AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, dated as of June 4, 2009
(this "Agreement"), is made by and between RMR Real Estate Fund, a
Massachusetts business trust and registered closed end management investment
company, File No. 811-21241 (the "Target Fund"), and RMR Real Estate
Income Fund, a Delaware statutory trust and registered closed end management
investment company, File No. 811-22234 (the "Acquiring Fund" and together
with the "Target Fund", the "Funds" and each individually, a "Fund").
WHEREAS, the Acquiring Fund has proposed to enter into the
Reorganization (as defined below) with the Target Fund;
WHEREAS, the Boards of Trustees of the Funds have determined
that participation in the Reorganization is in the best interests of
each respective Fund;
WHEREAS, the parties intend that the transaction contemplated by
this Agreement qualify as a "reorganization" within the meaning of
Section 368(a) of the Code (as defined below); and
WHEREAS, the Acquiring Fund is also proposing to enter into a
reorganization with each of (i) RMR Hospitality and Real Estate Fund,
a registered closed end management investment company, File No.
811-21502, (ii) RMR F.I.R.E. Fund, a registered closed end management
investment company, File No. 811-21616, (iii) RMR Preferred Dividend
Fund, a registered closed end management investment company, File No.
811-21671, and (iv) RMR Dividend Capture Fund, a registered closed end
management investment company, File No. 811-22079 (the funds identified
in clauses (i) through (iv) above being referred to individually as an
"RMR Fund" and collectively as the "RMR Funds"), pursuant to a separate
agreement and plan of reorganization in connection with each such
reorganization;
NOW, THEREFORE, in order to consummate the Reorganization, and
in consideration of the respective representations, warranties, covenants
and agreements hereinafter set forth, and intending to be legally bound,
each Fund hereby agrees as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "1940 Act" means the Investment Company Act of 1940, as
amended.
(d) "Acquiring Fund" shall have the meaning assigned to such
term in the preamble.
(e) "Acquiring Fund Closing Financial Statements" shall have
the meaning assigned to such term in Section 2(d).
(f) "Acquiring Fund Common Shares" shall have the meaning
assigned to such term in Section 2(k).
(g) "Acquiring Fund Preferred Shares" shall have the meaning
assigned to such term in Section 2(k).
(h) "Advisor" means RMR Advisors, Inc.
(i) "Agreement" shall have the meaning assigned to such term
in the preamble.
(j) "Closing Date" shall have the meaning assigned to such term
in Section 8(a).
(k) "Code" means the Internal Revenue Code of 1986, as amended.
(l) "Commission" means the Securities and Exchange Commission.
(m) "Fund" or "Funds" shall have the meaning assigned to such
terms in the preamble.
(n) "GAAP" means United States generally accepted accounting
principles and practices as in effect from time to time and applied
consistently throughout the periods involved.
(o) "Indemnified Party" shall have the meaning assigned to such
term in Section 13(a).
(p) "Indemnitor" shall have the meaning assigned to such term in
Section 13(a).
(q) "Loss" or "Losses" shall have the meanings assigned to such
terms in Section 13(a).
(r) "NYSE Amex" means NYSE Amex LLC.
(s) Reserved.
(t) "Proxy Statement/Prospectus" shall have the meaning assigned
to such term in Section 2(j).
(u) "Registration Statement" shall have the meaning assigned to
such term in Section 2(j).
(v) "Reorganization" shall have the meaning assigned to such term
in Section 4(a).
(w) "RIC" means a regulated investment company under Section 851
of the Code.
(x) "RMR Fund" or "RMR Funds" shall have the meaning assigned to
such terms in the recitals.
(y) "Shareholder Meeting" shall have the meaning assigned to such
term in Section 2(j).
(z) "Skadden" means Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
(aa) "Target Fund" shall have the meaning assigned to such term in
the preamble.
(bb) "Target Fund Closing Financial Statements" shall have the
meaning assigned to such term in Section 3(e).
(cc) "Target Fund Common Shares" shall have the meaning assigned to
such term in Section 3(m).
(dd) "Target Fund Investments" means (i) the investments of the
Target Fund shown on the schedule of its investments as of the Valuation
Date furnished to the Acquiring Fund and (ii) all other assets owned by
the Target Fund or liabilities incurred as of the Valuation Date.
(ee) "Target Fund Preferred Shares" shall have the meaning assigned
to such term in Section 3(m).
(ff) "Valuation Date" shall be 4:00 p.m., Eastern Time, on June 17,
2009, or such earlier or later day and time as may be mutually agreed upon
in writing by the parties hereto.
2. REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING FUND.
The Acquiring Fund represents and warrants to, and agrees with, the
Target Fund that:
(a) The Acquiring Fund is a trust, with transferable shares, duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and has the power and authority to own all of
its assets and to carry out this Agreement. The Acquiring Fund has all
necessary federal, state and local authorizations to carry on its business
as it is now being conducted or proposed to be conducted and to carry out
this Agreement.
(b) The Acquiring Fund is duly registered under the 1940 Act as a
non-diversified, closed end management investment company and such
registration has not been revoked or rescinded and is in full force and
effect.
(c) The Acquiring Fund has full power and authority to enter into
and perform its obligations under this Agreement. The execution, delivery
and performance of this Agreement has been duly authorized by all
necessary action of its board of trustees, and this Agreement constitutes
a valid and binding contract enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto.
(d) An unaudited statement of assets, liabilities and capital of the
Acquiring Fund and an unaudited schedule of investments of the Acquiring
Fund, in each case, with values determined as provided in Section 5 of this
Agreement, each as of the Valuation Date (together, the "Acquiring Fund
Closing Financial Statements"), will be furnished to the Target Fund, at
or prior to the Closing Date, for the purpose of determining the number of
Acquiring Fund Common Shares and Acquiring Fund Preferred Shares to be issued
to the Target Fund pursuant to Section 5 hereof; the Acquiring Fund Closing
Financial Statements will fairly present the financial position of the
Acquiring Fund as of the Valuation Date in conformity with GAAP.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of the Acquiring Fund, threatened against it
which assert liability on the part of the Acquiring Fund or which materially
affect its financial condition or its ability to consummate the Reorganization.
