and Warranties of the Acquiring Fund. Except as has been fully disclosed to the Acquired Fund as of the date hereof in a written
instrument executed by an officer of the Acquiring Fund, Acquiring Fund represents and warrants to the Acquired Fund as follows:
(a) The
Acquiring Fund is a statutory trust duly organized, validly existing, and in good standing under the laws of the State of Delaware with
power under its Agreement and Declaration of Trust and Amended and Restated By-Laws, each as amended from time to time, to own all of
its properties and assets and to carry on its business as it is presently conducted.
(b) The
Acquiring Fund is registered with the Commission as a closed-end management investment company under the 1940 Act, and the registration
of the Acquiring Fund Shares under the 1933 Act is in full force and effect.
(c) The
Acquiring Fund has not taken any action and does not know of any fact or circumstance that could reasonably be expected to prevent the
Reorganization from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(d) At
the Effective Time, all material Federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquiring
Fund required by law to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct
in all material respects, and all Federal and other taxes shown as due or required to be shown as due on said returns and reports shall
have been paid or provision shall have been made for the payment thereof and no such return is currently under audit and no assessment
has been asserted, in writing, with respect to such returns.
(e) The
Acquiring Fund has elected to be treated as a “regulated investment company” under Subchapter M of the Code. For each taxable
year since its commencement of operations (including the taxable year ending on the Closing Date), the Acquiring Fund has met the requirements
of Subchapter M of the Code for qualification and treatment as a regulated investment company within the meaning of Section 851 et
seq. of the Code and has been eligible to and has computed its federal income tax under Section 852 of the Code and expects to continue
to meet such requirements at all times through the Closing Date. The Acquiring Fund has not at any time since its inception been liable
for, nor is now liable for, any material income or excise tax pursuant to Sections 852 or 4982 of the Code. There is no other material
tax liability (including any foreign, state or local tax liability) of the Acquiring Fund except as set forth and accrued on the Acquiring
Fund’s books. The Acquiring Fund has no earnings or profits accumulated with respect to any taxable year in which the provisions
of Subchapter M of the Code did not apply. The Acquiring Fund will 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 regulations thereunder.
(f) The
Acquiring Fund is in compliance in all material respects with applicable regulations of the Internal Revenue Service pertaining to the
reporting of dividends and other distributions on and redemptions of its common shares of beneficial interest. To the actual knowledge
of its officers, the Acquiring Fund has complied with the requirements for collection and maintenance of Forms W-9 and/or Forms W-8 and
has withheld in respect of dividends and other distributions and paid to the proper taxing authorities all taxes required to be withheld,
and is not liable for any penalties which could be imposed thereunder. The Acquiring Fund is not under audit by any federal, state or
local taxing authority and there are no actual or proposed tax deficiencies with respect to the Acquiring Fund that have been presented
to the Acquiring Fund in writing.
(g) No
consent, approval, authorization, or order of any court or governmental authority is required for the consummation by the Acquiring Fund
of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such
as may be required under state securities laws.
(h) The
shareholder reports, marketing and other related materials of the Acquiring Fund and each prospectus and statement of additional information
of the Acquiring Fund used at all times prior to the date of this Agreement conforms or conformed at the time of its use in all material
respects to the applicable requirements of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations of the Commission
thereunder and does not or did not at the time of its use include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made,
not materially misleading.
(i) The
Acquiring Fund is not engaged currently, and the execution, delivery and performance of this Agreement will not result, in: (i) a
violation of federal securities laws (including the 1940 Act) or of Delaware law or a material violation of its Agreement and Declaration
of Trust and Amended and Restated By-Laws or of any agreement, indenture, instrument, contract, lease or other undertaking to which the
Acquiring Fund is a party or by which it is bound, or (ii) the acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Acquiring Fund is a party or by which it
is bound.
(j) Except
as otherwise disclosed to and accepted by the Acquired Fund in writing, no litigation or administrative proceeding or investigation of
or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Acquiring
Fund or any of the Acquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the
Acquiring Fund’s financial condition or the conduct of its business. The Acquiring Fund knows of no facts which 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
herein contemplated.
