SEC Company Response from Angel Oak Financial Strategies Income Term Trust (FINS) (CIK 0001745059) (FINS) — Apr 7, 2020
Angel Oak Financial Strategies Income Term Trust (FINS) (CIK 0001745059)
Date: April 7, 2020 · CIK: 0001745059 · Accession: 0001683863-20-002457
AI Filing Summary & Sentiment
Letter
VIA EDGAR Division of Investment Management 100 F Street, NE Washington, DC 20549 Attn: Yoon Choo Re: Angel Oak Financial Strategies Income Term Trust (the "Acquiring Fund") (File No. 333- 236500) – Form N-14 Filing
Dear Ms. Choo:
This letter responds to comments you and Mr. Jason Fox conveyed via telephone on March 12, 2020, to Brooke Clark and me in connection with the Securities and Exchange Commission ("SEC") staff's review of the registration statement/proxy statement on Form N-14 (the "Proxy Statement/Prospectus") that was filed by the Acquiring Fund on February 18, 2020. The Acquiring Fund plans to incorporate the SEC staff's comments based on the responses below in a pre-effective amendment to the Proxy Statement/Prospectus. Please note that, in addition to the changes discussed below, the Pro Forma Financial Statements in the Statement of Additional Information relating to the Proxy Statement/Prospectus have been updated to provide information of January 31, 2020. Capitalized terms not defined herein have the definitions provided to them in the Proxy Statement/Prospectus.
General
1.Comment: Please note that the comments may apply to disclosure appearing multiple times in
the Proxy Statement/Prospectus. Please make changes throughout the Proxy Statement/Prospectus as appropriate.
Response: The Acquiring Fund has updated the disclosure accordingly.
2.Comment: Please supplementally provide an accounting analysis as to whether the proposed merger is accounted for as a business combination or an asset acquisition. Please cite to any applicable U.S. GAAP standards. Additionally, supplementally describe if there will be any day one gain or loss and how transaction costs will be allocated in relation to the purchase price.
Response: Section ASC 805 governs the accounting for business combinations. In determining whether an acquisition is a business combination or an asset acquisition, it needs to be determined if the assets and activities acquired constitute a business. The guidance also states that if substantially all of the fair value of the gross assets acquired is concentrated in one identifiable asset or in a group of similar identifiable assets, the set is not considered a business. Virtually all of the fair value of the gross assets of the Acquired Fund represents a group of similar identifiable assets; therefore, the transaction will be accounted for as an asset acquisition.
It is stated in recent AICPA Q&A postings, specifically Q&A Section 6910.33, that if a business combination is considered a taxable transaction then the fair market value of the purchased assets becomes the cost basis of that asset for the acquiring fund.
It is not anticipated that there will be any day one gain or loss for the Acquiring Fund because the Acquiring Fund will be receiving the Acquire Fund's assets at fair market value. The costs associated with the Reorganization are being borne Angel Oak and Vivaldi. Therefore, there is no need for cost allocation on the day of the Reorganization or any adjustments to net assets related to expenses.
3.Comment: Please supplementally explain how the Funds determined that net asset value is a better indicator of fair value than market price for purposes of determination of the value of consideration given in the Reorganization. Please cite to any applicable U.S. GAAP standards.
Response: The Funds determined to complete the transaction on the basis of net asset value consistent Rule 17a-8 and SEC's guidance in connection with Rule 17a-8 as well as each Board's business judgment in approving the terms of the transaction. With respect to each of the Acquiring Fund and the Acquired Fund, Rule 17a-8(a)(2) under the 1940 Act requires the Fund's Board, including a majority of Trustees/Directors who are not interested persons of the Acquired Fund or the Acquiring Fund, to determine that the interests of the Fund's shareholders will not be diluted as a result of the Reorganization. If a Fund's assets and liabilities were valued at market price rather than net asset value, each Board must find that transacting at market price would not result in shareholder dilution For example, if the Acquired Fund was trading at a premium, the Acquiring Fund would be required to issue shares greater than the value of what the Acquiring Fund assumes in the transaction (i.e., the net value of the Acquired Fund's assets and liabilities), which could lead to the conclusion that the Acquiring Fund shareholders' interests are diluted.