The Acquiring Fund is not charged with nor, to the best of its
knowledge, does any person presently intend to charge it with, or
to recommend that it be charged with, any violation of any provisions
of any federal, state or local law or regulation or administrative
ruling to which it is bound.
(f) There are no material contracts outstanding to which the
Acquiring Fund is a party that have not been disclosed in the
Registration Statement or that have not otherwise been disclosed
to the Target Fund.
(g) The execution, delivery and performance of this
Agreement by the Acquiring Fund do not, and the consummation of
the transactions contemplated hereby will not, constitute or result
in a breach or violation of, or a default under, (i) the governing
documents of the Acquiring Fund, (ii) any contract or other commitment
or obligation binding upon the Acquiring Fund, after giving effect to
any agreement of the Funds to amend such contract or other commitment
or obligation to cure any potential violation as a condition precedent
to the Reorganization or (iii) any order or decree binding upon the
Acquiring Fund.
(h) The Acquiring Fund has no known liabilities of a material
amount, contingent or otherwise, other than those shown on the
Acquiring Fund Closing Financial Statements, those incurred in the
ordinary course of its business as an investment company, and those
incurred in connection with the Reorganization. As of the Valuation
Date, the Acquiring Fund will advise the Target Fund in writing of all
known liabilities, contingent or otherwise, whether or not incurred
in the ordinary course of business, existing or accrued as of such time,
not otherwise disclosed in the Acquiring Fund Closing Financial Statements.
(i) No consent, approval, authorization or order of any court
or government authority is required for the consummation by the
Acquiring Fund of the Reorganization, except such as may be required
under the 1933 Act, the 1934 Act and the 1940 Act or state securities
laws (which term as used herein shall include the laws of the District
of Columbia and Puerto Rico).
(j) The registration statement filed by the Acquiring Fund on
Form N-14, which includes the proxy statement of the Target Fund with
respect to the transactions contemplated herein (the "Proxy
Statement/Prospectus"), and any documents included or incorporated by
reference therein and any supplement or amendment thereto
(collectively, as so amended or supplemented, the "Registration
Statement"), on the effective date of the Registration Statement,
at the time of the special meeting of the shareholders of the Target
Fund called to vote on this Agreement and the Reorganization
(the "Shareholder Meeting") and at the Closing Date (i) complied
or will 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 and (ii) did not or will not contain 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 misleading; and
the Proxy Statement/Prospectus included therein did not or will not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that no representation or warranty is made by the Acquiring
Fund with respect to statements made or incorporated by reference in
the Registration Statement or Proxy Statement/Prospectus based on
information supplied by the Target Fund or any RMR Fund for inclusion
or incorporation by reference therein, or based on information which
is not included or incorporated by reference in such documents but
which should have been disclosed pursuant to Section 3(l).
(k) The Acquiring Fund is authorized to issue an unlimited
number of common shares of beneficial interest, par value $.001
per share (the "Acquiring Fund Common Shares"), and an unlimited
number of preferred shares of beneficial interest ("Acquiring
Fund Preferred Shares").
(l) The Acquiring Fund Common Shares and the Acquiring Fund
Preferred Shares to be issued to the Target Fund pursuant to this
Agreement will have been duly authorized and, when issued and
transferred pursuant to this Agreement, will be legally and validly
issued and will be fully paid, nonassessable and will have full
voting rights, and no shareholder of the Acquiring Fund will have
any preemptive right of subscription or purchase in respect thereof.
(m) The Acquiring Fund, subject to the Registration Statement
having been declared effective and the filing of the Proxy
Statement/Prospectus under Rule 497, has taken all required action
under the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder to make the public offering and consummate
the sale of the Acquiring Fund Common Shares as contemplated by this
Agreement.
(n) At or prior to the Closing Date, the Acquiring Fund will
have obtained any and all regulatory, trustee and shareholder
approvals necessary to issue the Acquiring Fund Common Shares and
the Acquiring Fund Preferred Shares to the Target Fund.
(o) The Acquiring Fund has filed, or intends to file, or
has obtained extensions to file, all federal, state and local tax
returns which are required to be filed by it, and has paid or has
obtained extensions to pay, all federal, state and local taxes shown
on said returns to be due and owing and all assessments received by
it, up to and including the taxable year in which the Closing Date
occurs. All tax liabilities of the Acquiring Fund have been
adequately provided for on its books, and no tax deficiency or
liability of the Acquiring Fund has been asserted and no question
with respect thereto has been raised by the Internal Revenue Service
or by any state or local tax authority for taxes in excess of those
already paid, up to and including the taxable year in which the
Closing Date occurs.
(p) The Acquiring Fund has (i) elected to qualify and has
qualified as a RIC as of and since its inception, (ii) been a RIC
at all times since the end of its first taxable year when it so
qualified, (iii) qualifies and will continue to qualify as a RIC
and (iv) satisfied the distribution requirements imposed by the
Code for each of its taxable years.
(q) The Acquiring Fund has no plan or intention to sell
or otherwise dispose of the Target Fund Investments, except for
dispositions made in the ordinary course of business.
3. REPRESENTATIONS AND WARRANTIES OF THE TARGET FUND.
The Target Fund represents and warrants to, and agrees
with, the Acquiring Fund that:
(a) The Target Fund is a trust, with transferable shares,
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, and has the power
and authority to own all of its assets and to carry out this
Agreement. The Target Fund has all necessary federal, state and
local authorizations to carry on its business as it is now being
conducted and to carry out this Agreement.
(b) The Target Fund is duly registered under the 1940 Act
as a diversified, closed end management investment company, and
such registration has not been revoked or rescinded and is in full
force and effect.