(k) The
Statement of Assets and Liabilities, Statements of Operations and Changes in Net Assets, and Schedule of Investments of the Acquiring
Fund at October 31, 2022, have been audited by KPMG LLP, independent registered public accounting firm, and are in accordance with
GAAP consistently applied, and such statements present fairly, in all material respects, the financial condition of the Acquiring Fund
as of such date in accordance with GAAP, and there are no known contingent liabilities of the Acquiring Fund required to be reflected
on a balance sheet (including the notes thereto) in accordance with GAAP as of such date not disclosed therein.
(l) Since
October 31, 2022, there has not been any material adverse change 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 indebtedness,
except as otherwise disclosed to by the Acquiring Fund. For the purposes of this subparagraph (l), a decline in net asset value per share
of Acquiring Fund Shares due to declines in market values of securities held by the Acquiring Fund, the discharge of the Acquiring Fund’s
liabilities, or the redemption of the Acquiring Fund’s shares by shareholders of the Acquiring Fund shall not constitute a material
adverse change.
(m) The
execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action,
if any, on the part of the Trustees of the Acquiring Fund, and, subject to the approval of the shareholders of the Acquiring Fund, this
Agreement will constitute 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.
(n) The
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 at the Effective Time have been duly authorized and, when so issued and delivered, will be duly and
validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Acquiring Fund and will have been issued in every jurisdiction
in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does
not have outstanding any options, warrants or other rights to subscribe for or purchase any of the shares of the Acquiring Fund, nor is
there outstanding any security convertible into any of the Acquiring Fund’s Shares.
(o) The
Proxy Statement/Prospectus (as defined in paragraph 5.6), insofar as it relates to the Acquiring Fund, will, at the Effective Time: (i) not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements were made, not materially misleading and (ii) comply
in all material respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act and the rules and regulations thereunder;
provided, however, that the representations and warranties of this subparagraph (o) shall not apply to statements in or omissions
from the Proxy Statement/Prospectus made in reliance upon and in conformity with information that was furnished by the Acquired Fund for
use therein.
| 5. | COVENANTS AND AGREEMENTS |
5.1. Conduct
of Business. The Acquiring Fund and the Acquired Fund each will operate its business in the ordinary course consistent with prior
practice between the date hereof and the Effective Time, it being understood that such ordinary course of business will include the declaration
and payment of customary dividends and distributions, and any other distribution that may be advisable. Notwithstanding the forgoing,
the Acquired Fund will manage its portfolio with the same approximate level of trading, turnover and leverage consistent with past practice,
except to the extent agreed in advance with the Acquiring Fund.
5.2. No
Distribution of Acquiring Fund Shares. The Acquired Fund covenants that the Acquiring Fund Shares to be issued hereunder are not
being acquired for the purpose of making any distribution thereof, other than in accordance with the terms of this Agreement.
5.3. 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 Shares.
5.4. Other
Necessary 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.
5.5. Shareholder
Meeting. The Acquired Fund has called a meeting of its shareholders to consider and act upon this Agreement and to take such other
action under applicable federal and state law to obtain approval of the transactions contemplated herein.
5.6. Proxy
Statement/Prospectus. The Acquired Fund has provided the Acquiring Fund with information regarding the Acquired Fund, and the
Acquiring Fund has provided the Acquired Fund with information regarding the Acquiring Fund, reasonably necessary for the preparation
of a Proxy Statement/Prospectus on Form N-14 (the “Proxy Statement/Prospectus”) in compliance with the 1933 Act, the
1934 Act and the 1940 Act.
5.7. Liquidating
Distribution. As soon as is reasonably practicable after the Closing, the Acquired Fund will make a liquidating distribution to
its respective shareholders consisting of the Acquiring Fund Shares received at the Closing.
5.8. Efforts.
The Acquiring Fund and the Acquired Fund shall each use their reasonable best efforts to fulfill or obtain the fulfillment of the conditions
precedent set forth in Article 6 to effect the transactions contemplated by this Agreement as promptly as reasonably practicable;
provided, that neither the Acquiring Fund nor the Acquired Fund shall be obligated to waive any condition precedent.