In a proposing release amending Rule 17a-8 under the 1940 Act, the SEC noted that, when two funds merge, each board, as part of its determination that the interests of existing shareholders will not be diluted, generally has concluded that there is no dilution where the reorganization is occurring on the basis of the relative net asset values of the merging funds. See Investment Company Mergers, SEC Release No. IC-25259 (Nov. 8, 2001). Additionally, the Acquiring Fund notes that market price can be influenced by a variety of factors, including investor visibility of the investment product, cyclical trading patterns, liquidity for fund shares and potential future taxes. Therefore, the Acquiring Fund reasonably determined that net asset value is a better indicator of fair value than market price for purposes of determination of the value of consideration given in the Reorganization.
The Acquiring Fund further notes that if the Reorganization were to be executed at market price, the Acquiring Fund shares could be trading at a premium or discount to net asset value on the date of the Reorganization. If the Acquiring Fund shares were trading at a discount to net asset value on the date of the Reorganization, the Acquiring Fund could be in violation of Section 23(b) of the 1940 Act, which provides that no registered closed-end company shall sell any common stock of which it is the issuer at a price below the current net asset value of such stock, exclusive of any distributing commission or discount.
Letter to Shareholders
4.Comment: Please disclose that the Reorganization is expected to be a taxable event for the Acquired Fund and its shareholders.
Response: The Acquiring Fund has added the following disclosure.
The Reorganization is expected to be a taxable event for the Acquired Fund and its shareholders.
QUESTIONS & ANSWERS
5.Comment: Please provide cross-references to related sections in the Proxy Statement/Prospectus as appropriate.
Response: The Acquiring Fund has provided cross-references to related sections in the Proxy Statement/Prospectus as appropriate.
6.Comment: In the question "What happens if the Proposal is not approved by the Acquired Fund shareholders?" please disclose the options the Acquired Fund Board may consider if the Reorganization Agreement is not approved by the Acquired Fund shareholders and/or the issuance of Acquiring Fund common shares is not approved by the Acquiring Fund shareholders. Please also include such disclosure in the Proxy Statement/Prospectus.
Response: The Acquiring Fund has revised the disclosure to read:
If the Reorganization Agreement or the issuance of Acquiring Fund common shares is not approved by shareholders of the applicable Fund, then the Board of the Acquired Fund will consider other options potentially available to the Acquired Fund, including maintaining the status quo or liquidating the Acquired Fund.
The Acquiring Fund notes that similar disclosure is in the Proxy Statement/Prospectus.
7.Comment: In the question "How different are the Funds?" please disclose that the Acquiring
Fund has a term and that the Acquired Fund does not have a term. Please also include this disclosure in the Proxy Statement/Prospectus.
Response: The Acquiring Fund has added the following disclosure.
The Acquiring Fund has a term whereas the Acquired Fund does not. The Acquiring Fund will terminate on or before May 31, 2031 (the "Termination Date"); provided, that if the Board of Trustees of the Acquiring Fund believes that, under then-current market conditions, it is in the best interests of the Acquiring Fund to do so, the Acquiring Fund may extend the Termination Date:(i)once for up to one year (i.e., up to May 31, 2032), and (ii) once for up to an additional six months (i.e., up to November 30, 2032), in each case upon the
affirmative vote of a majority of the Board of Trustees of the Acquiring Fund and without shareholder approval.
The Acquiring Fund has added similar disclosure to the Proxy Statement/Prospectus.
8.Comment: In the question "How different are the Funds?" please discuss each Fund's use of leverage and the Combined Fund's anticipated use of leverage, as well as the Combined Fund's anticipated issuance of preferred shares.
Response: The Acquiring Fund has added the following disclosure.
The Funds may use leverage to the extent permitted by the 1940 Act. As of January 31, 2020, the Acquired Fund had 18% aggregate financial leverage from borrowings as a percentage of its total assets. As of the same date, the Acquiring Fund had 25.6% aggregate financial leverage from borrowings as a percentage of its total assets. The Acquiring Fund uses leverage primarily in the form of reverse repurchase agreements and a line of credit, and the Combined Fund anticipates using leverage similarly to the Acquiring Fund's use thereof.
The Acquiring Fund currently intends to issue preferred shares during the next twelve months. Any such preferred shares of the Acquiring Fund would be senior to the Acquiring Fund's common shares, such that holders of preferred shares would have priority over the distribution of the Acquiring Fund's assets, including dividends and liquidating distributions. If preferred shares are issued and outstanding, holders of the preferred shares would have the right to elect two trustees of the Acquiring Fund, voting separately as a class.