(c) The Target Fund has full power and authority to enter
into and perform its obligations under this Agreement, subject,
in the case of consummation of the Reorganization, to the approval
and adoption of this Agreement and the Reorganization by the
shareholders of the Target Fund as described in Section 9(a)
hereof. The execution, delivery and performance of this Agreement
has been duly authorized by all necessary action of its board of
trustees and this Agreement constitutes a valid and binding contract
enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, moratorium, fraudulent conveyance and similar
laws relating to or affecting creditors' rights generally and court
decisions with respect thereto.
(d) The Target Fund has furnished the Acquiring Fund with
the Target Fund's Annual Report to Shareholders for the year ended
December 31, 2008, and the audited financial statements appearing
therein fairly present the financial position of the Target Fund as
of the respective dates indicated, in conformity with GAAP.
(e) An unaudited statement of assets, liabilities and capital
of the Target Fund and an unaudited schedule of investments of the
Target Fund (which shall include dates of acquisition and tax costs),
in each case, with values determined as provided in Section 5 of
this Agreement, each as of the Valuation Date (together, the "Target
Fund Closing Financial Statements"), will be furnished to the
Acquiring Fund at or prior to the Closing Date for the purpose of
determining the number of Acquiring Fund Common Shares and Acquiring
Fund Preferred Shares to be issued to the Target Fund pursuant to
Section 5 hereof; the Target Fund Closing Financial Statements will
fairly present the financial position of the Target Fund as of the
Valuation Date in conformity with GAAP.
(f) Other than as disclosed in the Registration Statement, there
are no material legal, administrative or other proceedings pending or,
to the knowledge of the Target Fund, threatened against it which assert
liability on the part of the Target Fund or which materially affect
its financial condition or its ability to consummate the Reorganization.
The Target Fund is not charged with nor, to the best of its knowledge,
does any person presently intend to charge it with, or to recommend
that it be charged with, any violation of any provisions of any federal,
state or local law or regulation or administrative ruling to which it
is bound.
(g) There are no material contracts outstanding to which the
Target Fund is a party that have not been disclosed in the Registration
Statement or that have not otherwise been disclosed to the Acquiring Fund.
(h) The execution, delivery and performance of this Agreement
by the Target Fund do not, and the consummation of the transactions
contemplated hereby will not, constitute or result in a breach or
violation of, or a default under, (i) the governing documents of the
Target Fund, (ii) any contract or other commitment or obligation binding
upon the Target Fund or (iii) any order or decree binding upon the
Target Fund.
(i) Other than as disclosed in the Registration Statement, the
Target Fund has no known liabilities of a material amount, contingent
or otherwise, other than those shown on the Target Fund Closing
Financial Statements, those incurred in the ordinary course of its
business as an investment company and those incurred in connection with
the Reorganization. As of the Valuation Date, the Target Fund will
advise the Acquiring Fund in writing of all known liabilities,
contingent or otherwise, whether or not incurred in the ordinary course
of business, existing or accrued as of such time, not otherwise
disclosed in the Target Fund Closing Financial Statements.
(j) No consent, approval, authorization or order of any court
or governmental authority is required for the consummation by the
Target Fund of the Reorganization, except such as may be required
under the 1933 Act, the 1934 Act and the 1940 Act or state securities
laws (which term as used herein shall include the laws of the District
of Columbia and Puerto Rico).
(k) At both the Valuation Date and the Closing Date, the Target
Fund will have full right, power and authority to sell, assign,
transfer and deliver the Target Fund Investments. At the Closing Date,
subject only to the obligation to deliver the Target Fund Investments
as contemplated by this Agreement, the Target Fund will have good and
marketable title to all of the Target Fund Investments, and the
Acquiring Fund will acquire all of the Target Fund Investments free
and clear of any encumbrances, liens or security interests and without
any restrictions upon the transfer thereof (except those imposed by
the federal or state securities laws and those imperfections of title
or encumbrances as do not materially detract from the value or use of
the Target Fund Investments or materially affect title thereto).
(l) The Registration Statement, on the effective date of the
Registration Statement, at the time of the Shareholder Meeting and
on the Closing Date (i) complied or will 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 and (ii) did not
or will not contain 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 misleading; and the Proxy Statement/Prospectus
included therein did not or will not contain any untrue statement
of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that no
representation or warranty is made by the Target Fund with respect
to statements made or incorporated by reference in the Registration
Statement or Proxy Statement/Prospectus based on information supplied
by the Acquiring Fund or any RMR Fund for inclusion or incorporation
by reference therein, or based on information which is not included or
incorporated by reference in such documents but which should have been
disclosed pursuant to Section 2(j).
(m) The Target Fund is authorized to issue an unlimited number
of common shares of beneficial interest, par value $.001 per share
(the "Target Fund Common Shares"), 6,824,000 shares of which are
outstanding on the date hereof, and an unlimited number of preferred
shares of beneficial interest (the "Target Fund Preferred Shares"),
438 shares of which are outstanding on the date hereof. Each of the
outstanding Target Fund Preferred shares has a par value of $.0001 per
share, liquidation preference of $25,000 per share plus an amount equal
to accumulated but unpaid distributions thereon (whether or not earned
or declared), and is designated as Series T. Each outstanding Target
Fund Common Share and Target Fund Preferred Share is duly authorized,
validly issued, fully paid, nonassessable, and has full voting rights,
subject, in the case of the nonassessability of such shares, to certain
decisions of the Supreme Judicial Court of The Commonwealth of
Massachusetts holding that shareholders of a Massachusetts business
trust may, in certain circumstances, be assessed or held personally liable
as partners for the obligations of a Massachusetts business trust.
Other than the outstanding Target Fund Common Shares and Target Fund
Preferred Shares, there are no outstanding (i) shares of capital stock
or other voting securities of the Target Fund, (ii) stock appreciation
rights, phantom stock units, restricted stock grants or contingent
stock grants which grant awards of any of the foregoing, (iii) bonds,
debentures, notes or other indebtedness of the Target Fund having the
right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which shareholders of the
Target Fund may vote, (iv) securities of the Target Fund convertible
into or exchangeable for shares of capital stock or voting securities of
the Target Fund, (v) options or other rights to acquire from the Target
Fund, or obligations of the Target Fund to issue any, capital stock,
voting securities or securities convertible into or exchangeable for
capital stock or voting securities of the Target Fund or (vi) equity
equivalent interests in the ownership or earnings of the Target Fund.