5.9. Other
Instruments. Each of the Acquired Fund and the Acquiring Fund covenants that it will, from time to time, execute and deliver or
cause to be executed and delivered all such assignments and other instruments, and will take or cause to be taken such further action
as the other party may reasonably deem necessary or desirable in order to vest in and confirm: (a) to the Acquired Fund, title to
and possession of the Acquiring Fund Shares to be delivered hereunder, and (b) to the Acquiring Fund, title to and possession of
all the Assets and assumption of the Liabilities assumed hereunder and otherwise to carry out the intent and purpose of this Agreement.
5.10. Regulatory
Approvals. The Acquiring Fund will use all reasonable efforts to obtain the approvals and authorizations required by the 1933
Act, the 1934 Act, 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 Effective Time.
5.11. Final
Tax Distribution. To the extent necessary to avoid entity-level income or excise tax, the Acquired Fund will declare one
or more dividends payable prior to the time of Closing to its shareholders.
5.12. Section 15(f).
The Acquiring Fund and Purchaser shall from and after the Effective Time comply in all material respects with Section 15(f) of
the 1940 Act and any rules and regulations thereunder.
6.1. Conditions
Precedent to Obligations of Acquired Fund. The obligations of the Acquired Fund to complete the transactions provided for herein
shall be subject, at the Acquired Fund’s election, to the following conditions:
(a) All
representations and warranties of the Acquiring Fund contained in this Agreement shall be true and correct in all material respects as
of the date hereof and, except as they may be affected by the transactions contemplated by this Agreement, as of the Effective Time, with
the same force and effect as if made on and as of the Effective Time.
(b) The
Acquiring Fund shall have delivered to the Acquired Fund a certificate executed in the name of the Acquiring Fund by its President or
Vice President and its Treasurer, in a form reasonably satisfactory to the Acquired Fund, and dated as of the Effective Time, to the effect
that the representations and warranties of the Acquiring Fund, made in this Agreement are true and correct at and as of the Effective
Time, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquired
Fund shall reasonably request.
(c) The
Acquiring Fund shall have performed in all material respects all of the covenants and complied with all of the provisions required by
this Agreement to be performed or complied with by the Acquiring Fund, on or before the Effective Time.
(d) The
Acquired Fund and the Acquiring Fund shall have agreed on the number of Acquiring Fund Shares to be issued in connection with the Reorganization
after such number has been calculated in accordance with paragraph 2.3.
(e) The
Acquired Fund, shall have received on the Closing Date the opinion of Dechert LLP, counsel to the Acquiring Fund (which may reasonably
rely as to matters governed by the laws of the State of Delaware on an opinion of Delaware counsel and/or certificates of officers or
Trustees of the Acquiring Fund) dated as of the Closing Date, covering the following points:
(i) The
Acquiring Fund is a statutory trust duly organized, 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 to carry on its business, including as a registered investment company, and
the Acquiring Fund has all necessary federal, state and local authorizations to carry on its business as now being conducted;
(ii) The
Agreement has been duly authorized, executed and delivered by the Acquiring Fund and, assuming due authorization, execution and delivery
of the Agreement by the Acquired Fund, is a valid and binding obligation of the Acquiring Fund enforceable against the Acquiring Fund
in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors’ rights generally and to general equity principles;
(iii) The
Acquiring Fund Shares to be issued to the Acquired Fund Shareholders as provided by this Agreement are duly authorized, upon such delivery
will be validly issued and outstanding, and are fully paid and non-assessable by the Acquiring Fund, and no shareholder of the Acquiring
Fund has any preemptive rights to subscription or purchase in respect thereof;
(iv) The
execution and delivery of the Agreement did not, and the consummation of the transactions contemplated hereby will not, result in a violation
of the Acquiring Fund’s Agreement and Declaration of Trust or its Amended and Restated By-Laws or a material violation of any provision
of any agreement (known to such counsel) to which the Acquiring Fund is a party or by which it is bound or, to the knowledge of such counsel,
result in the acceleration of any obligation or the imposition of any penalty under any agreement not disclosed to the Acquired Fund,
judgment or decree to which the Acquiring Fund is a party or by which it is bound;
(v) To
the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States
or the State of Delaware is required to be obtained by the Acquiring Fund in order to consummate the transactions contemplated herein,
except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities
or blue sky laws (other than those of the State of Delaware);
(vi) The
Acquiring Fund is a registered investment company classified as a management company of the closed-end type under the 1940 Act, and its
registration with the Commission as an investment company under the 1940 Act is in full force and effect; and
(vii) To
the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body
is presently pending or threatened as to the Acquiring Fund or any of its properties or assets and the Acquiring Fund 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.