9.Comment: In the question "How different are the Funds?" please disclose that the Acquired
Fund has a managed distribution policy whereas the Acquiring Fund does not have such a policy.
Response: The Acquiring Fund has added the following disclosure.
The Acquired Fund intends to make monthly distributions to its shareholders equal to 10% annually of the Acquired Fund's net asset value per share whereas the Acquiring Fund does not intend to distribute a certain percentage of the Acquiring Fund's net asset value per share.
10.Comment: In the question "How will the Reorganization be effected?" please change "may" to "will" in the following disclosure, if accurate.
You will become a shareholder of the Acquiring Fund. Holders of shares of common stock of the Acquired Fund will receive newly issued common shares of the Acquiring Fund, par value $0.001 per share, the aggregate net asset value (not the market value) of which will equal the aggregate net asset value (not the market value) of the shares of common stock of the Acquired Fund you held immediately prior to the Reorganization (although shareholders may receive cash for fractional shares).
Response: The Acquiring Fund has revised the disclosure to read:
You will become a shareholder of the Acquiring Fund. Holders of shares of common stock of the Acquired Fund will receive newly issued common shares of the Acquiring Fund, par value $0.001 per share, the aggregate net asset value (not the market value) of which will equal the aggregate net asset value (not the market value) of the shares of common stock of the Acquired Fund you held immediately prior to the Reorganization (although shareholders will receive cash for fractional shares).
11.Comment: In the question "Will there be any significant portfolio transitioning in connection with the Reorganization?" please specify the percentage of securities held by the Acquired Fund that will be sold shortly before the closing of the Reorganization.
Response: Approximately 90% of the securities held by the Acquired Fund will be sold by the Acquired Fund shortly before the closing of the Reorganization. The Acquiring Fund believes the current disclosure and the Pro Forma Financial Statements accurately reflect this and respectfully declines to make any changes in response to this comment.
12.Comment: In the question "Will there be any significant portfolio transitioning in connection with the Reorganization?" please consider revising the following disclosure to refer to the Combined Fund where accurate.
The transaction costs associated with these sales and purchases (including brokerage commissions, transaction charges and related fees) largely will be borne by the Acquired Fund although a small portion may be borne by the Acquiring Fund, with respect to the limited amount of positions that will be sold following the Reorganization.
Response: The Acquiring Fund has revised the disclosure to read:
There are expected to be no transaction costs associated with these sales and purchases (including brokerage commissions, transaction charges and related fees). To the extent there are any transaction costs, these will be borne by the Acquired Fund with respect to the portfolio transitioning conducted before the Reorganization and borne by the Combined Fund, with respect to the limited amount of positions that will be sold following the Reorganization.
13.Comment: In the question "Will there be any significant portfolio transitioning in connection with the Reorganization?" please disclose (i) the estimated net capital gain/loss that may be realized on disposition of the Acquired Fund's securities, (ii) the impact on portfolio transitioning of any capital loss carryforwards available to the Acquired Fund, (iii) an estimate of portfolio transaction costs for the Acquired Fund and (iv) an estimate of the per share amounts of transaction costs and estimated capital gain/loss. Please also include such disclosure in the Notes to the Pro Forma Financial Statements.
Response: The Acquiring Fund has added the following disclosure.
As of March 31, 2020, the Acquired Fund had net short term capital loss carryforwards of approximately $5,098,795 (approximately $0.89 per share) and net long term capital loss carryforwards of $2,842,570 (approximately $.50 per share). Because the Acquired Fund did not have any capital loss carryforwards as of December 31, 2019, capital loss carryforwards will have no impact on portfolio transitioning. It is anticipated that the Acquired Fund will have no transaction costs to bear in connection with portfolio transitioning.
14.Comment: In the question "Who will pay for the costs associated with the Reorganization" please disclose whether the costs of the Reorganization being borne by Angel and Vivaldi is dependent on whether the Reorganization is consummated. Please also include such disclosure in the section of the Proxy Statement/Prospectus entitled "Expenses of the Reorganization."
Response: The Acquiring Fund has added the following disclosure.
Angel Oak and Vivaldi will bear expenses incurred in connection with the Reorganization, as agreed to by those parties, whether or not the Reorganization is consummated.