(n) All of the issued and outstanding Target Fund Common Shares
and Target Fund Preferred Shares were offered for sale and sold in
conformity with all applicable federal and state securities laws.
(o) The Target Fund has filed, or intends to file, or has
obtained extensions to file, all federal, state and local tax returns
which are required to be filed by it, and has paid or has obtained
extensions to pay, all federal, state and local taxes shown on said
returns to be due and owing and all assessments received by it, up to
and including the taxable year in which the Closing Date occurs. All
tax liabilities of the Target Fund have been adequately provided for
on its books, and no tax deficiency or liability of the Target Fund
has been asserted and no question with respect thereto has been raised
by the Internal Revenue Service or by any state or local tax authority
for taxes in excess of those already paid, up to and including the
taxable year in which the Closing Date occurs.
(p) The Target Fund (i) has elected to qualify and has qualified
as a RIC as of and since its inception, (ii) has been a RIC at all
times since the end of its first taxable year when it so qualified,
(iii) qualifies and will continue to qualify as a RIC for its taxable
year ending upon its liquidation and dissolution and (iv) has satisfied
the distribution requirements imposed by the Code for each of its
taxable years.
(q) The books and records of the Target Fund made available to
the Acquiring Fund and/or its counsel are substantially true and correct
and contain no material misstatements or omissions with respect to the
operations of the Target Fund.
(r) The Target Fund will not sell or otherwise dispose of any
of the Acquiring Fund Common Shares or Acquiring Fund Preferred Shares
to be received in the Reorganization, except for the distribution to
the shareholders of the Target Fund, as provided in this Agreement.
4. THE REORGANIZATION.
(a) Subject to the receipt of the requisite approvals of the
shareholders of the Target Fund, and to the other terms and conditions
contained herein, the Target Fund agrees to convey, transfer and
deliver to the Acquiring Fund and the Acquiring Fund agrees to acquire
from the Target Fund, on the Closing Date, all of the Target Fund
Investments (including interest accrued as of the Valuation Date on
debt instruments), and assume all of the liabilities of the Target
Fund, in exchange for that number and type of Acquiring Fund Common
Shares and Acquiring Fund Preferred Shares determined as provided in
Section 5 of this Agreement (the "Reorganization"). On the Closing
Date, the Target Fund Common Shares and the Target Fund Preferred Shares
shall be cancelled on the books of the Target Fund, will be null and
void, and shall represent only the right to receive, subject to the
terms and conditions of this Agreement, Acquiring Fund Common Shares,
Acquiring Fund Preferred Shares and, if not paid prior to the
Reorganization, any dividends payable with respect to such Target Fund
Common Shares and Target Fund Preferred Shares pursuant to Section
4(c) herein. Pursuant to this Agreement, as soon as practicable after
the Closing Date, the Target Fund will distribute (or cause to be
distributed) all Acquiring Fund Common Shares and Acquiring Fund
Preferred Shares it has received pursuant to the terms of this Agreement
to its shareholders pro rata in exchange for their Target Fund Common
Shares and Target Fund Preferred Shares. Such distributions shall be
accomplished by the opening of shareholder accounts on the share ledger
records of the Acquiring Fund in the names of and in the amounts due to
the holders of Target Fund Common Shares and holders of Target Fund
Preferred Shares based on their respective holdings in the Target Fund
as of the Valuation Date.
(b) If it is mutually determined by the parties hereto that the
portfolios of the Target Fund and the Acquiring Fund, when aggregated,
would contain investments exceeding certain percentage limitations set
forth in the Acquiring Fund's investment policies and restrictions, the
Target Fund, if requested by the Acquiring Fund, will dispose of a
sufficient amount of such investments as may be necessary to avoid
violating such limitations as of the Closing Date. Notwithstanding the
foregoing, (i) nothing herein will require the Target Fund to dispose
of any portfolio securities or other investments, if, in the reasonable
judgment of the Target Fund's board of trustees or investment advisor,
such disposition would create more than an insignificant risk that the
Reorganization would not be treated as a "reorganization" described in
Section 368(a) of the Code for federal income tax purposes or would
otherwise not be in the best interests of the Target Fund and (ii)
nothing will permit the Target Fund to dispose of any portfolio securities
or other investments if, in the reasonable judgment of the Acquiring
Fund's board of trustees or investment advisor, such disposition would
create more than an insignificant risk that the Reorganization would
not be treated as a "reorganization" described in Section 368(a) of
the Code for federal income tax purposes or would otherwise not be in
the best interests of the Acquiring Fund.
(c) Prior to the Closing Date, the Target Fund shall declare
and pay on or immediately before the Closing Date a dividend or dividends
which, together with all such previous dividends, shall have the effect
of distributing to its shareholders all of its net investment company
taxable income to and including the Closing Date, if any (computed
without regard to any deduction for dividends paid), and all of its
net capital gain, if any, realized to and including the Closing Date.
(d) The Target Fund will promptly pay or cause to be paid to
the Acquiring Fund any interest the Target Fund receives on or after
the Closing Date with respect to any of the Target Fund Investments
transferred to the Acquiring Fund hereunder.
(e) Recourse for liabilities assumed from the Target Fund by
the Acquiring Fund in the Reorganization will be limited to the net
assets acquired by the Acquiring Fund. The known liabilities of the
Target Fund, as of the Valuation Date, shall be confirmed to the
Acquiring Fund pursuant to Section 3(i) of this Agreement.
(f) The Target Fund will cause its existence to be terminated
following the Closing Date by (i) terminating its registration under
the 1940 Act, (ii) delisting from NYSE Amex, (iii) terminating its
organization and voluntarily dissolving and liquidating in accordance
with Massachusetts law and (iv) withdrawing its authority to do
business in any state where it is required to do so.