6.2. Conditions
Precedent to Obligations of Acquiring Fund. The obligations of the Acquiring Fund to complete the transactions provided for herein
shall be subject, at the Acquiring Fund’s election, to the following conditions:
(a) All
representations 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, except as they may be affected by the transactions contemplated by this Agreement, as of the Effective Time, with
the same force and effect as if made on and as of the Effective Time.
(b) The
Acquired Fund shall have delivered to the Acquiring Fund a certificate executed in the name of the Acquired Fund by its President or Vice
President and its Treasurer, in a form reasonably satisfactory to the Acquiring Fund and dated as of the Effective Time, to the effect
that the representations and warranties of the Acquired Fund, made in this Agreement are true and correct at and as of the Effective Time,
except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund
shall reasonably request.
(c) The
Acquired Fund shall have performed in all material respects all of the covenants and complied with all of the provisions required by this
Agreement to be performed or complied with by the Acquired Fund, on or before the Effective Time.
(d) The
Acquired Fund and the Acquiring Fund shall have agreed on the number of Acquiring Fund Shares to be issued in connection with the Reorganization
after such number has been calculated in accordance with paragraph 2.3.
(e) The
Acquiring Fund, shall have received on the Closing Date the opinion of Stradley Ronon Stevens & Young, LLP, counsel to the Acquired
Fund (which may reasonably rely as to matters governed by the laws of the State of Delaware on an opinion of Delaware counsel and/or certificates
of officers of the Acquired Fund) dated as of the Closing Date, covering the following points:
(i) The
Acquired Fund is a statutory trust duly organized, 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 to carry on its business, including as a registered investment company, and the
Acquired Fund has all necessary federal, state and local authorizations to carry on its business as now being conducted;
(ii) The
Agreement has been duly authorized, executed and delivered by the Acquired Fund and, assuming due authorization, execution and delivery
of the Agreement by the Acquiring Fund is a valid and binding obligation of the Acquired Fund enforceable against the Acquired Fund in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to
or affecting creditors’ rights generally and to general equity principles;
(iii) The
execution and delivery of the Agreement did not, and the consummation of the transactions contemplated hereby will not, result in a violation
of the Acquired Fund’s Amended and Restated Declaration of Trust or its Amended and Restated By-Laws or a material violation of
any provision of any agreement (known to such counsel) to which the Acquired Fund is a party or by which it is bound or, to the knowledge
of such counsel, result in the acceleration of any obligation or the imposition of any penalty under any agreement not disclosed to the
Acquiring Fund, judgment or decree to which the Acquired Fund is a party or by which it is bound;
(iv) To
the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental authority of the United States
or the State of Delaware is required to be obtained by the Acquired Fund in order to consummate the transactions contemplated herein,
except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be required under state securities
or blue sky laws (other than those of the State of Delaware);
(v) The
Acquired Fund is a registered investment company classified as a management company of the closed-end type under the 1940 Act, and its
registration with the Commission as an investment company under the 1940 Act is in full force and effect;
(vi) The
outstanding shares of the Acquired Fund are registered under the 1933 Act and its registration is in full force and effect; and
(vii) To
the knowledge of such counsel, no litigation or administrative proceeding or investigation of or before any court or governmental body
is presently pending or threatened as to the Acquired Fund or any of its properties or assets and the Acquired Fund 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.
6.3. Other
Conditions Precedent. If any of the conditions set forth in this paragraph 6.3 have not been satisfied on or before the Effective
Time, the Acquired Fund or the Acquiring Fund shall, at its option, not be required to consummate the transactions contemplated by this
Agreement.
(a) The
Agreement and the transactions contemplated herein shall have been approved by (i) the Board of Trustees of the Acquired Fund and
(ii) the requisite shareholders of the Acquired Fund, and certified copies of the resolutions of the Board of Trustees of the Acquired
Fund evidencing such approvals shall have been delivered to the Acquiring Fund.