The Acquiring Fund has added similar disclos
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1900 K Street, NW Washington, DC 20006 +1 202 261 3300 Main +1 202 261 3333 Fax www.dechert.com
April 7, 2020
VIA EDGAR
U.S. Securities and Exchange Commission
Division of Investment Management
100 F Street, NE
Washington, DC 20549
Attn: Yoon Choo
Re: Angel Oak Financial Strategies Income Term Trust (the "Acquiring Fund") (File No. 333- 236500) – Form N-14 Filing
Dear Ms. Choo:
This letter responds to comments you and Mr. Jason Fox conveyed via telephone on March 12, 2020, to Brooke Clark and me in connection with the Securities and Exchange Commission ("SEC") staff's review of the registration statement/proxy statement on Form N-14 (the "Proxy Statement/Prospectus") that was filed by the Acquiring Fund on February 18, 2020. The Acquiring Fund plans to incorporate the SEC staff's comments based on the responses below in a pre-effective amendment to the Proxy Statement/Prospectus. Please note that, in addition to the changes discussed below, the Pro Forma Financial Statements in the Statement of Additional Information relating to the Proxy Statement/Prospectus have been updated to provide information of January 31, 2020. Capitalized terms not defined herein have the definitions provided to them in the Proxy Statement/Prospectus.
General
1.Comment: Please note that the comments may apply to disclosure appearing multiple times in
the Proxy Statement/Prospectus. Please make changes throughout the Proxy Statement/Prospectus as appropriate.
Response: The Acquiring Fund has updated the disclosure accordingly.
2.Comment: Please supplementally provide an accounting analysis as to whether the proposed merger is accounted for as a business combination or an asset acquisition. Please cite to any applicable U.S. GAAP standards. Additionally, supplementally describe if there will be any day one gain or loss and how transaction costs will be allocated in relation to the purchase price.
Response: Section ASC 805 governs the accounting for business combinations. In determining whether an acquisition is a business combination or an asset acquisition, it needs to be determined if the assets and activities acquired constitute a business. The guidance also states that if substantially all of the fair value of the gross assets acquired is concentrated in one identifiable asset or in a group of similar identifiable assets, the set is not considered a business. Virtually all of the fair value of the gross assets of the Acquired Fund represents a group of similar identifiable assets; therefore, the transaction will be accounted for as an asset acquisition.
It is stated in recent AICPA Q&A postings, specifically Q&A Section 6910.33, that if a business combination is considered a taxable transaction then the fair market value of the purchased assets becomes the cost basis of that asset for the acquiring fund.
It is not anticipated that there will be any day one gain or loss for the Acquiring Fund because the Acquiring Fund will be receiving the Acquire Fund's assets at fair market value. The costs associated with the Reorganization are being borne Angel Oak and Vivaldi. Therefore, there is no need for cost allocation on the day of the Reorganization or any adjustments to net assets related to expenses.
3.Comment: Please supplementally explain how the Funds determined that net asset value is a better indicator of fair value than market price for purposes of determination of the value of consideration given in the Reorganization. Please cite to any applicable U.S. GAAP standards.
Response: The Funds determined to complete the transaction on the basis of net asset value consistent Rule 17a-8 and SEC's guidance in connection with Rule 17a-8 as well as each Board's business judgment in approving the terms of the transaction. With respect to each of the Acquiring Fund and the Acquired Fund, Rule 17a-8(a)(2) under the 1940 Act requires the Fund's Board, including a majority of Trustees/Directors who are not interested persons of the Acquired Fund or the Acquiring Fund, to determine that the interests of the Fund's shareholders will not be diluted as a result of the Reorganization. If a Fund's assets and liabilities were valued at market price rather than net asset value, each Board must find that transacting at market price would not result in shareholder dilution For example, if the Acquired Fund was trading at a premium, the Acquiring Fund would be required to issue shares greater than the value of what the Acquiring Fund assumes in the transaction (i.e., the net value of the Acquired Fund's assets and liabilities), which could lead to the conclusion that the Acquiring Fund shareholders' interests are diluted.