5. ISSUANCE AND VALUATION OF ACQUIRING FUND COMMON SHARES AND ACQUIRING
FUND PREFERRED SHARES IN THE REORGANIZATION.
(a) On the Closing Date, Acquiring Fund Common Shares and
Acquiring Fund Preferred Shares shall be issued by the Acquiring Fund
to the Target Fund in exchange for such assets of the Target Fund as
follows: on the Closing Date, the Acquiring Fund will issue to the
Target Fund (i) a number of Acquiring Fund Common Shares, the aggregate
net asset value of which will equal the aggregate net asset value of
the Target Fund Common Shares, determined as set forth in this
Section 5 and (ii) a number of Acquiring Fund Preferred Shares,
to be designated Series T, the aggregate liquidation preference of
which will equal the aggregate liquidation preference of the Target
Fund Preferred Shares, determined as set forth in this Section 5
and the terms of which will be substantially the same as the terms
of the Target Fund Preferred Shares.
(b) The net asset value of each of the Funds and the liquidation
preference of each of the Funds' preferred shares shall be determined
in accordance with the regular procedures of the Acquiring Fund, and
no formula will be used to adjust the net asset value so determined of
any Fund to take into account differences in realized and unrealized
gains and losses. The value of the Target Fund Investments to be
transferred to the Acquiring Fund shall be determined pursuant to
the regular procedures of the Acquiring Fund. Values in all cases
shall be determined as of the Valuation Date.
(c) The net asset value per share of the Target Fund Common
Shares and the liquidation preference per share of the Target Fund
Preferred Shares shall be determined in accordance with this Section
5 on the Valuation Date, and the net asset value per share of the
Acquiring Fund Common Shares and the liquidation preference per share
of the Acquiring Fund Preferred Shares shall be determined in
accordance with this Section 5 immediately after giving effect to the
Reorganization. For purposes of determining the net asset value of a
Target Fund Common Share and an Acquiring Fund Common Share, the
value of the securities held by the applicable Fund plus any cash
or other assets (including interest accrued but not yet received)
minus all liabilities (including accrued and incurred expenses as
allocated pursuant to Section 6 hereof) and the aggregate liquidation
value of the outstanding shares of Target Fund Preferred Shares or
Acquiring Fund Preferred Shares, as the case may be, is divided by
the total number of Target Fund Common Shares or Acquiring Fund Common
Shares, as the case may be, outstanding at such time.
(d) The Acquiring Fund shall issue to the Target Fund separate
certificates or evidence of book entry for the Acquiring Fund Common
Shares and the Acquiring Fund Preferred Shares, each registered in
the names provided by the Target Fund or in the name of the Target
Fund. The Target Fund shall then distribute the Acquiring Fund Common
Shares and the Acquiring Fund Preferred Shares to the holders of Target
Fund Common Shares and Target Fund Preferred Shares (i) by delivering
the Acquiring Fund Common Shares to ▇▇▇▇▇ Fargo Bank, N.A., as the
transfer agent and registrar for the Acquiring Fund Common Shares, for
distribution to the holders of Target Fund Common Shares on the basis
of such holder's proportionate interest in the aggregate net asset
value of the Target Fund Common Shares and (ii) by delivering the
Acquiring Fund Preferred Shares to The Bank of New York, as the transfer
agent and registrar for the Acquiring Fund Preferred Shares, for
distribution to the holders of Target Fund Preferred Shares on the basis
of such holder's proportionate interest in the aggregate liquidation
preference of the Target Fund Preferred Shares. All issued and outstanding
Target Fund Common Shares and Target Fund Preferred Shares will be
cancelled on the books of the Target Fund and will be null and void
as of the Closing Date.
6. PAYMENT OF EXPENSES.
(a) Each of the Acquiring Fund and the Target Fund will pay
its own expenses incurred in connection with the Reorganization,
whether or not consummated. With respect to expenses incurred in
connection with the Reorganization and the reorganizations of any
RMR Fund with the Acquiring Fund that are attributable to the Target
Fund and such RMR Funds, such expenses shall be allocated in proportion
to the net asset values attributable to the common shares of the Target
Fund and the applicable RMR Funds. Neither the Funds, the RMR Funds,
nor the Advisor will pay any expenses of shareholders arising out
of or in connection with the Reorganization.
(b) Notwithstanding anything herein to the contrary, if for
any reason the Reorganization is not consummated, except for the
payment of expenses as provided in this Section 6, no party shall
be liable to any other party for any damages resulting therefrom,
including, without limitation, consequential damages.
7. COVENANTS OF THE FUNDS.
(a) The Target Fund covenants to operate its business as
presently conducted between the date hereof and the Closing Date.
The Acquiring Fund covenants not to commence business operations
(except to the extent contemplated herein or necessary or appropriate
to consummate the purposes and intent of this Agreement and the
separate agreements and plans of reorganization that it has entered
into with the RMR Funds) prior to the completion of the Reorganization
on the Closing Date.
(b) The Acquiring Fund will file the Registration Statement
with the Commission and will use its reasonable best efforts to cause
the Registration Statement to become effective as promptly as practicable.
Each Fund agrees to cooperate fully with the other, and each will
furnish to the other the information relating to itself to be set
forth in the Registration Statement as required by the 1933 Act,
the 1934 Act and the 1940 Act, and the rules and regulations thereunder
and any applicable state securities laws.
(c) The Acquiring Fund shall use its reasonable best efforts
to cause the Acquiring Fund Common Shares to be issued in the
Reorganization to be approved for listing on NYSE Amex prior to
the Closing Date.
(d) The Target Fund shall mail to its shareholders of
record entitled to vote at the Shareholder Meeting, in sufficient
time to comply with requirements as to notice thereof, the
Proxy Statement/Prospectus.