(b) Each
of the conditions to Closing (as defined in the Purchase Agreement) set forth in Section 7 of the Purchase Agreement have been satisfied
and the transactions contemplated by the Purchase Agreement will close concurrently with the Closing.
(c) The
Agreement and the transactions contemplated herein shall have been approved by the Board of Trustees of the Acquiring Fund, and certified
copies of the resolutions evidencing such approvals shall have been delivered to the Acquired Fund.
(d) The
Registration Statement on Form N-14 of the Acquiring Fund shall have become effective under the 1933 Act, and no stop orders suspending
the effectiveness thereof shall have been issued.
(e) On
the Closing Date, the Commission 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.
(f) At
the Effective Time, no action, suit or other proceeding shall be pending or, to the knowledge of the Acquired Fund or the Acquiring Fund,
threatened 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.
(g) All
consents of other parties and all other consents, orders and permits of Federal, state and local regulatory authorities deemed necessary
by the parties to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except
where failure to obtain any such consent, order or permit would not reasonably be expected to have a material adverse effect on the assets
or properties of the Acquiring Fund or the Acquired Fund, provided that either party hereto may for itself waive any of such conditions.
(h) BNY
shall have delivered such certificates or other documents as set forth in paragraph 3.2.
(i) The
Transfer Agent shall have delivered a certificate of its authorized officer as set forth in paragraph 3.3.
(j) The
Acquiring Fund shall have issued and delivered to the Secretary of the Acquired Fund the confirmation as set forth in paragraph 3.3.
(k) The
parties hereto shall have received the opinion of the law firm of Dechert LLP (based on certain facts, assumptions and representations),
addressed to Acquiring Fund and Acquired Fund, substantially to the effect that, for federal income tax purposes:
(i) The
transfer of the Acquired Fund’s Assets in exchange solely for Acquiring Fund Shares and the assumption by Acquiring Fund of the
Liabilities of the Acquired Fund followed by the distribution by Acquired Fund of Acquiring Fund Shares to the Acquired Fund Shareholders
in exchange for their Acquired Fund Shares in liquidation of Acquired Fund pursuant to and in accordance with the terms of this Agreement
will constitute a “reorganization” within the meaning of Section 368(a)(1) of the Code;
(ii) No
gain or loss will be recognized by Acquiring Fund upon the receipt of the Acquired Fund Assets solely in exchange for Acquiring Fund Shares
and the assumption by Acquiring Fund of the Liabilities of the Acquired Fund;
(iii) No
gain or loss will be recognized by Acquired Fund upon the transfer of the Acquired Fund Assets to Acquiring Fund in exchange solely for
Acquiring Fund Shares and the assumption by Acquiring Fund of the Liabilities or upon the distribution of Acquiring Fund Shares to the
Acquired Fund Shareholders in exchange for their Acquired Fund Shares, except that Acquired Fund may be required to recognize gain or
loss with respect to contracts described in Section 1256(b) of the Code or stock in a passive foreign investment company, as
defined in Section 1297(a) of the Code;
(iv) No
gain or loss will be recognized by the Acquired Fund Shareholders upon the exchange of the Acquired Fund Shares for Acquiring Fund Shares
(except with respect to cash received in lieu of fractional shares);
(v) The
aggregate tax basis for Acquiring Fund Shares received by each Acquired Fund Shareholder pursuant to the Reorganization will be the same
as the aggregate tax basis of the Acquired Fund Shares held by each such Acquired Fund Shareholder immediately prior to the Reorganization
(reduced by any amount of tax basis allocable to fractional shares for which cash is received);
(vi) The
holding period of Acquiring Fund Shares to be received by each Acquired Fund Shareholder will include the period during which the Acquired
Fund Shares surrendered in exchange therefor were held (provided such Acquired Fund Shares were held as capital assets on the date of
the Reorganization);
(vii) Except
for assets which may be marked to market for federal income tax purposes as a consequence of a termination of Acquired Fund’s taxable
year, the tax basis of the Acquired Fund Assets acquired by Acquiring Fund will be the same as the tax basis of such assets to Acquired
Fund in exchange therefor; and
(viii) The
holding period of the Acquired Fund Assets in the hands of Acquiring Fund will include the period during which those assets were held
by Acquired Fund (except where the investment activities of Acquiring Fund have the effect of reducing or eliminating such periods with
respect to an Acquired Fund Asset).