In a proposing release amending Rule 17a-8 under the 1940 Act, the SEC noted that, when two funds merge, each board, as part of its determination that the interests of existing shareholders will not be diluted, generally has concluded that there is no dilution where the reorganization is occurring on the basis of the relative net asset values of the merging funds. See Investment Company Mergers, SEC Release No. IC-25259 (Nov. 8, 2001). Additionally, the Acquiring Fund notes that market price can be influenced by a variety of factors, including investor visibility of the investment product, cyclical trading patterns, liquidity for fund shares and potential future taxes. Therefore, the Acquiring Fund reasonably determined that net asset value is a better indicator of fair value than market price for purposes of determination of the value of consideration given in the Reorganization.
The Acquiring Fund further notes that if the Reorganization were to be executed at market price, the Acquiring Fund shares could be trading at a premium or discount to net asset value on the date of the Reorganization. If the Acquiring Fund shares were trading at a discount to net asset value on the date of the Reorganization, the Acquiring Fund could be in violation of Section 23(b) of the 1940 Act, which provides that no registered closed-end company shall sell any common stock of which it is the issuer at a price below the current net asset value of such stock, exclusive of any distributing commission or discount.
2
Letter to Shareholders
4.Comment: Please disclose that the Reorganization is expected to be a taxable event for the Acquired Fund and its shareholders.
Response: The Acquiring Fund has added the following disclosure.
The Reorganization is expected to be a taxable event for the Acquired Fund and its shareholders.
QUESTIONS & ANSWERS
5.Comment: Please provide cross-references to related sections in the Proxy Statement/Prospectus as appropriate.
Response: The Acquiring Fund has provided cross-references to related sections in the Proxy Statement/Prospectus as appropriate.
6.Comment: In the question "What happens if the Proposal is not approved by the Acquired Fund shareholders?" please disclose the options the Acquired Fund Board may consider if the Reorganization Agreement is not approved by the Acquired Fund shareholders and/or the issuance of Acquiring Fund common shares is not approved by the Acquiring Fund shareholders. Please also include such disclosure in the Proxy Statement/Prospectus.
Response: The Acquiring Fund has revised the disclosure to read:
If the Reorganization Agreement or the issuance of Acquiring Fund common shares is not approved by shareholders of the applicable Fund, then the Board of the Acquired Fund will consider other options potentially available to the Acquired Fund, including maintaining the status quo or liquidating the Acquired Fund.
The Acquiring Fund notes that similar disclosure is in the Proxy Statement/Prospectus.
7.Comment: In the question "How different are the Funds?" please disclose that the Acquiring
Fund has a term and that the Acquired Fund does not have a term. Please also include this disclosure in the Proxy Statement/Prospectus.
Response: The Acquiring Fund has added the following disclosure.
The Acquiring Fund has a term whereas the Acquired Fund does not. The Acquiring Fund will terminate on or before May 31, 2031 (the "Termination Date"); provided, that if the Board of Trustees of the Acquiring Fund believes that, under then-current market conditions, it is in the best interests of the Acquiring Fund to do so, the Acquiring Fund may extend the Termination Date:(i)once for up to one year (i.e., up to May 31, 2032), and (ii) once for up to an additional six months (i.e., up to November 30, 2032), in each case upon the
3
affirmative vote of a majority of the Board of Trustees of the Acquiring Fund and without shareholder approval.
The Acquiring Fund has added similar disclosure to the Proxy Statement/Prospectus.
8.Comment: In the question "How different are the Funds?" please discuss each Fund's use of leverage and the Combined Fund's anticipated use of leverage, as well as the Combined Fund's anticipated issuance of preferred shares.
Response: The Acquiring Fund has added the following disclosure.
The Funds may use leverage to the extent permitted by the 1940 Act. As of January 31, 2020, the Acquired Fund had 18% aggregate financial leverage from borrowings as a percentage of its total assets. As of the same date, the Acquiring Fund had 25.6% aggregate financial leverage from borrowings as a percentage of its total assets. The Acquiring Fund uses leverage primarily in the form of reverse repurchase agreements and a line of credit, and the Combined Fund anticipates using leverage similarly to the Acquiring Fund's use thereof.
The Acquiring Fund currently intends to issue preferred shares during the next twelve months. Any such preferred shares of the Acquiring Fund would be senior to the Acquiring Fund's common shares, such that holders of preferred shares would have priority over the distribution of the Acquiring Fund's assets, including dividends and liquidating distributions. If preferred shares are issued and outstanding, holders of the preferred shares would have the right to elect two trustees of the Acquiring Fund, voting separately as a class.