(e) The Target Fund shall duly take all lawful action
to call, give notice of, convene and hold the Shareholder
Meeting on a date determined in accordance with the mutual
agreement of the Funds for the purpose of obtaining the requisite
shareholder vote with respect to this Agreement and the
Reorganization and shall take all lawful action to solicit the
approval and adoption of this Agreement and the Reorganization
by its shareholders.
(f) Each of the Funds agrees that, by the Closing Date,
all of its federal and other tax returns and reports required to
be filed on or before such date shall have been filed and all
taxes shown on said returns to be due and owing either shall have
been paid or adequate liability reserves shall have been provided
for the payment of such taxes.
The intention of the parties is that the transaction
contemplated by this Agreement will qualify as a "reorganization"
within the meaning of Section 368(a) of the Code. Neither Fund
shall take any action or cause any action to be taken (including,
without limitation, the filing of any tax return) that is
inconsistent with such treatment or results in the failure of the
transaction to qualify as a reorganization within the meaning of
Section 368(a) of the Code. At or prior to the Closing Date, each
Fund will take such action, or cause such action to be taken, as
is reasonably necessary to enable Skadden, as special U.S. federal
income tax counsel to the Acquiring Fund, to render the tax opinion
required herein (including, without limitation, each party's
execution of representations reasonably requested by and addressed
to Skadden).
In connection with this covenant, the Funds agree to cooperate
with each other in filing any tax return, amended return or claim for
refund, determining a liability for taxes or a right to a refund of
taxes or participating in or conducting any audit or other proceeding
in respect of taxes. The Acquiring Fund agrees to retain for a period
of 10 years following the Closing Date all returns, schedules and work
papers and all material records or other documents relating to tax
matters of the Target Fund for the taxable period first ending after
the Closing Date and for all prior taxable periods.
After the Closing Date, the Target Fund shall prepare, or cause
its agents to prepare, any federal, state or local tax returns required
to be filed by such Fund with respect to its final taxable year ending
with its complete liquidation and dissolution and for any prior periods
or taxable years and further shall cause such tax returns to be duly
filed with the appropriate taxing authorities.
(g) The Target Fund agrees that following the consummation of the
Reorganization, it will terminate its organization and dissolve and
liquidate in accordance with Massachusetts law and any other applicable
law, it will not make any distributions of any Acquiring Fund Common
Shares or Acquiring Fund Preferred Shares other than to its shareholders
as provided herein and without first paying or adequately providing for
the payment of all of its respective liabilities not assumed by the
Acquiring Fund, if any, and on and after the Closing Date it shall not
conduct any business except in connection with its termination or as
otherwise expressly provided herein.
(h) The Target Fund undertakes that if the Reorganization is
consummated, it will file an application pursuant to Section 8(f) of
the 1940 Act for an order declaring that the Target Fund has ceased
to be a registered investment company.
(i) Following the consummation of the Reorganization, the
Acquiring Fund will conduct its business as a non-diversified, closed
end management investment company registered under the 1940 Act.
8. CLOSING DATE.
(a) Delivery of the Target Fund Investments and the Acquiring
Fund Common Shares and Acquiring Fund Preferred Shares to be issued as
provided in this Agreement, shall be made at such place and time as
the Funds shall mutually agree on the Valuation Date, the date and
time upon which such delivery is to take place being referred to herein
as the "Closing Date." To the extent that any Target Fund Investments,
for any reason, are not transferable on the Closing Date, the Target
Fund shall cause such Target Fund Investments to be transferred to the
Acquiring Fund's account with its custodian at the earliest practicable
date thereafter.
(b) The Target Fund will deliver to the Acquiring Fund on the
Closing Date confirmation or other adequate evidence as to the tax
basis of the Target Fund Investments delivered to the Acquiring Fund
hereunder.
(c) As soon as practicable after the close of business on the
Closing Date, the Target Fund shall deliver to the Acquiring Fund a
list of the names and addresses of all of the shareholders of record
of the Target Fund on the Closing Date and the number of Target Fund
Common Shares and Target Fund Preferred Shares owned by each such
shareholder, certified to the best of its knowledge and belief by
the transfer agent for the Target Fund or by its President.
9. CONDITIONS TO EACH FUND'S OBLIGATION TO EFFECT THE REORGANIZATION.
The respective obligations of each Fund to consummate the
Reorganization shall be subject to the satisfaction of each of the
following conditions:
(a) That this Agreement shall have been adopted, and the
Reorganization shall have been approved, by the affirmative vote of
the holders of a "majority of the outstanding" (as defined in the
1940 Act) Target Fund Common Shares and Target Fund Preferred Shares,
voting together as a single class, and by the affirmative vote of the
holders of a majority of the outstanding Target Fund Preferred Shares,
voting as a separate class.
(b) That the board of trustees of the Acquiring Fund shall have
approved the issuance of additional Acquiring Fund Common Shares and
Acquiring Fund Preferred Shares in an amount determined in accordance
with Section 5 of this Agreement and the Acquiring Fund Common Shares
shall have been approved for listing on NYSE Amex.
(c) That there shall not be any material litigation pending with
respect to the matters contemplated by this Agreement.
(d) That the Registration Statement shall have become effective
under the 1933 Act, and no stop order suspending such effectiveness
shall have been instituted or, to the knowledge of the Acquiring Fund,
be contemplated by the Commission.
10. CONDITIONS TO THE TARGET FUND'S OBLIGATION TO EFFECT THE
REORGANIZATION.
The obligations of the Target Fund to consummate the
Reorganization shall be subject to the satisfaction of each of
the following additional conditions:
(a) That the Acquiring Fund shall have delivered to the
Target Fund a copy of the resolution duly adopted by its board
of trustees approving this Agreement, certified by its Secretary.
(b) That the Acquiring Fund shall have delivered to the
Target Fund a copy of the resolution duly adopted by its board
of trustees approving the issuance of additional Acquiring Fund
Common Shares and Acquiring Fund Preferred Shares pursuant to this
Agreement, certified by its Secretary.
(c) That the Acquiring Fund shall have furnished to the
Target Fund the Acquiring Fund Closing Financial Statements, certified
on the Acquiring Fund's behalf by its President (or any Vice President)
or its Treasurer.