(ix) The
Acquiring Fund will succeed to and take into account the items of Acquired Fund described in Section 381(c) of the Code, subject
to the provisions and limitations specified in Sections 381, 382, 383, and 384 of the Code and the United States Treasury regulations
promulgated thereunder.
Notwithstanding anything
herein to the contrary, neither the Acquiring Fund nor the Acquired Fund, may waive the conditions set forth in this paragraph 6.3(k).
7.1. Indemnification
by the Acquiring Fund. The Acquiring Fund, solely out of its assets and property, agrees to indemnify and hold harmless the Acquired
Fund, and its trustees, officers, employees and agents (the “Acquired Fund Indemnified Parties”) 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 Indemnified Parties may become subject, insofar as such loss, claim, damage, liability
or expense (or actions with respect thereto) arises out of or is based on: (a) any breach by the Acquiring Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement or (b) any act, error, omission, neglect, misstatement, materially
misleading statement, breach of duty or other act wrongfully done or attempted to be committed by the Acquiring Fund or the Acquiring
Fund’s trustees, officers, employees or agents prior to the Closing Date, provided that this indemnification shall not apply to
the extent such loss, claim, damage, liability or expense (or actions with respect thereto) shall be due to any negligent, intentional
or fraudulent act, omission or error of the Acquired Fund Indemnified Parties.
7.2. Indemnification
by the Acquired Fund. The Acquired Fund, solely out of its assets and property, agrees to indemnify and hold harmless the Acquiring
Fund, and its trustees, officers, employees and agents (the “Acquiring Fund Indemnified Parties”) 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 Indemnified Parties may become subject, insofar as such loss, claim, damage, liability
or expense (or actions with respect thereto) arises out of or is based on: (a) any breach by the Acquired Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement or (b) any act, error, omission, neglect, misstatement, materially
misleading statement, breach of duty or other act wrongfully done or attempted to be committed by the Acquired Fund or the Acquired Fund’s
trustees, officers, employees or agents prior to the Closing Date, provided that this indemnification shall not apply to the extent such
loss, claim, damage, liability or expense (or actions with respect thereto) shall be due to any negligent, intentional or fraudulent act,
omission or error of the Acquiring Fund Indemnified Parties.
7.3. Liability
of the Acquired Fund. The parties understand and agree that the obligations of the Acquired Fund under this Agreement shall not
be binding upon any trustee, shareholder, nominee, officer, agent or employee of or adviser to the Acquired Fund personally, but bind
only the Acquired Fund’s property. Moreover, all persons shall look only to the assets of the Acquired Fund to satisfy the obligations
of the Acquired Fund hereunder. The parties represent that they each have notice of the provisions of the Declaration of Trust of the
Acquired Fund disclaiming such shareholder and trustee liability for acts or obligations of the Acquired Fund.
7.4. Liability
of the Acquiring Fund. The parties understand and agree that the obligations of the Acquiring Fund under this Agreement shall
not be binding upon any trustee, shareholder, nominee, officer, agent or employee of or adviser to the Acquiring Fund personally, but
bind only the Acquiring Fund’s property. Moreover, all persons shall look only to the assets of the Acquiring Fund to satisfy the
obligations of the Acquiring Fund hereunder. The parties represent that they each have notice of the provisions of the Declaration of
Trust of the Acquiring Fund disclaiming such shareholder and trustee liability for acts or obligations of the Acquiring Fund.
| 8. | BROKERAGE FEES AND EXPENSES |
8.1. No
Broker or Finder Fees. The Acquiring Fund and the Acquired Fund represent and warrant to each other that there are no brokers
or finders entitled to receive any payments in connection with the transactions provided for herein,
8.2. Expenses
of Reorganization. All fees and expenses incurred directly in connection with the consummation of the Reorganization and the transactions
contemplated by this Agreement will be borne by the Purchaser and the Seller as agreed between them, without regard to whether the Reorganization
is consummated, as set forth in the Purchase Agreement or otherwise agreed in writing. Notwithstanding the foregoing, to the extent there
are any transaction costs (including brokerage commissions, transaction charges and related fees) associated with the sales and purchases
made in connection with the Reorganizations, these will be borne by the Acquired Fund with respect to the portfolio transitioning conducted
before the Reorganization and borne by the Acquiring Fund with respect to the portfolio transitioning conducted after the Reorganization.