9.Comment: In the question "How different are the Funds?" please disclose that the Acquired
Fund has a managed distribution policy whereas the Acquiring Fund does not have such a policy.
Response: The Acquiring Fund has added the following disclosure.
The Acquired Fund intends to make monthly distributions to its shareholders equal to 10% annually of the Acquired Fund's net asset value per share whereas the Acquiring Fund does not intend to distribute a certain percentage of the Acquiring Fund's net asset value per share.
10.Comment: In the question "How will the Reorganization be effected?" please change "may" to "will" in the following disclosure, if accurate.
You will become a shareholder of the Acquiring Fund. Holders of shares of common stock of the Acquired Fund will receive newly issued common shares of the Acquiring Fund, par value $0.001 per share, the aggregate net asset value (not the market value) of which will equal the aggregate net asset value (not the market value) of the shares of common stock of the Acquired Fund you held immediately prior to the Reorganization (although shareholders may receive cash for fractional shares).
4
Response: The Acquiring Fund has revised the disclosure to read:
You will become a shareholder of the Acquiring Fund. Holders of shares of common stock of the Acquired Fund will receive newly issued common shares of the Acquiring Fund, par value $0.001 per share, the aggregate net asset value (not the market value) of which will equal the aggregate net asset value (not the market value) of the shares of common stock of the Acquired Fund you held immediately prior to the Reorganization (although shareholders will receive cash for fractional shares).
11.Comment: In the question "Will there be any significant portfolio transitioning in connection with the Reorganization?" please specify the percentage of securities held by the Acquired Fund that will be sold shortly before the closing of the Reorganization.
Response: Approximately 90% of the securities held by the Acquired Fund will be sold by the Acquired Fund shortly before the closing of the Reorganization. The Acquiring Fund believes the current disclosure and the Pro Forma Financial Statements accurately reflect this and respectfully declines to make any changes in response to this comment.
12.Comment: In the question "Will there be any significant portfolio transitioning in connection with the Reorganization?" please consider revising the following disclosure to refer to the Combined Fund where accurate.
The transaction costs associated with these sales and purchases (including brokerage commissions, transaction charges and related fees) largely will be borne by the Acquired Fund although a small portion may be borne by the Acquiring Fund, with respect to the limited amount of positions that will be sold following the Reorganization.
Response: The Acquiring Fund has revised the disclosure to read:
There are expected to be no transaction costs associated with these sales and purchases (including brokerage commissions, transaction charges and related fees). To the extent there are any transaction costs, these will be borne by the Acquired Fund with respect to the portfolio transitioning conducted before the Reorganization and borne by the Combined Fund, with respect to the limited amount of positions that will be sold following the Reorganization.
13.Comment: In the question "Will there be any significant portfolio transitioning in connection with the Reorganization?" please disclose (i) the estimated net capital gain/loss that may be realized on disposition of the Acquired Fund's securities, (ii) the impact on portfolio transitioning of any capital loss carryforwards available to the Acquired Fund, (iii) an estimate of portfolio transaction costs for the Acquired Fund and (iv) an estimate of the per share amounts of transaction costs and estimated capital gain/loss. Please also include such disclosure in the Notes to the Pro Forma Financial Statements.
Response: The Acquiring Fund has added the following disclosure.
5
As of March 31, 2020, the Acquired Fund had net short term capital loss carryforwards of approximately $5,098,795 (approximately $0.89 per share) and net long term capital loss carryforwards of $2,842,570 (approximately $.50 per share). Because the Acquired Fund did not have any capital loss carryforwards as of December 31, 2019, capital loss carryforwards will have no impact on portfolio transitioning. It is anticipated that the Acquired Fund will have no transaction costs to bear in connection with portfolio transitioning.
14.Comment: In the question "Who will pay for the costs associated with the Reorganization" please disclose whether the costs of the Reorganization being borne by Angel and Vivaldi is dependent on whether the Reorganization is consummated. Please also include such disclosure in the section of the Proxy Statement/Prospectus entitled "Expenses of the Reorganization."
Response: The Acquiring Fund has added the following disclosure.
Angel Oak and Vivaldi will bear expenses incurred in connection with the Reorganization, as agreed to by those parties, whether or not the Reorganization is consummated.
The Acquiring Fund has added similar disclos