(d) That the Acquiring Fund shall have furnished to the Target
Fund a certificate signed by the Acquiring Fund's President (or any
Vice President) or its Treasurer, dated as of the Closing Date,
certifying that, as of the Valuation Date and as of the Closing Date,
all representations and warranties of the Acquiring Fund made in this
Agreement that are not qualified by materiality are true and correct
in all material respects or, if qualified by materiality, are true and
correct in all respects, in each case, with the same effect as if made
at and as of such dates, and that the Acquiring Fund has complied
with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied at or prior to such dates.
(e) That the Target Fund shall have obtained an opinion from
Skadden, special U.S. federal income tax counsel for the Acquiring Fund,
dated as of the Closing Date, addressed to the Target Fund, that the
consummation of the transactions set forth in this Agreement complies
with the requirements of a reorganization as described in Section
368(a) of the Code.
11. CONDITIONS TO THE ACQUIRING FUND'S OBLIGATION TO EFFECT THE
REORGANIZATION.
The obligations of the Acquiring Fund hereunder shall be
subject to the following additional conditions:
(a) That the Target Fund shall have delivered to the
Acquiring Fund a copy of the resolution duly adopted by its
board of trustees approving this Agreement, and a certificate
setting forth the vote of the holders of Target Fund Common
Shares and Target Fund Preferred Shares obtained at the Shareholder
Meeting, each certified by its Secretary.
(b) That the Target Fund shall have furnished to the Acquiring
Fund the Target Fund Closing Financial Statements, certified on the
Target Fund's behalf by its President (or any Vice President) or its
Treasurer, and a certificate signed by such Fund's President (or any
Vice President) or its Treasurer, dated as of the Closing Date,
certifying that as of the Valuation Date and as of the Closing Date
there has been no material adverse change in the financial position
of the Target Fund since the date of such Fund's most recent Annual
Report or Semi-Annual Report, as applicable, other than changes in the
Target Fund Investments since that date or changes in the market value
of the Target Fund Investments.
(c) That the Target Fund shall have furnished to the Acquiring
Fund a certificate signed by such Fund's President (or any Vice President)
or its Treasurer, dated the Closing Date, certifying that, as of the
Valuation Date and as of the Closing Date, all representations and
warranties of the Target Fund made in this Agreement that are not
qualified by materiality are true and correct in all material respects
or, if qualified by materiality, are true and correct in all respects,
in each case, with the same effect as if made at and as of such dates,
and that the Target Fund has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
at or prior to such dates.
(d) That the Acquiring Fund shall have obtained an opinion from
Skadden, as special U.S. federal income tax counsel for the Acquiring
Fund, dated as of the Closing Date, addressed to the Acquiring Fund,
that the consummation of the transactions set forth in this Agreement
complies with the requirements of a reorganization as described in
Section 368(a) of the Code.
12. TERMINATION, POSTPONEMENT AND WAIVERS.
(a) Notwithstanding anything contained in this Agreement to
the contrary, this Agreement may be terminated and the Reorganization
abandoned at any time (whether before or after adoption thereof by
the shareholders of the Target Fund) prior to the Closing Date, or
the Closing Date may be postponed, (i) by mutual written consent of
the Boards of Trustees of the Funds, (ii) by the board of trustees
of the Target Fund if any condition of the Target Fund's obligations
set forth in Section 10 of this Agreement has not been fulfilled or
waived by such board; or (iii) by the board of trustees of the Acquiring
Fund if any condition of the Acquiring Fund's obligations set forth in
Section 11 of this Agreement has not been fulfilled or waived by such
board.
(b) If the transactions contemplated by this Agreement have
not been consummated by December 31, 2009, this Agreement automatically
shall terminate on that date, unless a later date is mutually agreed
to in writing by the Boards of Trustees of the Funds.
(c) In the event this Agreement is terminated pursuant to the
provisions hereof, the same shall become void and have no further
effect, and there shall not be any liability on the part of any Fund
or its respective directors, trustees, officers, agents or shareholders
in respect of this Agreement, except that the provisions of Section 6,
this Section 12, Section 13 and Section 14 shall survive such termination.
(d) At any time prior to the Closing Date, any of the terms or
conditions of this Agreement may be waived by the board of trustees of
any Fund (whichever is entitled to the benefit thereof), if, in the
judgment of such board after consultation with its counsel, such
waiver will not have a material adverse effect on the benefits to
the shareholders of such Fund intended under this Agreement.
(e) The respective representations and warranties contained
in Sections 2 and 3 of this Agreement shall expire with, and be
terminated by, the consummation of the Reorganization, and neither
Fund nor any of its respective officers, trustees, agents or
shareholders shall have any liability with respect to such
representations or warranties after the Closing Date. This provision
shall not protect any officer, trustee, agent or shareholder of
either Fund against any liability to the entity for which that officer,
trustee, agent or shareholder so acts or to its shareholders, to
which that officer, trustee, agent or shareholder otherwise would be
subject by reason of willful misfeasance, bad faith, gross negligence,
or reckless disregard of his or her duties in the conduct of such
office.
(f) If any order or orders of the Commission with respect to
this Agreement shall be issued prior to the Closing Date that impose
any terms or conditions that are determined by action of the Boards
of Trustees of the Funds to be acceptable, such terms and conditions
shall be binding as if a part of this Agreement without further vote
or approval of the shareholders of the Target Fund, unless such terms
and conditions shall result in a change in the method of computing the
number of Acquiring Fund Common Shares or Acquiring Fund Preferred
Shares to be issued to the Target Fund, as applicable, in which event,
unless such terms and conditions shall have been included in the
proxy solicitation materials furnished to the shareholders of the
Target Fund prior to the Shareholder Meeting, this Agreement shall
not be consummated and shall terminate unless the Target Fund promptly
shall call a special meeting of shareholders at which such conditions
so imposed shall be submitted for approval.