| 9. | AMENDMENTS AND TERMINATION |
9.1. Amendments.
This Agreement may be amended, modified or supplemented in a signed writing in such manner as may be deemed necessary or advisable by
the authorized officers of each party, on behalf of either the Acquired Fund and the Acquiring Fund; provided, however, that following
a meeting of the shareholders of the Acquired Fund called by the Board of Trustees of the Acquired Fund pursuant to paragraph 6.3(a) of
this Agreement, no such amendment may have the effect of changing the provisions for determining the number of Acquiring Fund Shares to
be issued to the Acquired Fund Shareholders under this Agreement to the detriment of the shareholders of the Acquired Fund without the
approval of the Board of Trustees of the Acquired Fund and the Board of Trustees of the Acquiring Fund and the Acquired Fund Shareholders
and, further provided, that the officers of the Acquired Fund and the Acquiring Fund may change the Effective Time and Closing Date through
an agreement in writing without additional specific authorization by their respective Board of Trustees.
9.2. Termination.
This Agreement may be terminated and the transactions contemplated hereby may be abandoned by mutual agreement of the parties, at any
time prior to the Effective Time, if circumstances should develop that, in the opinion of the Board of Trustees of the Acquiring Fund
and the Board of Trustees of the Acquired Fund, make proceeding with the Agreement inadvisable. In addition, either the Acquiring Fund
or the Acquired Fund may at its option terminate this Agreement at or before the Closing Date due to: a breach by the other of any representation,
warranty, or agreement contained herein to be performed at or before the Closing Date which breach would give rise to the failure of a
condition set forth in Sections 6.1, 6.2 or 6.3, if not cured within 30 days after being provided notice by the non-breaching party. Notwithstanding
the foregoing, if Purchaser validly terminates the Purchase Agreement, the Acquiring Fund shall be entitled to terminate this Agreement
by providing written notice to the Acquired Fund, and if Seller validly terminates the Purchase Agreement, the Acquired Fund shall be
entitled to terminate this Agreement by providing written notice to the Acquiring Fund. In the event of any such termination, in the absence
of willful default or breach, there shall be no liability for damages on the part of any of the Acquiring Fund, the Acquired Fund or their
respective Trustees or officers, to the other party or its Trustees or officers.
Any notice, report, statement
or demand required or permitted by any provisions of this Agreement shall be in writing and shall be given by facsimile, electronic delivery
(i.e., e-mail) personal service or prepaid or certified mail addressed as follows:
If to the Acquired Fund:
Delaware Enhanced Global Dividend and Income Fund
610 Market Street
Philadelphia, PA 19106-2354
Attention: David F. Connor, Esq.
With copies (which shall not constitute notice) to:
Stradley Ronon Stevens & Young, LLP
2005 Market Street, Suite 2600
Philadelphia, PA 19103-7018
Attention: Michael Mabry, Esq. and E. Taylor Brody, Esq.
If to the Acquiring Fund:
abrdn Global Dynamic Dividend Fund
1900 Market Street, Suite 200
Philadelphia, PA 19103
Attention: Lucia Sitar, Esq.
With copies (which shall not constitute notice) to:
Dechert LLP
1900 K Street NW
Washington, D.C. 20006
Attention: Thomas C. Bogle, Esq. and William J. Bielefeld, Esq.
| 11. | PUBLICITY AND CONFIDENTIALITY |
11.1. Any
public announcements or similar publicity with respect to this Agreement or the transactions contemplated herein will be made at such
time and in such manner as the Acquired Fund, the Acquiring Fund, Purchaser and Seller mutually shall agree, provided that nothing herein
shall prevent either party from making such public announcements as may be required by law, in which case the party issuing such statement
or communication shall advise the other party prior to such issuance.