13. INDEMNIFICATION.
(a) Each party (an "Indemnitor") shall indemnify and hold the
other and its officers, trustees, agents and persons controlled by or
controlling any of them (each an "Indemnified Party") harmless from
and against any and all losses, damages, liabilities, claims, demands,
judgments, settlements, deficiencies, taxes, assessments, charges,
costs and expenses of any nature whatsoever (including reasonable
attorneys' fees) including amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and counsel fees reasonably
incurred by such Indemnified Party in connection with the defense or
disposition of any claim, action, suit or other proceeding, whether civil
or criminal, before any court or administrative or investigative body
in which such Indemnified Party may be or may have been involved as a
party or otherwise or with which such Indemnified Party may be or may
have been threatened (each, a "Loss" and collectively, "Losses") arising
out of or related to any claim of a breach of any covenant made herein
by the Indemnitor, provided, however, that no Indemnified Party shall be
indemnified hereunder against any Losses arising directly from such
Indemnified Party's (i) willful misfeasance, (ii) bad faith, (iii) gross
negligence or (iv) reckless disregard of the duties involved in the
conduct of such Indemnified Party's position.
(b) The Indemnified Party shall use its reasonable best efforts
to minimize any liabilities, damages, deficiencies, claims, judgments,
assessments, costs and expenses in respect of which indemnity may be
sought hereunder. The Indemnified Party shall give written notice to
Indemnitor within the earlier of 10 days of receipt of written notice to
Indemnified Party or 30 days from discovery by Indemnified Party of any
matters which may give rise to a claim for indemnification or
reimbursement under this Agreement. The failure to give such notice
shall not affect the right of Indemnified Party to indemnity hereunder
unless such failure has materially and adversely affected the rights of
the Indemnitor. At any time after 10 days from the giving of such
notice, Indemnified Party may, at its option, resist, settle or
otherwise compromise, or pay such claim unless it shall have received
notice from Indemnitor that Indemnitor intends, at Indemnitor's sole
cost and expense, to assume the defense of any such matter, in which
case Indemnified Party shall have the right, at no cost or expense to
Indemnitor, to participate in such defense. If Indemnitor does not
assume the defense of such matter, and in any event until Indemnitor
states in writing that it will assume the defense, Indemnitor shall
pay all costs of Indemnified Party arising out of the defense until
the defense is assumed; provided, however, that Indemnified Party
shall consult with Indemnitor and obtain Indemnitor's prior written
consent to any payment or settlement of any such claim. Indemnitor
shall keep Indemnified Party fully apprised at all times as to the
status of the defense. If Indemnitor does not assume the defense,
Indemnified Party shall keep Indemnitor apprised at all times as to
the status of the defense. Following indemnification as provided for
hereunder, Indemnitor shall be subrogated to all rights of Indemnified
Party with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made.
14. OTHER MATTERS.
(a) All covenants, agreements, representations and warranties
made under this Agreement and any certificates delivered pursuant to
this Agreement shall be deemed to have been material and relied upon
by each of the parties, notwithstanding any investigation made by them
or on their behalf.
(b) All notices hereunder shall be sufficiently given for all
purposes hereunder if in writing and delivered personally or sent by
registered mail or certified mail, postage prepaid. Notice to the Target
Fund shall be addressed to the Target Fund c/o RMR Funds, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or at
such other address as the Target Fund may designate by written notice
to the Acquiring Fund. Notice to the Acquiring Fund shall be addressed
to the Acquiring Fund ▇/▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or at such other
address and to the attention of such other person as the Acquiring
Fund may designate by written notice to the Target Fund. Any notice
shall be deemed to have been served or given as of the date such notice
is delivered personally or mailed as provided herein.
(c) This Agreement supersedes all previous correspondence and
oral communications between the Funds regarding the Reorganization,
constitutes the only understanding with respect to the Reorganization,
may not be changed except in a writing executed by each Fund and shall
be governed by and construed in accordance with the laws of the State
of Delaware (without giving effect to choice of law principles thereof).
(d) This Agreement may be amended or modified by the parties
hereto prior to the Closing Date, by action taken or authorized by their
respective boards of trustees, at any time before or after adoption of
this Agreement and approval of the Reorganization by the Target Fund's
shareholders, but, after any such adoption and approval, no amendment
or modification shall be made which by law requires further approval by
such shareholders without such further approval. This Agreement may
not be amended or modified except by an instrument in writing signed
on behalf of each of the parties hereto.
(e) This Agreement is not intended to confer upon any person
other than the parties hereto (or their respective successors and assigns)
any rights, remedies, obligations or liabilities hereunder. If any
provision of this Agreement shall be held or made invalid by a statute,
rule, regulation, decision of a tribunal or otherwise, the remainder of
this Agreement shall not be affected thereby and, to such extent, the
provisions of this Agreement shall be deemed severable, provided that,
this Agreement shall be deemed modified to give effect to the fullest
extent permitted under applicable law to the intentions of the parties
as reflected by this Agreement prior to the invalidity of such provision.
(f) It is expressly agreed that the obligations of the Funds
hereunder shall not be binding upon any of their respective trustees,
shareholders, nominees, officers, agents, or employees personally,
but shall bind only the trust property of the respective Fund as
provided in such Fund's Agreement and Declaration of Trust. The
execution and delivery of this Agreement has been authorized by
the board of trustees of each Fund and signed by authorized officers
of each Fund, acting as such, and neither such authorization by such
trustees, nor such execution and delivery by such officers shall be
deemed to have been made by any of them individually or to impose
any liability on any of them personally, but shall bind only the
trust property of each Fund as provided in such Funds' Agreement
and Declaration of Trust.
(g) This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall
be deemed to be an original but all such counterparts together
shall constitute but one instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have hereunto caused this
Agreement to be executed and delivered by their duly authorized
officers as of the day and year first written above.
RMR REAL ESTATE FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee, President and Principal Executive Officer
RMR REAL ESTATE INCOME FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee, President and Principal Executive Officer
2
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