11.2. The
Acquired Fund, Acquiring Fund, Purchaser and Seller (for purposes of the paragraph 11.2, the “Protected Persons”) will hold,
and will cause their board members, officers, employees, representatives, agents and affiliates to hold, in strict confidence, and not
disclose to any other person, and not use in any way except in connection with the transactions herein contemplated, without the prior
written consent of the other Protected Persons, all non-public, confidential or proprietary information obtained from the other Protected
Persons in connection with the transactions contemplated by this Agreement, except such information may be disclosed: (i) to governmental
or regulatory bodies, and, where necessary, to any other person in connection with the obtaining of consents or waivers as contemplated
by this Agreement; (ii) if required by court order or decree or applicable law; (iii) if it is publicly available through no
act or failure to act of such party; (iv) if it was already known to such party on a non-confidential basis on the date of receipt;
(v) during the course of or in connection with any litigation, government investigation, arbitration, or other proceedings based
upon or in connection with the subject matter of this Agreement, including, without limitation, the failure of the transactions contemplated
hereby to be consummated; or (vi) if it is otherwise expressly provided for herein.
11.3. In
the event of a termination of this Agreement, the Acquiring Fund, the Acquired Fund Purchaser and Seller agree that they along with their
board members, employees, representative agents and affiliates shall, and shall cause their affiliates to, except with the prior written
consent of the other Protected Persons, keep secret and retain in strict confidence, and not use for the benefit of itself or themselves,
nor disclose to any other persons, any and all non-public, confidential or proprietary information relating to the other Protected Persons
and their affiliates, whether obtained through their due diligence investigation, this Agreement or otherwise, except such information
may be disclosed: (i) if required by court order or decree or applicable law; (ii) if it is publicly available through no act
or failure to act of such party; (iii) if it was already known to such party on a non-confidential basis on the date of receipt;
(iv) during the course of or in connection with any litigation, government investigation, arbitration, or other proceedings based
upon or in connection with the subject matter of this Agreement, including, without limitation, the failure of the transactions contemplated
hereby to be consummated; or (v) if it is otherwise expressly provided for herein.
12.1. Entire
Agreement. The parties agree that neither party has made any representation, warranty or covenant not set forth herein, and that
this Agreement constitutes the entire agreement between the parties.
12.2. Survival.
The representations, warranties and covenants contained in this Agreement or in any document delivered pursuant hereto or in connection
herewith, and the obligations with respect to indemnification of the Acquired Fund and Acquiring Fund contained in paragraphs 7.1 and
7.2, shall survive the Closing.
12.3. Headings.
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.
12.4. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of laws.
12.5. Assignment.
This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns, but no assignment
or transfer hereof or of any rights or obligations hereunder shall be made by any party without the written consent of the other party.
Nothing herein expressed or implied is intended or shall be construed to confer upon or give any person, firm or corporation, other than
the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement.
12.6. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all taken together shall constitute
one agreement.
12.7. Waiver.
At any time before the Closing Date, any of the terms or conditions of this Agreement may be waived by either the Acquired Fund Board
or the Acquiring Fund Board (whichever is entitled to the benefit thereof), if, in the judgment of such board after consultation with
fund counsel, such action or waiver will not have a material adverse effect on the benefits intended in this Agreement to the shareholders
of their respective fund, on behalf of which such action is taken.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written.
| DELAWARE ENHANCED GLOBAL DIVIDEND AND
INCOME FUND |
|
ABRDN GLOBAL DYNAMIC DIVIDEND FUND |
| |
|
|
| By: |
/s/Richard
Salus |
|
By: |
/s/Lucia
Sitar |
| Name: |
Richard Salus |
|
Name: |
Lucia Sitar |
| Title: |
Senior Vice President/Chief Financial Officer |
|
Title: |
Vice President |
| |
|
|
| DELAWARE MANAGEMENT COMPANY, A SERIES
OF MACQUARIE INVESTMENT MANAGEMENT BUSINESS TRUST agrees to the
provisions of paragraphs 8.2, 11.1, 11.2 and 11.3 herein: |
|
ABRDN INC. agrees
to the provisions of paragraphs 5.12, 8.2, 11.1, 11.2 and 11.3 herein: |
| |
|
|
| By: |
/s/Richard
Salus |
|
By: |
/s/Lucia
Sitar |
| Name: |
Richard Salus |
|
Name: |
Lucia Sitar |
| Title: |
Senior Vice President |
|
Title: |
Vice President |
